Cort William Andrews v. Tacildayus Andrews , 452 S.W.3d 150 ( 2015 )

In the
Missouri Court of Appeals
Western District

CORT WILLIAM ANDREWS, 
 WD76964
Respondent,  OPINION FILED:
v. 
 JANUARY 13, 2015
TACILDAYUS ANDREWS, 

Appellant. 


Appeal from the Circuit Court of Andrew County, Missouri
The Honorable Michael J. Ordnung, Judge
Before Division One: Thomas H. Newton, P.J.,
Lisa White Hardwick, Anthony Rex Gabbert, JJ.
Tacildayus Andrews (“Mother”) appeals the circuit court‟s judgment denying her motion
for leave to relocate with the two minor children. Mother raises two points on appeal. First,
Mother argues that the trial court erred when it denied her motion to modify without further
presentation of evidence because the trial court imposed a one day limitation on the presentation
of evidence at trial. Second, Mother argues that the trial court erred when it entered its judgment
giving Cort Andrews (“Father”) sole custody of two minor children because the trial court relied
on evidence that was not properly received into evidence at trial. We affirm.
Factual Background
Mother and Father were divorced on May 25, 2010. The parties were awarded joint legal
and physical custody of their two children. In June 2012, Mother filed a motion to modify and
for leave to relocate. Father filed a cross-motion to modify. Mother also filed a motion for
appointment of a guardian ad litem (“GAL”), which was granted on January 29, 2013. The
motions to modify and for leave to relocate were heard on May 30, 2013.
At the time of the hearing, the parties‟ two children were five and ten years old. Both
Mother and Father were officers in the Army and hold the rank of Lieutenant Colonel. Mother
and Father were stationed at Fort Leavenworth. Mother applied for a battalion commander
position. The Army granted Mother‟s request for a battalion commander position and assigned
her to Fort Hood, Texas. The command is expected to last 18 to 24 months and began in July
2013. After her assignment at Fort Hood, Mother will be reassigned somewhere else. Father
planned to retire from the Army in November 2014 and continue to reside in Fort Leavenworth.1
The parties and their children have lived in Fort Leavenworth for four years. Prior to
that, they had approximately six other military postings. Since the divorce, the children have
alternated weeks between parents. The children have grown accustomed to their homes, schools,
church, and community. The children also have performed well in school.
At the hearing, only Mother and Father testified. Although other potential witnesses were
present at the hearing, they were not called to testify. At the close of the evidence, GAL
reminded the court of her report and recommendations. The court asked GAL if she wished to
1
There was no indication in the court documents or briefs whether or not Father actually retired from the
Army as planned in November 2014.
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add, amend, or change anything. Neither Mother nor Father objected to her report and
recommendations or to the court‟s consideration of the same.
The circuit court denied Mother‟s motion to modify and relocate and granted Father‟s
motion to modify. The court found that it was in the children‟s best interest if the parties
continued to share joint legal and physical custody of the parties‟ minor children with the home
of Father designated the address of the children for mailing and educational purposes. The
parenting plan was also revised. Mother appeals.
Time Limitations
In her first point on appeal, Mother argues that the trial court erred in denying her motion
to modify without further presentation of evidence because trial courts must remain flexible
when more time is required to more fully develop key issues. Mother contends that the trial
court imposed a one day limitation on the presentation at trial even though there was a need to
hear testimony from the children‟s live-in maternal grandmother and from the children‟s school
teachers and principals. We find no error.
“A trial court has discretion to limit the time for presentation of evidence and review of
the limitation is for abuse of discretion.” Colquitt v. Muhammad, 86 S.W.3d 144, 152 (Mo. App.
2002). “[T]ime limitations should be imposed carefully and only after consultation with
counsel.” B.J.D. v. L.A.D., 23 S.W.3d 793, 797 (Mo. App. 2000). “A party who complains about
the exclusion of evidence should make an offer of proof to inform the trial court of the content of
the evidence proffered and to allow this [C]ourt to determine the prejudicial effect of the
exclusion.” Colquitt, 86 S.W.3d at 152. If time does not permit, an offer of proof may be made
in a post-hearing written motion. Young v. Pitts, 335 S.W.3d 47, 60 (Mo. App. 2011).
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Mother argues that in the judge‟s chambers the morning of trial, the judge stated that the
trial court would conclude at about 4:30 p.m. that day and that the case would be tried for only
one day. However, no record of this alleged chambers meeting regarding the time limitation was
ever announced on the record. In fact, in response to Mother‟s Motion to Vacate and Reopen the
Case, the court adamantly denied any such limitation. The court stated, “the trial court did not
limit or restrict either party in the presentation of their respective cases…[Mother‟s] assertion
that any witness was „unable‟ to testify on [Mother‟s] behalf is simply untrue.”
Interestingly, the assertion of the alleged time limitation was not raised by Mother‟s trial
counsel in her motion for a new trial but was instead asserted by Mother‟s appellate counsel who
was not even present at trial—let alone any in-chambers pretrial conference. Absent from the
record is an affidavit or testimony by Mother‟s trial counsel regarding the time limitation.
The only evidence on the record that points to a time limitation was a remark made by
Father‟s counsel. He stated, “Well, Judge, you assured us that we need to be done about 4:30[.]”
However, this remark was made after Father‟s counsel objected to repeated questions regarding
matters that predated the divorce. The court responded to these questions and objections by
stating that “this is going to evolve into a big mess, it‟s going to take forever, if you people want
