Donna Lynn (Tate) Librach v. Stanley L. Librach , 575 S.W.3d 300 ( 2019 )

In the Missouri Court of Appeals
€astern District
DIVISION FOUR
DONNA LYNN (TATE) LIBRACH, ) No. ED106684
)
Appellant, ) Appeal from the Circuit Court
) of St. Louis County
VS. )
) Honorable Sandra Farragut-Hemphill
STANLEY L. LIBRACH, )
)
Respondent. ) FILED: May 14, 2019
Introduction
Donna Lynn (Tate) Librach (“Mother”) appeals from the trial court’s 2018 judgment (the
“2018 Final Judgment”) awarding joint physical and legal custody of youngest child (“A.L.”) to
Mother and Stanley L. Librach (“Father’’), emancipating and eliminating child support for oldest
child (“J.L.”), awarding Father make-up visitation for A.L., and denying Mother’s request for
attorneys’ fees. On appeal, Mother raises three points. In Point One, Mother alleges that the
trial court erred in sua sponte statutorily emancipating J.L. and reducing child support to only
one child. In Point Two, Mother asserts that the parenting plan is against the weight of the
evidence because the trial court did not give proper weight to the recommendations of the
guardian ad litem (the “GAL”), and the trial court plainly erred by not allowing the children to
testify. In Point Three, Mother claims that the trial court abused its discretion when it denied her
motion for attorneys’ fees.
The record before us lacks sufficient evidence regarding J.L.’s education to support the
trial court’s finding of emancipation. However, the record demonstrates that the parenting plan
entered by the trial court was not against the weight of the evidence, and that the trial court did
not abuse its discretion in denying Mother’s request for attorneys’ fees. Accordingly, we affirm
in part and reverse and remand in part for the trial court to modify Father’s obligation for child
support consistent with this opinion.
Factual and Procedural History
Mother and Father married and had two children; J.L. and A.L. Mother and Father
divorced in 2008. The judgment and dissolution decree awarded Mother and Father joint legal
and physical custody of J.L and A.L. The original judgment was modified in 2011 (the “2011
Modification”) to implement a new parenting plan. The 2011 Modification awarded Father
Tuesday overnights and every other weekend from Friday evening until Monday morning during
the school year. During the summer months, Father was awarded five weeks of custody.
Pursuant to the 2011 Modification, Father was ordered to pay maintenance and $1011.00 per
month in child support for the two children. Father was also required to maintain health
insurance covering the children and to pay seventy-five percent of the children’s uninsured
expenses.
Father filed a motion seeking family access in December 2015 in which he alleged
Mother intentionally failed to comply with the 2011 Modification by denying him visitation over
the last two years. In February 2016, Father additionally filed a motion for contempt and to
abate child support. In that motion, Father asserted that Mother failed to comply with the 2011
Modification concerning Father’s visitation rights and failed to communicate with Father despite
the fact that Mother and Father shared joint legal and physical custody.
In June 2016, Mother moved to modify custody, visitation, support, and maintenance as
well as to determine amounts due and owing. Mother alleged that Father failed to exercise
visitation under the 2011 Modification, the minor children no longer wished to visit with Father
due to the deterioration of their relationship, and Father alienated himself from the children.
Mother also claimed severe financial hardship due to Father’s failure to pay expenses as ordered,
an increase in costs associated with the care of A.L., and a decrease in her income. Mother
further asserted that Father received a substantial increase in income. Father responded with a
series of motions including a counter-motion to modify custody, visitation, support, and
maintenance.
The matter was heard during May 2017. At the time of trial, J.L. was seventeen years old
and A.L. was fourteen years old. Neither child testified at trial. Father testified that J.L. was
completing her junior year in high school, and that J.L. was very smart and did “fairly well” in
school, even though, in his opinion, J.L. was not living up to her potential. Father also testified
that Mother denied him visitation with both children; however, Father only sought make-up
visitation with A.L. because of J.L.’s age and his deteriorated relationship with J.L. Father
proposed an even-split schedule with A.L., which included overnight visitations. Mother
countered that Father should not be allowed overnight make-up credit because the children
refused to spend overnights with Father.
Following trial, Mother, Father, and the GAL each submitted proposed parenting plans.
