Gordon D. AUBUCHON, Respondent, v. Kimberley H. HALE, Appellant.
No. ED 101126
Missouri Court of Appeals, Eastern District, DIVISION ONE.
FILED: December 2, 2014
Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 27, 2015
453 S.W.3d 318
No jurisprudential purpose would be served by a written opinion. We have, however, provided the parties a memorandum setting forth the reasons for our decision. The judgment of the trial court is affirmed under Rule 84.16(b).
Erin R. Griebеl, Gabriel Harris, 135 S. LaSalle St., Suite 2300, Chicago, IL 60603, for respondent.
OPINION
CLIFFORD H. AHRENS, Judge
Kimberly Hale (Mother) and Gordon Aubuchon (Father) appeal the trial court‘s judgment in post-dissolution proceedings involving child custody and support, relocation, and attorney fees. We affirm.
Background
The parties divorced in September 2009 and received joint legal and physical custody of their two daughters, H.A. and M.A. Father was ordered to pay child support of $920 per month. In November 2009, Mother sought a temporary restraining order against Father based on allegations that he had molested M.A. Mother voluntarily dismissed that petition weeks later but, in February 2010, Father was indicted on two counts of statutory sodomy and was prohibited contact with the children as a condition of his bond. Father would be acquitted after a jury trial in February 2011, and Children‘s Division would eventually reverse its probable cause determination from “substantiated” to “unsubstantiated.”
In the interim, however, in May 2010, Mother filed a motion seeking sole custody of the children and approval to relocate to Texas. While the motion was pending, in September 2010 Father‘s child support obligation was increased to $1,680 per month. In July 2011, the trial сourt entered its judgment denying Mother‘s motions and, in light of Father‘s acquittal, ordered therapeutic measures to normalize relations between Father and the children. Mother appealed that judgment and, in December 2012, this court reversed and remanded, holding that the evidence demonstrated changed circumstances warranting consideration whether custody modification and relocation would serve the children‘s best interests. Aubuchon v. Hale, 384 S.W.3d 217 (Mo.App.E.D.2012). We specifically found the record lacking any evidence that the parties could co-parent such that joint custody remained a viable option. Id. at 223.
On remand, in December 2013, the trial court heard additional evidence to update the record on the status of the parties and their daughters (then age 14). The court‘s resulting findings and orders are the subjects of this second appeal. In sum, the court found that the allegations of abuse against Father were not credible and that Mother deliberately—and quite successfully—estranged and alienated the children from Father. Ultimately, however, the
Though the trial court felt constrained to grant Mother sole custody for the children‘s best interests, Mother‘s bad faith proved fatal to her motion to relocate them to Texas. On that question, the court found that Mother‘s desire to move was largely motivated by her wish to evade Father and escape the court‘s jurisdiction, noting that Mother had thwarted and would continue to obstruct Father‘s attempts to re-establish a relationship with the children even in violation of court orders. Additionally, the court judged that relocation was not in the children‘s best interests in that, after years оf turbulence, they were finally well-adjusted to their home, school, and community in St. Charles County.
Also before the trial court on remand were financial matters involving child support and attorney fees. The court found that both parties were under-employed. Mother was employable as a certified teacher but worked as an accounting clerk earning $2,400 per month. Fathеr‘s monthly income in industrial sales had decreased substantially since 2011, from over $12,000 to just $4,333. Mother had real estate and stock assets totaling $558,000. Father had investment accounts totaling $796,000. On remand, the court relied on the foregoing income figures, stated in the parties’ respective updated income and expense statements, to decrease Father‘s child support obligation to $975 per month.
Finally, Mother sought to recover her attorney fees of $47,648 for the first appeal and of $35,684 on remand. The court ordered Father to pay $10,000 toward Mother‘s appellate legal fees, as she was the prevailing party on appeal, but it granted no award for remand fees, leaving the parties to pay their own bills.
Mother appeals and asserts that the trial court erred by: (1) denying her motion to relocate to Texas, (2) reducing child support based on Father‘s decreased income, (3) failing to credit Mother for certain expenses in calculating child support, and (4) awarding only partial attorney fees from the first appeal and none for the remand proceedings. Father cross-appeals, asserting that the court erred by (1) granting sole custody to Mother and (2) ordering him to pay $10,000 of her appellate legal fees.
Standard of Review
On appeal, the trial court‘s judgment will be affirmed 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. Jansen v. Westrich, 95 S.W.3d 214, 217-18 (Mo.App.2003), citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Additional principles governing our review are articulated below as relevant to the issues.
Analysis
Relocation
First, Mother challenges the court‘s denial of her motion to relocate. Under
Moreover, the record also supports the trial court‘s finding that relocation is not in the children‘s best interest. The guardian ad litem summarized the inquiry and articulated her recommendation as follows:
I don‘t believe relocation is in the best interest of the girls because both girls are adjusted to their school, they love their school, they have friends, they‘re involved here, not only in school but also at their church, St. John in Weldon Spring, and I think they‘ve just had too many changes and too much trauma over the last six years, going from Francis Howell to the Catholic schools to a brief period of homeschool to Francis Howell and now having to pick up and move to Texas would not be in their best interest. . . . Mr. Aubuchon would be erased completely from the girls’ lives and I don‘t believe that‘s in the best interest.