to do this.” The court‟s response actually suggests that the parties were not limited to one day to
present evidence.
Furthermore, no objections to the alleged time limitation or an offer of proof were ever
made at trial. While a post-hearing written motion with an offer of proof is permitted, such can
be done only where time does not permit an offer of proof at the close of the evidence. See
Young, 335 S.W.3d at 60. Here, there is no indication on the record that Mother did not have
time to make an offer of proof regarding what evidence would have been presented had there
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been additional time. Thus, without a showing that there was a time limitation on the
presentation of evidence or that Mother made a proper offer of proof, we find no error. Point one
is denied.
GAL’s Findings and Recommendations
In her second point on appeal, Mother argues that the trial court erred when it entered its
judgment giving Father sole custody because trial courts are not permitted to consider evidence
that was not properly received into evidence at trial. Mother contends that trial court relied on
both the GAL‟s Findings and Recommendations, a document never offered as or admitted into
evidence, and statements that GAL made at trial, despite GAL never being sworn in, testifying
under oath, or subject to cross-examination. We find no error.
In a court-tried case, this Court must affirm the judgment of the trial court unless there is
no substantial evidence to support it, it is against the weight of the evidence, or it erroneously
declares or applies the law. Huffman v. Huffman, 11 S.W.3d 882, 885 (Mo. App. 2000). We will
“defer to the trial court‟s determinations of credibility, viewing the evidence and permissible
inferences therefrom in the light most favorable to the decree and disregarding all contrary
evidence and inferences.” In re Marriage of Fuldner, 41 S.W.3d 581, 587 (Mo. App. 2001).
We first note that in Mother‟s point relied on she states that the court awarded Father sole
custody of the children. However, the court‟s judgment to modify never states that Father is to
have sole custody of the children. Instead, the judgment explicitly states several times that “the
parties will continue to share joint legal and physical custody” of the children. Because of
Mother‟s relocation to Texas, the court modified the parenting plan and designated Father to
have residential custody of the children for mailing and educational purposes.
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In GAL‟s report, she recommended that the children remain with the Father during the
school year while allowing Mother to have liberal visitation. At the close of the evidence, the
court asked GAL if she had anything to add, amend, or change from her recommendation. The
only portion of the report that GAL amended was regarding the schools in Fort Hood compared
to the schools in Fort Leavenworth. The GAL amended the report to reflect that the school
where Mother had enrolled the children in Fort Hood was equally good as the school the children
attended in Fort Leavenworth.
While GAL‟s findings and recommendation report does not have a file stamp dated on it,
the docket sheet reflects that it was received by the court on the day of the motion hearing.
Presumably it was filed at the time of the hearing or before because the court states that it had the
recommendation. Regardless, “[t]he mere filing of a document does not put it into evidence.” In
re Morrison, 987 S.W.2d 475, 479 (Mo. App. 1999).
Despite the court asking GAL about adding or amending her recommendation, neither
Mother nor Father objected to the GAL‟s report or her remarks. As a result, “[f]ailure to object at
the earliest opportunity to the admission of evidence or argument of counsel constitutes a waiver
of claim.” State v. Cosby, 976 S.W.2d 464, 467 (Mo. App. 1998).
Even if, however, “the report and statements contained therein did indeed constitute
inadmissible evidence, that alone would not provide a basis for finding reversible error.” Love v.
Love, 72 S.W.3d 167, 173 (Mo. App. 2002). “[I]n a court-tried case, erroneous admission of
evidence only requires reversal where there is an absence of other sufficient competent evidence
to support the decree.” Sanfilippo v. Sanfilippo, 637 S.W.2d 77, 79 (Mo. App. 1982).
Here, the record is replete with sufficient competent evidence to support the court‟s
judgment. The court found that both Mother and Father are loving and caring parents, which
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was consistent with and uncontradicted by the parties‟ testimony. The court also determined that
the children should predominately reside with Father because he provided a more stable living
environment. This determination is supported by the testimony of both parties.
Mother testified that she was relocating to Fort Hood, Texas for 18 to 24 months.
Following her service there, Mother would be relocated somewhere else. Father testified that he
was retiring from the Army in November 2014 and was planning on staying in the Fort
Leavenworth area. The parents testified that they had resided in the Leavenworth area for the
past four years and that the children had become well adjusted and were doing well in school.
The children have also made friends and are very involved in church and extracurricular
activities. Furthermore, the children have extended family located near them, including Father‟s
Mother who cared for the children for approximately thirteen months when both Father and
Mother were deployed overseas. With this evidence on the record, there is sufficient competent
evidence, aside from GAL‟s report, that supports the court‟s judgment. Thus we find no error.
Point two is denied.
We conclude, therefore, that the circuit court did not error in denying Mother‟s motion to
modify because Mother failed to show that there was a time limitation on the presentation of
evidence or make a proper offer of proof, and there was sufficient competent evidence on the
record, without GAL‟s report and recommendations, to support the court‟s conclusion. We
affirm the circuit court‟s judgment.
/s/
Anthony Rex Gabbert, Judge
All concur.
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