Jeramie Reno v. Robin R. Gonzales

IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
JERAMIE RENO, et al., )
Respondent, )
)
v. ) WD78439
)
ROBIN R. GONZALES, ) FILED: May 10, 2016
Appellant. )
Appeal from the Circuit Court of Clay County
The Honorable David P. Chamberlain, Judge
Before Division Four: Alok Ahuja, C.J., Thomas H. Newton, J.
and Chares H. McKenzie, Sp. J.
Appellant Robin Gonzales appeals from a judgment of the Circuit Court of Clay County.
The judgment addressed Respondent Jeramie Reno’s petition to determine father-child
relationship, custody, and child support and visitation, as well as Gonzales’ counter-petition.
The judgment awarded Gonzales and Reno joint legal custody over their child, and awarded
Gonzales sole physical custody, with Reno receiving substantial unsupervised visitation. On
appeal Gonzales argues that the trial court erred by ordering joint legal custody, and awarding
Reno unsupervised visitation. We reverse, and remand to the circuit court for further
proceedings.
Factual Background
On December 22, 2006, Robin Gonzales gave birth to the parties’ son in Buchanan
County. Although Gonzales and Reno were not married, Reno held the child out as his
biological son from birth and was listed as the father on the child’s birth certificate. Reno and
Gonzales resided together and raised the child as mother and father until the child was seven
years old.
Eventually, the relationship between Reno and Gonzales soured, and the parties
separated. On March 14, 2014, Reno filed a Petition for Determination of Father-Child
Relationship, Order of Custody, Order of Child Support and Visitation in Clay County Circuit
Court. Gonzales filed a counter-petition.
On April 2, 2014, the circuit court entered an Interlocutory Judgment and Order of
Paternity declaring Reno to be the child’s natural father. On the same date, the court also entered
an Order of Temporary Custody granting Reno sole legal custody and joint physical custody to
both Reno and Gonzales, with the child principally residing with Reno.
On September 24, 2014, the circuit court modified the Temporary Order to grant
Gonzales sole legal and physical custody of the child. The court ruled that Reno’s weekly visits
with the child should be supervised by Transitions Family Visitation Center until further order of
the court, based on the court’s finding that “at present, unsupervised visitation would endanger
the minor child’s physical health or impair his emotional development, pursuant to § 452.400.1
RSMo.”
Following a bench trial, the court entered its final judgment on February 5, 2015. The
court awarded Gonzales and Reno joint legal custody. The court awarded Gonzales sole
physical custody, but ordered that Reno have unsupervised visitation with the child every
alternating weekend and on Wednesday evenings, as well as on certain holidays. Gonzales
appeals, challenging both the award of joint legal custody, as well as the provisions of the
judgment giving Reno substantial unsupervised visitation.
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Standard of Review
“This Court will affirm the circuit court's judgment 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.” Pasternak v. Pasternak, 467 S.W.3d 264, 268 (Mo. banc 2015) (citing Murphy v. Carron,
536 S.W.2d 30, 32 (Mo. banc 1976)).1
Analysis
I.
Gonzales’ first Point challenges the circuit court’s award of joint legal custody.
Joint legal custody is defined by statute as an arrangement where “parents share the
decision-making rights, responsibilities, and authority relating to the health, education and
welfare of the child, and, unless allocated, apportioned, or decreed, the parents shall confer with
one another in the exercise of decision-making rights, responsibilities, and authority[.]”
§ 452.375(2), RSMo.2
Section 452.375.4 contains the following legislative declaration of policy with respect to
joint legal custody:
1
In numerous decisions this Court and the Missouri Supreme Court have stated that the
court “gives even more deference to the trial court's judgment in a custody matter than in other matters.”
Hightower v. Myers, 304 S.W.3d 727, 732 (Mo. banc 2010). The Missouri Supreme Court recently held,
however, that the same standard of review applies in all court-tried civil cases:
Prior statements from this and other Courts to the effect that greater deference is
paid to the trial court in certain types of cases (e.g., family law) than in others are
incorrect and misleading. Those prior statements should not be read to mean anything
more than that such cases often require the trial court to weigh a great deal of conflicting
evidence before finding the highly subjective facts required by the applicable statutory
factors.
Ivie v. Smith, 439 S.W.3d 189, 199 n.9 (Mo. banc 2014).
2
“While this appeal stemmed from a paternity action, we note that ‘Section 452.375
governs the initial award of custody in paternity cases, as well as dissolution cases.’” M.P.P. v. R.R.E.,
456 S.W.3d 69, 70 n.1 (Mo. App. E.D. 2015) (quoting Day ex rel. Finnern v. Day, 256 S.W.3d 600, 602
(Mo. App. E.D. 2008)); see also Lampe v. Rust, 190 S.W.3d 631, 632 (Mo. App. W.D. 2006).