The GAL recommended that the best interest of A.L. would be served by awarding joint legal
and physical custody and by designating Mother as the residential parent. The GAL advised that
A.L. not be allowed to decide custody on her own, but that the parents should enforce the
parenting plan. The GAL expressed no safety concerns with Father and proposed awarding
Father custody that included every other weekend and one night per week. Father, A.L., and
A.L.’s counselor would determine the overnights.
In December 2017, the trial court entered judgment (the “2017 Judgment”), granting
Father’s counter-motion to modify the 2011 Modification. The trial court determined that
several substantial changes in circumstances had occurred, namely: (1) Father only received
twelve overnight visits with A.L. from April 2014 through June 2015, (2) A.L. had not
participated in visitation with Father from July 2015 to time of the trial, (3) Mother refused to
facilitate a relationship with Father, and (4) Mother alienated A.L. from Father. The trial court
found that Father’s monthly income was $14,192.00 and Mother’s monthly income was
$3,732.00. The trial court decreased Father’s child support and obligated Father to pay child
support of $523.00 for only one child. The trial court awarded Father make-up visitation with
A.L. and modified the 2011 Modification agreement in order to reflect the make-up visitation
time with A.L. The trial court denied Father’s motion for contempt. The trial court denied both
Mother’s and Father’s requests for attorneys’ fees, finding that both parties had the ability to pay
their own fees and costs.
In response to the 2017 Judgment, Mother filed a motion for new trial and a motion to
amend the 2017 Judgment on multiple grounds, including that the trial court failed to rely on the
GAL’s recommendation, did not allow the children to testify at trial, and did not order child
support for J.L. In March 2018, the trial court entered the 2018 Final Judgment in which it
denied both motions and sua sponte found that J.L. was statutorily emancipated because she
turned eighteen years old after trial and before the 2017 Judgment was issued. Thus, the trial
court clarified its reason for reducing Father’s child support obligations to only A.L. in the
amount of $523.00. The trial court upheld all other provisions of the 2017 Judgment. Mother
now appeals.
Points on Appeal
Mother raises three points on appeal. In Point One, Mother alleges that the emancipation
of J.L. was not supported by the record because J.L. was in high school and only seventeen years
old at the time of trial, and consequently, the trial court did not properly calculate child support.
In Point Two, Mother argues two sub-points: first, Mother avers that the parenting plan was
against the weight of the evidence because the trial court did not give weight to the GAL’s
proposed parenting plan; second, she contends that the trial court plainly erred in refusing to
allow the minor children to testify. In Point Three, Mother posits that the trial court abused its
discretion by not awarding her attorneys’ fees because it failed to take into account the income
disparity between Mother and Father.
Discussion
1. Rule 84.04 Deficiencies in Mother’s Points Relied On
The significant deficiencies of Mother’s brief require us to first determine whether we
should review the substance of Mother’s claims. See Rule 84.04(d).! Mother’s brief must:
(A) Identify the trial court ruling or action that the appellant challenges;
(B) State concisely the legal reasons for the appellant’s claim of reversible error; and
(C) Explain in summary fashion why, in the context of the case, those legal
reasons support the claim of reversible error.
Rule 84.04(d)(1); King v. King, 548 S.W.3d 440, 442-43 (Mo. App. E.D. 2018).
The purpose of Rule 84.04(d) is to clarify the facts, issues, and arguments on appeal.
Buckley v. Tipton, 270 S.W.3d 919, 922 (Mo. App. W.D. 2008). Adherence to the rule is
1 All Rule references are to Mo. R. Civ. P. (2017).
required so that we do not improperly advocate for a party, waste judicial resources, or
misinterpret what a party was arguing. Id.; Jones v. Buck, 400 S.W.3d 911, 914-15 (Mo. App.
S.D. 2013) (internal citation omitted) (“The requirement that the point relied on clearly state the
contention on appeal is not simply a judicial word game or a matter of hypertechnicality on the
part of appellate courts.”). Grouping together “multiple, independent claims, of error rather than
a single claim of error” is multifarious and violates Rule 84.04(d). Griffitts v. Old Republic Ins.