Despitе Mother‘s attempt to re-litigate the facts, this court does not re-try the issue. Brethorst v. Brethorst, 50 S.W.3d 864, 866 (Mo.App.E.D.2001). Our standard of review requires great deference to the trial court in determining a child‘s best interests. J.T.P. v. P.F., 440 S.W.3d 497, 501 (Mo.App.E.D.2014). Our role is merely to determine whether the record contains sufficient evidence to support the trial court‘s assessment, accepting all evidence and inferences favorable to the judgmеnt. Id. The trial court‘s finding that relocation would not serve the children‘s best interests is supported by substantial evidence and is not against the weight of the evidence. Mother‘s first point is denied.1
In his cross-appeal, Father contends that the trial court erred in granting sole custody to Mother and no visitation to Father because Mother deliberately alienated the children from him and certain facts in the record belie a conclusion that the children don‘t want to see him. Specifically, Father emphasizes that M.A. enjoyed visiting with him over lunch at school one day (evidenced by a video recording) and indicated a desire to see him again, but the girls’ primary counselor was unaware of this when she formed her recommendation against visitation. In short, the reсord contains conflicting evidence as to the children‘s wishes.
While we sympathize with Father‘s plight, his legal argument succumbs to this court‘s standard of review, which requires that we accept the trial court‘s resolution of conflicting evidence and presume that it reviewed all of the evidence and decided the matter in the children‘s best interests. Riley v. Campbell, 89 S.W.3d 551, 552 (Mo.App.W.D.2002). Here, the trial court‘s detailed factual findings and reasoning demonstrate that it did indeed carefully consider the entire record, including the conflicting evidence about M.A.‘s feelings toward Father, but ultimately it concluded that M.A.‘s ambivalence was outweighed by Mother‘s influence.
The children‘s view of Father has declined while the Mother has had sole custody. . . . The children did not express fear of their Father until after Mother lоdged her complaint against Father and began restricting his contact with the children. . . . M.A.‘s school counselor . . . testified that M.A. seemed happy, fine being with her Father, just talking, smiling and laughing. . . . M.A. became visibly upset when reminded about the relationship she had once enjoyed with her Father.
This court having now on two occasions been able to observe the testimony of M.A. and recognizing the significance of the exoneration of Father by every official body which made allegations against him, does not find the allegations made by M.A. to be credible.
While this Court does not find credible the allegations that Father has abused either of his children, it is clear that both children function as if they had been abused. Whether that perception is as a result of being told they were abused by Mother . . . it is clear to this Court that M.A. believes she was abused by her Father. In spite of that belief, it is clear from the lunch video that M.A. is conflicted. . . . The girls are now 14 and are ever more entrenched in their desire to have no contact with their Father. . . . Due to all that has transpired, forcing contact between the children and the Father would do more harm than good.
This assessmеnt finds support in the record through submissions of both the GAL and the children‘s therapeutic supervised visitation (TSV) counselor, who both reached the same conclusion.2
So the Court is now left with the task of choosing to place the children in the sole legal and physical custody of the Father, whom they have virtually not seen for many years and with whom they express no interest in having any contact, or with the Mother, who seems almost prоud of the fact that she refuses to follow the law, the judgment of the court, or any other authority which would involve giving the Husband any part to play in the lives of “their” children.
This case illustrates the gravity of and rationale for this court‘s great deference to the trial court in custody cases, especially in such an irreparable predicament of circumstances. In respеct for our standard of review and in deference to the trial court‘s superior position—after seven years presiding over this family‘s case—to craft a solution in the children‘s best interests, we will not second-guess its discretion or substitute our judgment for its own. While we agree that Mother‘s obstructionism is contemptible, this court‘s inquiry concerns only whether the record contains sufficient evidence to support the trial court‘s determination of the children‘s best interests. This record satisfies that standard. Father‘s first point is denied.
Child Support
Turning to financial matters, Mother contends that the trial court erred by reducing Father‘s child support obligation. Mother insists that the court should have imputed a higher income to Father based on his previous earnings rather than accepting the figure stаted in his financial forms (point II). Mother also faults the trial court for ordering Mother to assume all medical and extra-curricular expenses without a corresponding credit on Form 14 (point III).
With regard to point II, Mother engages in a lengthy and speculative factual portrayal of Father‘s finances, alleging that Father and his employer re-characterized his salary as a loan in order to skew his earnings for purposes of child support. But Mother‘s assertion again ignores this court‘s standard of review. We defer to the trial court on matters of credibility and view the evidence in the light most favorable to its decision. State ex rel. Stirnaman v. Calderon, 67 S.W.3d 637, 639 (Mo.App.W.D.2002). We will not substitute our judgment for that of the trial court absent a manifest abuse of discretion and will not disturb an award of child support unless the еvidence is palpably insufficient to support it. Id. Moreover, the imputation of income is entirely discretionary, and “what constitutes appropriate circumstances to impute income will depend on the facts and must be determined on a case-by-case basis.” Appling v. Appling, 156 S.W.3d 454, 459 (Mo.App.E.D.2005). Here, the trial court found both parties under-employed (and hence could have imputed additional income to Mother) but it accepted Father‘s explanation that his reduction in income was attributable to Mother‘s actions and the ongoing litigation. The trial court was free to believe him.
Similarly on point III, the trial court implicitly rejected Mother‘s financial evidence and instead exercised its discretion to allocate medical and extraordinary expenses in a separate order as it deemed just under the circumstances (noting elsewhere that Mother sought “a custody ar-rangement
Attorney Fees
Finally, both parties challenge the trial court‘s partial allocation of attorney fees. Mother advocates for a larger award in her favor, while Father laments the partial award to his detriment. The trial court has discretion to award attorney fees after considering all relevant factors, including thе financial resources of both parties, the merits of the case, and the conduct of the parties.
The court clearly considered numerous factors, including the parties’ financial means, the merits and complexity of the case, Mother‘s status as the prevailing party on appeal, Mother‘s representation by two attorneys simultaneously at every stage of litigation, and Father‘s good faith in objecting to Mother‘s relocation. Under
Result
The trial court‘s judgment is affirmed in all respects.
Lawrence E. Mooney, P.J., concurs
Glenn A. Norton, J., concurs.