3
The general assembly finds and declares . . . that it is the public policy of
this state to encourage parents to participate in decisions affecting the health,
education and welfare of their children, and to resolve disputes involving their
children amicably through alternative dispute resolution. In order to effectuate
th[is] polic[y], the court shall determine the custody arrangement which will best
assure both parents participate in such decisions . . . so long as it is in the best
interests of the child.
Section 452.375.5 then requires that, “[p]rior to awarding the appropriate custody arrangement in
the best interest of the child,” the court “shall consider” awarding joint legal and physical
custody, before entering a judgment awarding sole legal or physical custody to one parent.
The statutory preference for joint legal custody does not displace the paramount
consideration in making child custody determinations: the best interests of the child.
The declaration of public policy subsection [4] delivers, that the custody
arrangement best assure a shared decision-making responsibility by the parents
and significant contact between the child and each parent – abetted by the
direction of subsection [5] that the court shall consider each option of custody as
listed – announces not only a prior option, but a preference for joint custody if
indicated [by] the best interests of the child under all relevant circumstances. . . .
The preference the [statute] enacts, however, is not that of a forced joint
custody in order to induce the parents to find a common ground. It is a
preference, rather, in favor of parents who show the willingness and ability to
share the rights and responsibilities of child-rearing even after they have dissolved
the marriage. That is to say the preference for joint custody is one grounded in
and validated by the more abiding public policy that in the given circumstances
only that custody arrangement is appropriate that best serves the interests of the
child. The adjudication of custody under the [statute], as before, begins and ends
with that dominant consideration. It is the scheme of the amendment that the
court determine first whether under all the relevant circumstances joint custody is
in the best interests of the child. If so, the inquiry ends. If not, the court
continues to the next option in the order enumerated in subsection [5] until the
adjudication of custody is done.
Margolin v. Margolin, 796 S.W.2d 38, 49-50 (Mo. App. W.D. 1990) (citations and internal
quotation marks omitted); see also In re Marriage of Sutton, 233 S.W.3d 786, 791 (Mo. App.
E.D. 2007); McCauley v. Schenkel, 977 S.W.2d 45, 51 (Mo. App. E.D. 1998) (“There is no
preference for joint [legal] custody unless, in the given circumstances, it is in the best interests of
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the child.”). Section 452.375.4 “does not create a presumption in favor of joint custody.”
Kroeger-Eberhart v. Eberhart, 254 S.W.3d 38, 47 (Mo. App. E.D. 2007) (citation omitted).
“The parents’ ability to communicate and cooperate is crucial in considering whether
joint legal custody is proper.” Pasternak, 467 S.W.3d at 273 (quoting Mehler v. Martin, 440
S.W.3d 529, 536 (Mo. App. S.D. 2014)). “[J]oint legal custody is not always or necessarily
inappropriate merely because there is some level of personal tension and hostility between the
former spouses.” McCauley, 977 S.W.2d at 50-51. However, such custody is appropriate only if
“there is substantial evidence that despite this acrimony the parties nonetheless have the ability
and willingness to fundamentally cooperate in making decisions concerning their child's
upbringing.” Id. at 51 (citation omitted).
“‘If the parents are unable to make shared decisions concerning the welfare of the
children, joint custody is not in the best interests of the children.’” Pasternak, 467 S.W.3d at 274
(quoting Mehler, 440 S.W.3d at 536). Accordingly, “[i]f there is no substantial evidence in the
record that the parties have a commonality of beliefs concerning parental decisions and the
willingness and ability to function as a unit in making those decisions, a trial court's award of
joint legal custody must be reversed.” Sutton, 233 S.W.3d at 790.
The circuit court’s own factual findings demonstrate that joint legal custody was
unwarranted in this case. The judgment expressly finds that the parties had been unable to co-
parent:
In its Order of Temporary Custody entered April 2, 2014, this Court found
that the parties had shown no commonality of beliefs concerning parental
decisions and had demonstrated neither willingness nor ability to function as a
unit in making these decisions. Indeed, [Reno] has demonstrated an
unwillingness to communicate with [Gonzales] about issues concerning the minor
child. Although the April 2, 2014 Order required [Reno] to promptly inform
[Gonzales] of any serious medical condition of the child, [Reno] failed to notify
[Gonzales] when he took the child to urgent care for treatment of infected bug
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bites and when the child was prescribed asthma medication. [Reno] also failed to
notify [Gonzales] of injuries the minor child suffered when [Reno] crashed the
motorcycle he and the child were riding. [Gonzales] presented text messages in
which [Reno] called her derogatory names, and [Gonzales] testified that [Reno]
has used such language towards her in the minor child’s presence.
