Horton v. Horton

LAURA DENVIR STITH, Judge,

dissenting.

I respectfully dissent from the portion of the majority’s opinion which affirms the trial judge’s decision to give primary physical custody of Kelly to Mr. Horton

I agree with the majority’s statements that the trial court enjoys a great deal of discretion in making its determination regarding custody and that we will normally presume that the trial court considered all relevant factors in making its decision. In this ease, however, the record before us affirmatively shows that the trial court abused its discretion by relying on improper factors in awarding primary physical custody of Kelly to Mr. Horton I would therefore remand the case to the trial court for reconsideration of its decision.

As noted by the majority, the trial court specifically found that both parents would be fit and proper custodians of Kelly, and the record fully supports that conclusion. It was for this very reason that the trial court had great difficulty in making a custody determination, for the judge clearly did not wish to deprive either parent of custody of their daughter. Ultimately, however, the judge had to make a custody determination, and awarded primary physical custody to Mr. Horton The judge gave three reasons for his decision: (1) that Mrs. Horton had moved out of the family home without explanation during the separation; (2) that both parents agreed that Mr. Horton would keep the family home; and (3) that Mrs. Horton was contemplating the possibility of moving from the community.

As the majority has noted, reasons (1) and (3) are simply not supported by the record. It shows that neither parent cared strongly who would live in the family home, and that they together agreed that Mrs. Horton would move out of the home with Kelly during the pendency of the proceeding. No negative inference can be drawn from these facts.

Similarly, the record shows absolutely no intent to move out of the community on the part of Mrs. Horton To the contrary, her attorney was simply very thorough in his preparation of the separation agreement and, so, included a provision which would govern should a party ever decide to move out of the area. The fact that the attorney showed such foresight should certainly not be held against his client in the ultimate custody decision.

The point of my disagreement with the majority is its analysis of the final factor relied on by the trial court, e.g., the fact that the father was awarded the residence when the marital property was divided. In listing this factor, the trial court basically held that the award of child custody should follow the award of the family home. Nothing in our laws or the principles governing child custody supports this result. To the contrary, and as the majority concedes, Section 452.330(1) states that the court shall consider “the desirability of awarding the family home ... to the spouse having custody of any children.” § 452.330(1) (emphasis added). It turns this principle on its head to rule that the court should instead award custody to the spouse who received the family home. To do so puts the proverbial cart before the horse.

*74To allow custody to follow the award of the house, rather than vice versa, is particularly unfair on the facts of this case, for it is undisputed that the family had lived in the house for only three years, and both parents indicated that they did not care who got the house. The property had to be divided up somehow, however, and the parties ultimately agreed that the father, who was already living in the house, would retain it and the mother -would get other property instead.

At the time they divided up the marital property, however, the court had not made a ruling on child custody, nor had it indicated that it would consider who had been awarded the house in deciding custody. Thus, there was no notice to either party that the choice of who would be awarded the house would have any significance in regard to custody. Certainly no prior case had held that the award of child custody would be governed by the property division, rather than the other way around.

Indeed, at the time of the division of property the parties’ daughter was living with her mother in an apartment. She had, thus, already moved out of the house. It, therefore, was more disruptive of her living situation to order that she move back into the house with her father than it would have been to order her to remain in the custody of her mother in the apartment. This is particularly relevant in light of the principle, acknowledged by the majority, that evidence that the custodian during separation has been entirely satisfactory is a relevant, although not in itself dispositive, factor in favor of awarding that parent permanent custody.

I do not intend to suggest by this discussion that the trial court was required to award primary physical custody to the mother. I fully agree that both parents would be excellent custodians of their daughter. I do believe, however, that such an important issue should not be decided based on factors which are not supported by the record, or which are based on a misapplication of established principles. That is what I believe occurred here.

For these reasons, I would remand this' case to the trial court so that it can reconsider its decision in light of the above discussion. In consideration of the time that has passed since its original decision, the court can, and should, hold an additional hearing at which it can take any relevant additional evidence affecting custody.

The court and the parties should also consider whether joint physical custody would be the proper option to follow where, as here, both parents get along and both would be excellent custodians of the child. While it appears that neither party suggested joint custody, the court is obligated to award custody in the best interests of the child. § 452.375(2)(5). Further, Section 452.375(5) specifically states that:

Prior to awarding the appropriate custody arrangement in the best interests of the child, the court shall consider each of the following as follows:
(1) Joint custody to both parents, which shall not be denied solely for the reason that one parent opposes a joint custody award;
(2) Sole custody to either parent; or
(3) Third party custody or visitation.

§ 452.375(5).

While it has been held that this section does not create a presumption in favor of joint custody, it does require consideration of this option. Chapman v. Chapman, 871 S.W.2d 123 (Mo.App.1994). Moreover, for the reasons thoroughly discussed by Judge Shangler in Margolin v. Margolin, 796 S.W.2d 38, 48-50 (Mo.App.1990), we have recognized that this statute creates a preference for joint legal custody in favor of parents such as Mr. and Mrs. Horton, who have shown an ability to share the rights and responsibilities of child-rearing. Other cases have applied this rationale to joint physical custody decisions. See, e.g., Burkhart v. Burkhart, 876 S.W.2d 675, 679-80 (Mo.App.1994); In re Marriage of Barnes, 855 S.W.2d 451, 453-55 (Mo.App.1993). This option should have been, but was not, considered here.

For these reasons, I would remand with directions to the trial court to revisit the custody issue in light of relevant factors supported by the evidence, and in so doing to consider whether joint custody would be in *75Kelly’s best interests in this ease. I therefore respectfully dissent from the majority’s decision to affirm the judgment of the trial court.