Opinion
No. ED 101126
2015-01-27
Gordon D. Aubuchon, Respondent, v. Kimberley H. Hale, Appellant.
Appeal from the Circuit Court of St. Charles County, Hon. Richard K. Zerr, JudgeFrancis E. Pennington, 106 W. Madison Ave., Suite 200, St. Louis, MO 63122, for appellant.Erin R. Griebel, Gabriel Harris, 135 S. LaSalle St., Suite 2300, Chicago, IL 60603, for respondent.
Affirmed.
Appeal from the Circuit Court of St. Charles County, Hon. Richard K. Zerr, Judge
Francis E. Pennington, 106 W. Madison Ave., Suite 200, St. Louis, MO 63122, for appellant. Erin R. Griebel, 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.
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.
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.
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.
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 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.
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 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. Lawrence E. Mooney, P.J., concurs Glenn A. Norton, J., concurs.