Co., 550 S.W.3d 474, 478 n.6 (Mo. banc 2018) (internal citation omitted). “Multifarious points
relied on are noncompliant with Rule 84.04(d) and preserve nothing for review.” Id. (internal
citation omitted). We are “under no obligation to review briefs which do not conform to the
rules of procedure.” Carden v. Mo. Intergovernmental Risk Mgmt. Ass’n, 258 S.W.3d 547, 557
(Mo. App. S.D. 2008). However, we have discretion to review a brief despite its deficiencies
where meaningful appellate review is possible. King, 548 S.W.3d at 442. Indeed, we prefer to
resolve an appeal on the merits of the case rather than dismissing for failure to comply with Rule
84.04. Maskill v. Cummins, 397 S.W.3d 27, 31 (Mo. App. W.D. 2013).
Here, Mother’s Points Relied On are deficient in various respects. Mother’s Point Two is
characteristic of all three points on appeal. Mother states the following for Point Two:
Parenting Plan as entered by the Court is plain error, and should be remanded to
allow minor children to testify on their behalf, and for proper weight to be given to
the recommendation of the GAL. Her Honor also issued instructions for “make-
up” visitation for [Father] which [was] plain error, an abuse of discretion, and
against the weight of evidence. The Judgment and Amended Judgment both fail to
account for such a discrepancy between the Parenting Plan submitted by the
Guardian Ad Litem, and the Ordered dates with any specificity. (Legal File
documents 20 and 24). In addition, the amount of time ordered by the Court would
have the practical effect of modifying custody from sole physical to [Mother], to at
minimum joint physical between the parties with Father having the majority of the
overnight visitation, while failing to cite a substantial and ongoing change in
circumstances as set forth in Morgan v. Morgan, 497 S.W.3d 359, 370 (Mo. App.
E.D. 2016). Her Honor fails to cite changed circumstances which would make said
modification in the best interest of the children specifically, while only laying out
the changes in circumstances she found. (Legal File Document 24 pg. 2, 6-7). Her
Honor cites the statutory provisions for determining custody as set forth in RSMo
452.375.2, and states that the ongoing change was that the children exercised fewer
visits with Respondent than what was ordered in 2014-15, none in 2015, that
[Mother] interfered with visits, and that Mother alienated child from Father. (Legal
File Document 20 pg. 8—9) Because the Court failed to allow the minor children to
testify, or to give proper weight to the GAL’s recommendation, the orders regarding
custody and make-up time are thus plain error causing a manifest injustice, are clear
abuse of discretion, and the case should be remanded for orders which are in the
best interest of the minor children.
Each of Mother’s three Points Relied On improperly raise factual arguments. See Rule
84.04(d); see King, 548 S.W.3d at 443. Additionally, Mother does not cite any legal reason to
support her claim of reversible error. Rule 84.04(d)(1)(B); Jones, 400 S.W.3d at 915 (noting
Rule 84.04(d) requires the appellant to concisely state the trial court ruling being challenged, the
rule of law the trial court should have applied, and what evidence supports the appellant’s
suggested law). Merely labeling the trial court’s ruling as error, without stating why the trial
court’s action constituted error, does not comply with Rule 84.04(d). Jones, 400 S.W.3d at 915
(internal citation omitted). Further, Mother’s Points Relied On do not include any authorities on
which she relies. See id. In her first Point Relied On, Mother mentions only one case upon
which the trial court relied. Mother then explains her disagreement with the trial court’s reliance
on that case in an argumentative fashion and cites no legal authority to support her contention.
See Rule 85.04(d)(5) (‘Immediately following each ‘Point Relied On,’ the appellant . . . shall
include a list of cases, not to exceed four, and the constitutional, statutory, and regulatory
provisions or other authority upon which that party principally relies.”). Each of Mother’s Points
Relied On present argumentative statements of facts interspersed with abstract statements of law
that do not provide legal reasons to support the claims of reversible error. See King, 548 S.W.3d
at 443; Jones, 400 S.W.3d at 916 (“A point that does not explain why the legal reasons support
the claim of reversible error merits dismissal.”). Finally, Mother’s Points Relied On are
multifarious and preserve nothing for review. See Griffitts, 550 S.W.3d at 478 n.6.
Because the Points Relied On section does not strictly comply with Rule 84.04, we would
be justified in dismissing Mother’s claims. See King, 548 S.W.3d at 442; Jones, 400 S.W.3d at
916. However, we are able to discern Mother’s arguments from her argument section and the
remainder of her brief without expending the effort that would make us her advocate. For that
reason, we gratuitously will exercise our discretion to review Mother’s points on appeal. See
Maskill, 397 S.W.3d at 31.
