446 S.W.3d 320
Mo. Ct. App.2014Background
- Parents divorced; dispute over custody of their minor child (child diagnosed with autism/Tourette's). GAL appointed and submitted a parenting plan proposing joint legal and joint physical custody with Mother as primary caregiver when not with Father.
- Trial court found both parents fit for joint legal custody but awarded Mother sole physical custody in the body of the judgment, while incorporating the GAL's parenting plan (which described joint physical custody periods for Father: spring break, summer, certain holidays, alternating major holidays).
- Father did not object at trial to the GAL’s plan or request further hearing; counsel waived cross-examination of the GAL and said they would “rely” on the plan; Father filed a post-judgment motion that did not raise the judgment/plan language inconsistencies or sufficiency-of-evidence claims.
- On appeal Father argued (1) inconsistency between “sole physical custody” in the judgment and “joint physical custody” in the incorporated plan, (2) that the time awarded to Father was legally “joint physical custody,” and (3) the custody award lacks substantial evidence.
- Majority (Judge Lynch) held Father failed to preserve all three points for appeal and affirmed the judgment. A concurring/dissenting opinion (Judge Rahmeyer) would address merits of Points II and III, finding the custody time not legally significant and that substantial evidence supported the court’s custody decision.
Issues
| Issue | Father’s Argument | Mother/Court’s Argument | Held |
|---|---|---|---|
| 1. Inconsistency between judgment language ("sole physical custody") and incorporated parenting plan ("joint physical custody") | Judgment contains scrivener’s error; trial court intended joint physical custody as plan shows | Issue not raised below; trial court never given chance to correct; therefore waived | Not preserved; Point denied (appeal affirmed) |
| 2. Whether awarded parenting time is "joint physical custody" as matter of law | Amount of time awarded (spring break, summer, many holidays) is "significant" and therefore equals joint physical custody | Trial court discretion to label custody; Father failed to preserve objection; even on merits schedule not legally significant enough | Not preserved (majority); on merits Judge Rahmeyer would deny — time not "significant" as matter of law |
| 3. Sufficiency of evidence supporting custody allocation | Custody award to Mother not supported by substantial evidence | Father waived objections to GAL plan and invited court to rely on it; GAL plan (and other trial evidence) constituted admissible, substantial evidence | Not preserved (majority); Judge Rahmeyer would review and find substantial evidence supports judgment |
Key Cases Cited
- Brown v. Brown, 423 S.W.3d 784 (Mo. banc 2014) (preservation rule; issues must be presented to trial court to be considered on appeal)
- Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976) (standard of review for bench trial judgments)
- Thorp v. Thorp, 390 S.W.3d 871 (Mo. App. E.D. 2013) (deference to trial court on custody; abuse of discretion standard)
- Washington v. Barnes Hosp., 897 S.W.2d 611 (Mo. banc 1995) (expert opinion admissibility — foundation must be objected to preserve challenge)
- Loumiet v. Loumiet, 103 S.W.3d 332 (Mo. App. W.D. 2003) (definition and significance inquiry for joint physical custody)
- Houston v. Crider, 317 S.W.3d 178 (Mo. App. S.D. 2010) (framework for substantial-evidence challenge on appeal)