In the Missouri Court of Appeals
Eastern District
DIVISION ONE
GORDON D. AUBUCHON, ) No. ED101126
)
Respondent, )
) Appeal from the Circuit Court
v. ) of St. Charles County
)
KIMBERLEY H. HALE, ) Hon. Richard K. Zerr
)
Appellant. ) FILED: December 2, 2014
OPINION
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 court
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 court
concluded that, after over four years without contact, and given the girls’ disdain for Father due
to Mother’s influence, “there are no current conditions under which the Father can have a
meaningful relationship with his children,” and “forcing contact between the children and the
Father would do more harm than good.” Thus, the Court awarded sole custody to Mother and
no visitation for Father. The parenting plan specifies that Father retains full access to
information regarding the children (e.g., through teachers, doctors, counselors, coaches, etc.)
and may send them limited correspondence, and Mother is prohibited from interfering with his
efforts.
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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 of 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. Father’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
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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 §452.377, a
party seeking to relocate must demonstrate “that the proposed relocation is made in good faith
and is in the best interest of the child.” §452.377.9. “When a court considers whether a parent’s
desire to relocate a child is in good faith, the question is whether the relocating parent’s motive
or purpose for relocating is something other than to disrupt or deprive the non-relocating parent
of contact with the children.” Mantonya v. Mantonya, 311 S.W.3d 392, 399 (Mo. App. W.D.
2010). Here, the trial court found that “Mother has encouraged the estrangement and alienation
of the children from their Father” and that “Mother’s desire to move the children to Texas is, in
great part, motivated by her desire to make it as difficult as possible for Father to have any
contact with the children.” The record supports these findings. Mother herself expressly
confirmed under oath that she sought to eliminate Father completely and was unwilling to allow
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him contact with the children. Simply put, Mother cannot carry her burden of proof of good faith
on this record.
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.
Despite 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 judgment. 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
1
We reject Mother’s contention that this court’s prior mandate precludes this result. In the first appeal,
we deemed dispositive Mother’s points I and II, which challenged the trial court’s order for continued
joint custody due to changed circumstances and for the children’s best interests. We reversed on those
points and remanded for reconsideration as to custody. We did not reach Mother’s other points but noted
that, “because the relocation issue is interrelated, the judgment is also reversed and remanded with regard
to whether relocation would be in the best interests of the children.” Contrary to Mother’s interpretation,
this statement was not intended to decide the point summarily, dispense with the statutory element of
good faith, or tie the trial court’s hands to a particular result. It simply clarified that, on remand, the trial
court should also revisit the question of relocation under §452.377.9, which requires both good faith and
best interests. The trial court has discretion to re-open the record and receive additional evidence on
remand. See Hamer v. Nicholas, 186 S.W.3d 884 (Mo. App. W.D. 2006). Given the time elapsed since its
earlier judgment and the critical importance of determining the facts based on current information,
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Custody
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 record 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 lodged 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.
particularly given the evolution of this case, the trial court properly heard additional evidence as to
whether relocation was sought in good faith and was in the children’s best interests. As stated above, its
updated findings and conclusions are fully supported by the remand record.
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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 assessment 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
Furthermore, the trial court was constrained to resolve the conflict within the bounds of
this court’s first opinion, where we found no factual basis for the continuation of joint custody
given the total breakdown in parental communication and cooperation. The trial court on remand
described its unenviable dilemma as follows.
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 proud 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 respect
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
2
Though reluctant to impose visitation against the children’s emotional well-being, the court attempted to
preserve Father’s parental rights through the parenting plan by allowing him to send correspondence and
access information, hoping “that with the passage of time the children will become open to a renewal of
their relationship with Father.” In essence, the trial court encouraged reconciliation at the election of the
children once independent of Mother’s influence.
7
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 stated 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 evidence 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.
8
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
arrangement tantamount to a termination of [Father’s] parental rights while very much keeping
him obligated financially as a parent”). We find no manifest abuse of discretion in the court’s
allocation of financial responsibilities given the circumstances of this case. Mother’s points II
and III are denied.
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 the financial resources of both parties, the merits of the case, and the conduct of the
parties. §452.355.1. An appellate court will reverse only upon a showing that the trial court
abused its broad discretion. Manning v. Manning, 292 S.W.3d 459, 466 (Mo. App. E.D. 2009).
To demonstrate an abuse of discretion, the complaining party must prove that the award is
clearly against the logic of the circumstances and so arbitrary and unreasonable as to shock one’s
sense of justice. Id. We find no abuse of discretion in the trial court’s award here.
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 §452.377.13, a court shall not order an award of
attorney fees against a party who objects in good faith to the relocation of a child’s principal
residence. The record supports the trial court’s finding that Father’s objection to relocation was
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in good faith, so the trial court’s denial of fees on remand was entirely proper. However, given
Father’s superior financial resources, we cannot say that the trial court’s award of just over one-
fifth of Mother’s fees from the first appeal rises to the level of an abuse of discretion. Both
parties’ points challenging the trial court’s judgment as to attorney fees are denied.
Result
The trial court’s judgment is affirmed in all respects.
__________________________________
CLIFFORD H. AHRENS, Judge
Lawrence E. Mooney, P. J., concurs
Glenn A. Norton, J., concurs.
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