I. Point One—Emancipation and Child-Support Calculation
A. Standard of Review
We will reverse a trial court’s decision to emancipate a child if it is not supported by
substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies
the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Morgan v. Morgan, 497
S.W.3d 359, 363 (Mo. App. E.D. 2016). “Substantial evidence means ‘competent evidence from
which the trial court could reasonably decide the case.’” T.S.I. v. A.L.(C.)B., 521 S.W.3d 317,
320 (Mo. App. E.D. 2017) (quoting Bauer v. Bauer, 38 S.W.3d 449, 455 (Mo. App. W.D.
2001)). We defer to the trial court’s determinations of credibility and view evidence and
inferences in the light most favorable to the judgment. Id. The trial court has broad discretion
over child visitation in child-custody cases, and we give even more deference to those decisions.
Id.; Morgan, 497 S.W.3d at 363. Even if the evidence could have supported another conclusion,
we will not reweigh that evidence. T.S.I., 521 $.W.3d at 320-21.
B. Analysis
Under Section 452.340.3(5),” a parent’s obligation to make child support payments
terminates when the child reaches the age of eighteen, unless the provisions of Section
452.340.4—5 are met. Section 452.340.4 authorizes support to a physically or mentally
incapacitated child and thus is not applicable to this case. Section 452.340.5 makes clear that:
[ilf when a child reaches age eighteen, the child is enrolled in and attending a
secondary school program of instruction, the parental support obligation shall
continue, if the child continues to attend and progresses toward completion of said
program, until the child completes such program or reaches age twenty-one,
whichever occurs first.
The party seeking to terminate child support bears the burden to prove facts supporting
emancipation. Kay v. Keller, 462 S.W.3d 748, 753 (Mo. App. W.D. 2015) (internal citation
omitted); Scruggs v. Scruggs, 161 S.W.3d 383, 392 (Mo. App. W.D. 2005) (internal citation
omitted). Emancipation is accomplished in three ways: “(1) by express parental consent; (2) by
implied parental consent; or (3) by a change in the child’s status in the eyes of society.” Wilkins
v. Wilkins, 300 S.W.3d 594, 598 (Mo. App. E.D. 2009) (quoting Scruggs, 161 S.W.3d at 390).
The third method of emancipation may be established if the child marries, enters the military, or
voluntarily leaves the parent’s home and has the ability to care for herself. Id. However, a child
may not be deemed emancipated if the child remains enrolled in high school, unless the child
reaches age twenty-one. Section 452.340.5; Denny v. Winton, 184 S.W.3d 110, 118 (Mo. App.
S.D. 2006) (noting an eighteen year-old child attending high school is not emancipated).
Alternatively, if the child has graduated from high school, she will not be deemed emancipated if
she is enrolled in an institution of vocational or higher education by October following
graduation and meets certain additional requirements. Section 452.340.5; Wilkins, 300 $.W.3d
? All statutory references are to RSMo (2016), unless otherwise indicated.
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at 598 (noting a child will not be emancipated if the child is continuously enrolled in vocational
school or college after high school if certain conditions are met).
As the party seeking the reduction in child support, Father had the burden of proving the
required change in circumstance’to support his request. Kay, 462 S.W.3d at 753; Scruggs, 161
S.W.3d at 392. The trial court created an ambiguous procedural posture because the record
shows that Father did not seek a finding of emancipation for J.L. The record demonstrates that
neither Mother nor Father expressly consented to emancipation of J.L., nor did they impliedly
consent. See Randolph v. Randolph, 8 S.W.3d 160, 164 (Mo. App. W.D. 1999) (finding the
parents had not expressly or impliedly consented to emancipating child who had moved out
where the parents’ actions showed they did not want the child to leave and provided some
financial support). Instead, the trial court sua sponte made a finding of emancipation for J.L.
only when it entered the 2018 Final Judgment.
We therefore consider whether sufficient facts are present in the record to support the
trial court’s statutory finding of emancipation. Wilkins, 300 S.W.3d at 598; Scruggs, 161
S.W.3d at 392-93 (finding the trial court erred in emancipating child where the record lacked
competent evidence to support emancipation). J.L.’s age is not an issue because the record is
clear that J.L. turned eighteen years old before the trial court issued the 2017 Judgment. The
record shows that at the time of trial in 2017, J.L. was attending high school as a junior and was
academically successful. The record lacks any further information regarding J.L.’s education.
