                 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.




                                                 2
                                          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



                                                   4
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



                                                  5
       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.


                                                 6
               [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


                                                   7
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;




                                                 9
       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.)


                                                     11