The judgment also finds that, when the child was residing primarily with Reno, he denied
Gonzales one of her court-ordered visits, “and habitually denied her telephone contact with the
child.” The judgment’s findings concerning a pattern of domestic violence, Reno’s
endangerment of the child’s welfare, and his untreated substance abuse problems, which are
described in § II, below, provide additional indications that joint legal custody was unjustified.
Given the trial court’s factual findings, the award of joint legal custody must be reversed.
Halford v. Halford, 292 S.W.3d 536, 545 (Mo. App. S.D. 2009) (reversing award of joint legal
custody where judgment contained similar factual findings).
Reno did not file a brief in this appeal. From our own review of the record, the only
testimony we have discovered which might tend to demonstrate the parties’ ability to
communicate and cooperate is the following exchange regarding a visit to Children’s Mercy
Hospital for allergy testing for their son.
[Reno]: . . . How would you say that our communication with each other
was that day?
[Gonzales]: I think it was the typical. The first time you put [the child]
down about having his purple socks. You put him down about his hair not being
cut, put him down about having purple hair for Halloween. It was the typical
put-[the child]-down situation.
[Reno]: I was actually referring to the conversations that me and you had
about some of [the child’s] medical history. We actually had to have quite a bit of
talking with each other that day.
....
The Court: . . . The question he’s asking is how did you all get along.
[Gonzales]: Yeah, we did good that day. We did do good that day.
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[Reno]: And I’d have to agree.
The trial court’s judgment does not refer to this single episode during which the parties
were apparently able to function as a unit. Indeed, given the trial court’s express finding that
Reno and Gonzales “had shown no commonality of beliefs concerning parental decisions and
had demonstrated neither willingness nor ability to function as a unit in making these decisions,”
it appears that the court found this single incident to be insignificant in determining the parties’
ability to co-parent. This isolated passage from the trial transcript is insufficient to sustain the
award of joint legal custody. See In re Marriage of M.A., 149 S.W.3d 562, 569-70 (Mo. App.
E.D. 2004) (reversing award of joint legal custody despite father’s testimony “that he thought he
and mother could ‘jointly make decisions regarding the kids’ best welfare and interest,’” where
“[t]here was no evidence that father and mother have a commonality of beliefs concerning
parental decisions, and a willingness, as well as an ability, to function as a unit in making those
decisions”); McCauley, 977 S.W.2d at 51 (evidence that parents more recently “had gotten along
somewhat better” was insufficient to support circuit court’s award of joint legal custody, in light
of “evidence of constant, ongoing, severe tension and bickering between the parties”).
We recognize that, in its comments from the bench at the conclusion of the trial, the
circuit court indicated that it desired to give Reno a final opportunity to give up alcohol and
drugs, and to participate responsibly in raising his child. While this may be a laudable
motivation, it cannot support an award of joint legal custody where there was no evidence that
the parties had, in fact, been able to co-parent previously. “The preference for joint custody
stated in section 452.375 does not mandate a joint custody award designed to induce parents to
find common ground; rather it expresses a preference in favor of parents who show the
willingness and ability to share child-rearing rights and responsibilities.” Kroeger-Eberhart, 254
S.W.3d at 48; see also Sutton, 233 S.W.3d at 792 (“The trial court’s orders were designed to
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force the parties to cooperate in order to maintain joint legal custody, a result that . . . is not
contemplated by section 452.375.4.”). Even if the parties had expressed aspirations to work
together in the future despite their past problems (which they had not), “[t]he parties’ assertions
that they think they can talk, or that they hope to work together once they have a court order to
do so, does not overcome the evidence of their prolonged, demonstrated inability to the
contrary.” Kroeger-Eberhart, 254 S.W.3d at 49. Without evidence of the parties’ present ability
to make joint decisions in the child’s best interests, the hope that they might do so in the future
was an insufficient basis to support the award of joint legal custody.
“An order granting joint legal custody must be based on substantial evidence that fairly
supports the conclusion that the parties have a commonality of beliefs concerning parental
decisions, as well as the willingness and ability to function as a unit in making those decisions.”
Sutton, 233 S.W.3d at 790 (citation and internal quotation marks omitted). Here, the judgment
demonstrates that there was not substantial evidence to support an award of joint legal custody.
We reverse the provisions of the judgment awarding the parties joint legal custody, and remand
to the trial court for further proceedings with respect to the legal custody issue. On remand, “[i]t
is within the trial court’s discretion to reopen the record and receive additional evidence
concerning legal custody, given the passage of time since trial and judgment.” Kroeger-
Eberhart, 254 S.W.3d at 49. We emphasize that the existing record does not support an award of
joint legal custody; therefore, if the trial court chooses not to receive additional evidence
concerning legal custody on remand, its authority will be limited to determining which party
should be awarded sole legal custody.