The record suggests that the trial court sua sponte found J.L. to be emancipated merely because
she turned eighteen years old during the pendency of the proceedings. From the evidence
adduced at trial, J.L. was a junior in high school in May 2017. Assuming J.L. continued her
10
education, she would have been a senior in high school when the 2018 Final Judgment was
entered in March, 2018.
Curiously, the trial court noted that it found J.L. emancipated because neither Mother nor
J.L. produced any evidence that J.L. was attending a school of secondary education to merit
awarding child support. The trial court seemingly justified its finding of emancipation upon the
absence of evidence that either Mother or J.L. notified Father that J.L. continued into her senior
year of high school either before trial or after she turned eighteen years old following trial. See
Beeler v. Beeler, 820 S.W.2d 657, 661 (Mo. App. W.D. 1991) (finding emancipation established
where the child reached age eighteen prior to the hearing and was not attending high school).
The trial court’s reliance on Beeler is misguided as the record contains no evidence that
J.L. was not continuing to attend and progress toward completion of high school after she turned
eighteen years old. See Denny, 184 S.W.3d at 118 (finding the trial court did not err in requiring
the father to continue paying child support for eighteen year-old child progressing towards
completion of high school). The trial court’s fundamental error is that J.L. had no duty to notify
Father that she was attending her final year of high school. Section 452.340.5 does not impose
the duty of notification to the child-support obligated parent on children attending high school,
but only on children who have graduated from a secondary school and are attending an
institution of vocational or higher education. Section 452.340.5.° The record lacks any evidence
that either condition has been satisfied. Further, logically, neither J.L. nor Mother could have
been expected to present such evidence at trial because, during the trial, J.L. was only seventeen
3 Upon reaching the age of 18, the parental support obligation continues if the child continues to attend and
progresses toward completion of the secondary school program of instruction. A child’s obligation to submit school
transcripts or similar official documents substantiating the child’s enrollment in order to remain eligible for child
support payments applies only to the child’s enrollment in institutions of vocational or higher education, not high
school. Section 452.340.5.
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years old and was attending her junior year of high school. Regardless of any assumption the
trial court may have made, the statutory notice requirement of Section 452.340.5 simply did not
apply and could not provide a legal basis for emancipation. See id.
We further note for future guidance to the trial court, that even had J.L. graduated high
school after she turned eighteen years old, proof of her enrollment in post-secondary education
still would not mandate a sua sponte finding of emancipation. See Wilkins, 300 S.W.3d at 600
(finding “non-compliance with the notice requirements of Section 452.340.5 does not result in
emancipation”); see also Rogers v. Rogers, 87 8.W.3d 368, 373 (Mo. App. W.D. 2002) (failing
to give a parent a college transcript does not by itself cause that child to be emancipated). Father
could have asked for proof of J.L.’s continued enrollment in high school after J.L. turned
eighteen years old if he had doubts as to whether she was continuing to attend high school. J.L.
then could have been required to produce proof of enrollment or risk losing child support. See
Section 452.340.5; Wilkins, 300 S.W.3d at 600. Father did not do so. The record is totally void
of suggestion that Father offered evidence of J.L.’s emancipation so as to shift the burden of
notification onto J.L. or Mother.
Because the record lacks any evidence that J.L. met the conditions for emancipation
under Section 452.340.5, the trial court erred in sua sponte finding J.L. was emancipated.
Section 452.340.3—5. The trial court’s reduction of Father’s child support obligation to J.L. was
based solely upon its finding of emancipation. The record provides no other basis to modify
Father’s child support obligation to J.L. Because the trial court erred in sua sponte declaring J.L.
emancipated, we remand this matter to the trial court with instructions to reinstate, retroactive to
the date of its 2018 Final Judgment, Father’s child support obligation to J.L. Point One is
granted.
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Hil. Point Two—Parenting Plan
In her second point on appeal, Mother presents two distinct sub-points. These sub-points
are deficient and difficult to ascertain, as previously referenced in our Rule 84.04 discussion. In
particular, these sub-points suggest two different standards of review and are multifarious. See
Griffitts, 550 S.W.3d at 478 n.6. However, given the straightforward nature of the legal issues
presented, we elect to exercise our discretion to review Mother’s two arguments. See Maskill,
397 S.W.3d at 31. First, Mother contends the parenting plan is against the weight of the
evidence because the trial court gave little to no weight to the GAL’s recommendations. Next,
Mother alleges that trial court committed plain error by not allowing the children to testify as to
why they did not wish to spend time with Father.
A. GAL Recommendation
Mother maintains the trial court did not give weight to the GAL’s parenting plan
recommendations, thereby rendering its judgment against the weight of the evidence. Because
this matter is a court tried case, we review Mother’s claim under the Murphy v. Carron standard.
T.S.L, 521 S.W.3d at 320 (citing Murphy, 536 S.W.2d at 32). We will affirm the trial court’s
judgment unless it is not supported by substantial evidence, it is against the weight of the
evidence, or it erroneously declares or applies the law. Murphy, 536 S.W.2d at 32. The trial
court has broad discretion regarding parenting plans and child custody arrangements. Morgan,
497 §.W.3d at 363.
We use a great deal of caution when considering whether a child custody judgment
should be reversed as against the weight of the evidence. Tienter v. Tienter, 482 S.W.3d 483,
489 (Mo. App. E.D. 2016). “The trial court has the sole responsibility for determining custody.”
Morgan, 497 S.W.3d at 373 n.8 (quoting In re Marriage of Harris, 446 S.W.3d 320, 330 (Mo.
13
App. S.D. 2014)). Importantly, a GAL is not required to make a recommendation, and even
where the GAL does make a recommendation, the trial court is not required to follow the
opinion. J.D. v. L.D., 478 S.W.3d 514, 518 (Mo. App. E.D. 2015) (citing In re Marriage of
Harris, 446 S.W.3d at 330). However, the GAL’s input as to custody is valued because “a
GAL’s principal allegiance is to the court, and his function is to advocate what he believes to be
the best interests of the child by providing the court requisite information bearing on those
interests untainted by the parochial interests of the child’s parents.” J.D., 478 S.W.3d at 518
(internal quotation omitted). “[P]ublic policy in Missouri [dictates] that frequent, continuing,
and meaningful contact with both parents is in the best interest of the child and that any custody
determination should further this policy.” Beshers v. Beshers, 433 S.W.3d 498, 508 (Mo. App.
S.D. 2014) (internal quotations omitted); see also Section 452.375.1(3) (“Joint physical custody
shall be shared by the parents in such a way as to assure the child of frequent, continuing and
meaningful contact with both parents[.]”). |
Here, the trial court found joint legal and physical custody to be in the best interests of
A.L. Mother, Father, and the GAL each proposed an arrangement of joint legal and physical
custody for A.L. The trial court varied from each of the proposed arrangements to provide
Father make-up visitation. See Beshers, 433 S.W.3d at 508 (noting that joint legal and physical
custody does not require parenting time be equally divided). The trial court was solely
responsible for determining final custody of A.L. See Morgan, 497 S.W.3d at 373 n.8 (quoting
In re Marriage of Harris, 446 S.W.3d at 330). The trial court was not compelled to follow the
GAL’s plan—or the plan of either parent. See J.D., 478 S.W.3d at 518 (citing In re Marriage of
Harris, 446 S.W.3d at 330). Moreover, the record amply reflects that the trial court properly
considered the relevant factors under Section 452.375.2 to determine the best interest of A.L.,
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including but not limited to: the GAL’s recommendations, A.L.’s need to have frequent and
meaningful contact with Father, both Mother and Father having submitted joint parenting plans,
and Mother having previously withheld visitation from Father. See Section 452.375.2 (listing
factors to be considered when determining the best interests of the child) . Morgan, 497 S.W.3d at
372 (internal citations omitted) (noting we may not reweigh the evidence and we may presume
the trial court considered the statutory factors to determine the best interests of the child). Given
the record before us, we are not persuaded that the trial court’s modification of the parenting plan
is against the weight of the evidence.
B. Children’s Testimony
As a second focus of her second point on appeal, Mother posits that both A.L. and J.L.
should have been permitted to testify at the trial in order to make their wishes and parental
preference known. Mother claims that, at a pre-trial conference, the trial court decided that the
children would not be allowed to testify. Mother did not object to the trial court’s decision not
to have the children to testify. Mother contends that she had no opportunity to object to the trial
court’s decision because she made no formal motion requesting the children to testify on which
the trial court could have ruled. Because Mother did not preserve for appeal her objection to the
trial court’s decision to not have the children testify, she requests plain-error review. See
Lindsey v. Lindsey, 336 S.W.3d 487, 492 (Mo. App. E.D. 2011) (internal citations omitted)
(noting that despite an appellant’s failure to preserve an issue for appeal, we may review for
plain error under Rule 84.13(c)).