II.
In its judgment, the trial court awarded Gonzales sole physical custody, but awarded
Reno visitation with the child on alternating weekends and every Wednesday evening, as well as
8
longer periods in summer and on holidays. The judgment provided for exchange of the child at
the parties’ residences. The judgment also provided that Gonzales was entitled to demand that
Reno submit to a portable alcohol test before leaving with the child; if the test showed the
presence of alcohol, Reno would not be entitled to conduct visitation, and would be responsible
for the cost of the testing.
Gonzales’ second Point contends that the circuit court’s award of substantial,
unsupervised visitation to Reno, and its specification of the manner in which that visitation was
to be exercised, was against the weight of the evidence.
The circuit court’s judgment contains numerous, specific factual findings concerning
Reno’s behavior which call into question the parenting plan the court adopted. In addition to the
findings discussed in § I, above, the judgment also found
o that Reno has a substance abuse problem, has used methamphetamine and marijuana
on a regular basis, has been convicted of possession of methamphetamine, and tested
positive for the presence of marijuana during the pendency of the case;
o that Reno “admitted that he has an alcohol dependency problem but has not sought
any treatment,” and has made numerous Facebook posts about getting drunk, drinking
after putting the child to bed, and operating a motorcycle or bicycle after having
multiple drinks;
o that Reno was convicted of driving while intoxicated during the pendency of the case,
and had his driver’s license suspended for refusing to submit to a breathalyzer test,
but continued to drive with the child in his vehicle despite his license suspension;
o that Reno lied to the guardian ad litem concerning his current use of drugs and
alcohol;
o that Reno’s sixteen-year-old daughter was removed from his custody by Kansas
authorities during the pendency of this case, based on reports of drugs and drug
paraphernalia in Reno’s home;
o that Reno “subjected [Gonzales] to a pattern of domestic violence,” including
slapping her on the leg, punching her in the face, throwing her into the trunk of a car,
and breaking into her home and stealing her car and money;
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o that Reno has “‘backhanded’ the minor child once, knocking him out of his chair at
the dinner table”;
o that Reno “had endangered the minor child’s physical health by, inter alia, allowing
the child to ride motorcycles and dirt bikes without a helmet; allowing him to ride in
the front seat of [Reno’s] truck without a booster seat or safety belt; ripping the sink
out of the family’s kitchen while high, so that the family had to wash their dishes in
the bathtub for several months; and failing to bathe the child for four days straight”;
o that Reno “has bullied the minor child by, for example, yelling at him, calling him
‘stupid,’ and forcing him to ride amusement park rides that clearly terrified him”;
o that Reno burned wood for heat in his home, which exacerbated the child’s asthma;
o that Reno “physically abused [Gonzales’] oldest child,” by engaging in a fist fight
with him when he was thirteen, and spanking him with a belt;
o that Reno has threatened to kill himself; and
o that although Reno was granted supervised visitation with the child in an order
entered on September 24, 2014, he had not contacted the visitation center to arrange a
visit until January 2015, and spoke to the child by telephone only three times during
that period.
In addition to the factual findings contained in the judgment, we also note that, in its September
2014 order concerning temporary custody, the circuit court had found that Reno was entitled to
only supervised visitation, based on its finding that “at present, unsupervised visitation would
endanger the minor child’s physical health or impair his emotional development, pursuant to
§ 452.400.1 RSMo.”
As discussed in § I above, we are reversing the judgment, and remanding the case to the
circuit court for further proceedings, because the factual findings in the judgment, and the
evidence adduced at trial, do not justify an award of joint legal custody to the parties. “In view
of our holding that the evidence in the record does not support an award of joint legal custody,
we conclude that the trial court should have the opportunity upon remand to reconsider the issue
of physical custody as well, after a hearing at which both parties will be given the opportunity to
10
present evidence concerning the most appropriate physical custody plan for [their child].”
McCauley v. Schenkel, 977 S.W.2d 45, 52 (Mo. App. E.D. 1998).3
Conclusion
We reverse the circuit court’s judgment, and remand the case to the circuit court for
further proceedings consistent with this opinion.
__________________________________
Alok Ahuja, Chief Judge
All concur.
3
Because the trial court found that Reno had “subjected [Gonzales] to a pattern of
domestic violence,” in its judgment on remand the trial court is required by § 452.375.13 to “make
specific findings of fact to show that the custody or visitation arrangement ordered by the court best
protects the . . . household member who is the victim of domestic violence[.]” (Emphasis added.)
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