“We will reverse for plain error in civil cases only in those situations when the injustice
of the error is so egregious as to weaken the very foundation of the process and seriously
undermine confidence in the outcome of the case.” Rouse v. Cuvelier, 363 S.W.3d 406, 418
15
(Mo. App. W.D. 2012) (internal quotation omitted). In applying the two-step plain-error
standard, we must first determine whether the trial court facially committed plain error affecting
the appellant’s substantial rights. J.D., 478 S.W.3d at 518; Bedwell v. Bedwell, 51 S.W.3d 39,
43 (Mo. App. W.D. 2001). Plain error means error that is “evident, obvious and clear[.]”
Bedwell, 51 S.W.3d at 43. If we find plain error, then we determine whether the error resulted in
manifest injustice or a miscarriage of justice. J.D., 478 S.W.3d at 518.
“TA] trial court has discretion over whether to allow children to testify as to their
‘custodial preference.” Prach v. Westberg, 455 S.W.3d 513, 519 (Mo. App. W.D. 2015) (internal
citation omitted) (upholding the trial court’s refusal to let the children testify based on the best
interests of the children). In exercising this discretion, a trial court considers the best interests of
the child as well as other evidentiary issues, such as the probative value of the child’s testimony.
See Moy. ers v. Lindenbusch, 530 S.W.3d 646, 655 (Mo. App. W.D. 2017) (noting custodial
preferences are one of many factors a trial court considers in a modification proceeding).
The record reflects that the trial court heard from Mother about the children’s troubled
relationship with Father, thus indicating the children’s preference. See Prach, 455 S.W.3d at
519. Father’s decision not to seek make-up visitation with J.L. due to the deterioration of their
relationship also was presented to the trial court. The trial court was made aware of the
acrimony between Father and the children. Any testimony from the children regarding their
parental preferences would have been merely cumulative. See D.S.P. v. R.E.P., 800 S.W.2d 766,
771 (Mo. App. E.D. 1990) (finding the trial court in a dissolution case did not err in excluding
what would have been only cumulative testimony from mother regarding children’s happiness).
The trial court’s parenting plan permitted Father make-up visitation and also allowed Mother
significant time with A.L. Once the make-up visitation was completed, the trial court reverted to
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the prior parenting schedule. Further, the GAL interviewed A.L. and represented A.L.’s interests
at trial; the GAL testified that she had no safety concerns should Father be allowed increased
custody. See Lindsey, 336 S.W.3d at 493 (recognizing that a GAL serves as the legal
representative of the child, makes the wishes of the child known, and is duty-bound to protect the
best interests of the child). The GAL further recommended that A.L. not be allowed to
determine custody, but that the parents should enforce the visitation schedule. Nothing in the
record indicates that the trial court failed to consider A.L.’s wishes. See T.S.I., 521 S.W.3d at
320 (noting a trial court has broad discretion in child visitation cases); Prach, 455 S.W.3d at 519.
Mother has not shown that the trial court committed any error, much less plain error, in
declining to allow the children testify at trial. See J.D., 478 S.W.3d at 518; Lindsey, 336 S.W.3d
at 493. Finding no error, plain or otherwise, we deny Point Two.
IV. Point Three—Attorneys’ Fees
In her final point on appeal, Mother argues that the trial court erred in refusing to award
her attorneys’ fees because Father had a greater annual income and was responsible for the
greater portion of litigation. |
A. Standard of Review
A trial court has wide discretion to award attorneys’ fees. Parciak v. Parciak, 553 S.W.3d
446, 455 (Mo. App. E.D. 2018). Thus, our review of an award of attorneys’ fees is limited to an
abuse of the trial court’s considerable discretion. Id. We presume the trial court’s ruling with
respect to attorneys’ fees is correct. Courtney v. Courtney, 550 S.W.3d 522, 531 (Mo. App. E.D.
2017); Morgan, 497 S.W.3d at 378 (internal citation omitted). In order to show abuse of
discretion, the party challenging the trial court’s decision regarding attorneys’ fees has the
burden of showing that the trial court’s judgment “is clearly against the logic of the
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circumstances and so arbitrary and unreasonable as to shock one’s sense of justice.” Parciak,
533 S.W.3d at 455 (internal citation omitted).
B. Analysis
Parties in domestic relations cases are generally responsible for paying their own
attorneys’ fees. Morgan, 497 S.W.3d at 378. However, the trial court may award attorneys’ fees
in modifications to dissolution proceedings under Section 452.355.1, which provides:
[uJnless otherwise indicated, the court from time to time after considering all
relevant factors including the financial resources of both parties, the merits of the
case and the actions of the parties during the pendency of the action, may order a
party to pay a reasonable amount for the cost to the other party . . . and for attorneys’
fees[.]
While Section 452.355.1 permits the trial court to award attorneys’ fees, the statute does
not require or compel an award. Davis v. Schmidt, 210 S.W.3d 494, 512 (Mo. App. W.D. 2007).
The party seeking attorneys’ fees must prove entitlement to such an award. Morgan, 497 S.W.3d
at 378. The fact that one party’s income exceeds the other party’s income does not compel the
trial court to award attorneys’ fees. Parciak, 533 S.W.3d at 456 (finding significant income
disparity did not entitle the wife to attorneys’ fees under the abuse-of-discretion standard);
Courtney, 550 S.W.3d at 532; Adams v. Adams, 51 S.W.3d 541, 549 (Mo. App. W.D. 2001)
(internal citation omitted) (“[T]he fact that [hJusband’s income exceeds [w]ife’s, standing alone,
does not compel an award of attorney fees.”). Indeed, income disparity is but one of the relevant
factors for the trial court to consider; a trial court also considers the other Section 452.355.1
factors—the merits of the case and party actions causing attorneys’ fees. Morgan, 497 S.W.3d at
378 (upholding the trial court’s award not on the basis of income disparity but on the merits of
the case and party actions). “[A]n award of attorney[s’] fees under [S]ection 452.355.1
represents the exception, rather than the rule.” Id. (quoting Davis, 210 S.W.3d at 512).
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Here, the record shows that the trial court considered all factors and credible evidence in
~ declining to award attorneys’ fees to either Father or Mother. Specifically, the trial court
acknowledged the income disparity between Father and Mother, noting that Father’s income was
almost four times Mother’s income. See Parciak, 533 S.W.3d at 456; Courtney, 550 S.W.3d at
532 (finding income disparity alone supports but does not compel award of attorneys’ fees).
However, the trial court also found both parties had the ability to pay their own costs and fees.
Additionally, the trial court awarded Father make-up visitation and modified the child-custody
arrangement in his favor, demonstrating that the trial court found Father presented a meritorious
case. See Morgan, 497 S.W.3d at 370-80 (finding the trial court’s determination that the father
presented a meritorious case supported his attorneys’ fees award under Section 452.355.1).
Although Father presented a meritorious case, the trial court was well within its discretion to
decline to award fees to either parent. See Siegfried v. Remaklus, 95 S.W.3d 107, 115 (Mo.
App. E.D. 2001) (upholding the trial court’s refusal to award attorneys’ fees to either party where
mother instituted the proceedings, mother had the ability to pay, and father was the prevailing
party). Further, the record shows that both parties contributed to the litigation expenses by filing
multiple motions. See Morgan, 497 S.W.3d at 380 (internal citations omitted) (recognizing that
a trial court may consider domestic litigants’ actions in bringing motions and increasing fees
when deciding whether to award attorneys’ fees); see also Adams, 51 S.W.3d at 549 (upholding
the trial court’s refusal to award attorneys’ fees to mother despite finding an award could have
been supported by husband’s greater income and the fact that husband necessitated the action by
failing to pay court-ordered maintenance). Holistically viewing the Section 452.355.1 factors,
Mother’s argument that the trial court abused its discretion in refusing to award her attorneys’
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fees is unavailing. The trial court properly exercised its discretion in its decision to deny an
award of attorney’s fees to either party. See Parciak, 553 S.W.3d at 455.
We find that the trial court did not abuse its discretion in deciding that Mother and Father
should each pay for their own attorneys’ fees. Point Three is denied.
Conclusion
We reverse the judgment and remand Point One with instructions for the trial court to
enter a new judgment providing child support for J.L. consistent with this opinion. We affirm
the judgment of the trial court on Points Two and Three.
kag A Of A
KURT S. ODENWALD, Presiding Judge
Gary M. Gaertner, Jr., J., concurs.
Colleen Dolan, J., concurs.
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