                                        In the
                        Missouri Court of Appeals
                                 Western District
GREGORY J. HALL,                             )
INDIVIDUALLY AND AS NEXT                     )
FRIEND FOR STACIA UTLEY,                     )   WD76417
                                             )
               Appellant,                    )   OPINION FILED: August 26, 2014
                                             )
v.                                           )
                                             )
AMBER FRALA UTLEY,                           )
                                             )
              Respondent.                    )

             Appeal from the Circuit Court of Jackson County, Missouri
                    The Honorable Christine T. Sill-Rogers, Judge

Before Division Four: Alok Ahuja, Chief Judge, Presiding, Cynthia L. Martin, Judge and
                          Randall R. Jackson, Special Judge


      Gregory Hall ("Father") appeals from the trial court's judgment of paternity that

ordered the minor child to be placed in the sole legal custody of Amber Frala Utley

("Mother"), ordered the minor child to be placed in the joint physical custody of Father

and Mother, and ordered Father to pay child support. Father asserts that the trial court

erred: (1) in failing to grant a new trial or amend the judgment regarding the calculation

of child support based on newly discovered evidence; (2) in granting Mother sole legal

custody; (3) in failing to make specific findings in its judgment requested by Father; (4)
in designating Mother's address as child's principal address; (5) in issuing a protective

order regarding Mother's medical condition; and (6) in admitting hearsay evidence.

Finding no error, we affirm and remand to the trial court for consideration of Mother's

request for attorney's fees.

                                Factual and Procedural Background1

        Mother gave birth to Stacia Utley ("the child") in February 2000. During the first

year of the child's life, an administrative action determined Father to be the child's

biological father and ordered Father to pay child support of $319 per month and to

provide health insurance for the child.

        The child has resided with Mother throughout the child's entire life. Although

invited to the hospital for the child's birth, Father did not attend or visit the child in the

hospital. Father's first contact with the child was when she was five weeks old. When

the child was four months old, Father began visiting the child at Mother's home every

Sunday for approximately an hour. When the child was one year old, Mother and Father

informally agreed that Father would have visitation every other weekend, and that the

child could accompany him on family vacations.

        This informal visitation agreement continued until March 2006 when, according to

both Father and Mother, a dispute arose about the techniques Father's wife was using to

discipline the child. From March 2006 to May 2007, Father did not visit the child, did

not call Mother to ask how the child was, did not acknowledge the child's birthday or


        1
          We view the facts in the light most favorable to the trial court's judgment. Courtney v. Roggy, 302 S.W.3d
141, 144 (Mo. App. W.D. 2009).

                                                         2
Christmas, and had no other contact with the child. In May 2007, Mother telephoned

Father and told him that the child missed him. Father spent the following weekend with

the child and thereafter resumed the informal every-other-weekend visitation

arrangement.

       On November 14, 2011, Father filed a petition to adjudicate paternity, custody,

parenting terms, and support with respect to the child. In addition to requesting a judicial

determination of paternity,2 Father's petition asked the trial court to award Father sole

legal and sole physical custody of the child and to grant Mother supervised visitation.

Father's petition alleged that Mother "has a history of drug abuse and is likely to be

currently actively using unlawful drugs" and that Mother "has medical issues and

economic stability issues which make it difficult or impossible for her to provide a stable

home" for the child. Father's petition also requested that the trial court order Mother to

pay child support.

       Mother filed an answer and counter-petition. Mother's answer denied Father's

allegations of drug abuse, medical issues, and economic instability. Mother's counter-

petition asked the trial court to award joint legal and joint physical custody over the child,

with equal parenting time. Mother's counter-petition also requested that the trial court

order Father to pay child support and to pay Mother's attorney's fees and costs.

       A trial was held over two days in August 2012 and in November 2012. Father,

Father's wife, Father's mother, a private investigator hired by Father, and Mother testified

during the trial.          Father also entered Mother's deposition testimony into evidence.

       2
           Father did not contest paternity. His petition alleged that he was the father of the child.

                                                            3
Following its consideration of the evidence, the trial court entered a judgment of paternity

("Judgment").

       The Judgment declared Father to be the biological father of the child.           The

Judgment awarded sole legal custody of the child to Mother and joint physical custody of

the child to Mother and Father. The Judgment directed the child to reside with Mother

except on alternating weekends when the child would reside with Father, subject to a

holiday and vacation schedule.        The Judgment provided that Father would forfeit

parenting time if he was working out of town. Mother's home was designated as the

child's address for mailing and educational purposes. Father was ordered to pay Mother

$1,371 per month in child support and to provide health, dental, and vision insurance for

the child.

       Father filed a motion for new trial or, in the alternative, for relief from judgment

and suggestions/affidavits/exhibits in support thereof ("Motion"). The Motion set forth

several bases for relief, most of which are raised on appeal. The trial court overruled the

Motion.

       Father appeals, setting forth six points of error.

 Point One: Whether Newly Discovered Evidence Necessitated a New Trial for the
                         Child Support Calculation

       Father's first point on appeal asserts that the trial court erred in denying the

Motion. Father asserts that he was entitled to either a new trial or an altered or amended

judgment because newly discovered evidence required a decrease in the presumed

amount of child support. Specifically, Father claims that after the case was tried, but


                                              4
before the Judgment was entered, he learned he would not receive a substantial payment

owed him on a subcontract, resulting in a substantial decline in his income. Father also

claims that after the Judgment was entered, he determined that the cost of health

insurance would be significantly higher than what the trial court and the parties had

estimated.

       We review the trial court's denial of a motion for new trial for abuse of discretion.

Cent. Trust & Inv. Co. v. Signalpoint Asset Mgmt., LLC, 422 S.W.3d 312, 325 (Mo. banc

2014). The trial court abuses its discretion when its ruling is clearly against the logic of

the circumstances then before the court and is so unreasonable and arbitrary that it shocks

one's sense of justice and indicates a lack of careful consideration. Id. "Motions for new

trial based on newly discovered evidence 'are looked upon with disfavor, and the party

urging such an error on appeal must carry a heavy burden.'" Id. (quoting Soehlke v.

Soehlke, 398 S.W.3d 10, 21 n.6 (Mo. banc 2013)).

       Rule 78.01 provides:

       The court may grant a new trial of any issue upon good cause shown. A
       new trial may be granted to all or any of the parties and on all or part of the
       issues after trial by jury, court or master. On a motion for a new trial in an
       action tried without a jury, the court may open the judgment if one has been
       entered, take additional testimony, amend findings of fact or make new
       findings, and direct the entry of a new judgment.

(Emphasis added.) To prevail on a motion for new trial based on newly discovered

evidence, the party must demonstrate:

       (1) that the evidence has come to [his] knowledge since the trial; (2) that
       the failure of the evidence to come to [his] knowledge sooner was not the
       result of a lack of due diligence; (3) that the evidence is so material that it
       would probably produce a different result if a new trial were granted; (4)

                                             5
      that the evidence is not cumulative only; (5) that the parties' affidavit
      should be produced, or its absence be accounted for; and (6) that the object
      of the evidence is not merely to impeach the character or credibility of a
      witness.

Pijanowski v. Pijanowski, 272 S.W.3d 321, 324 (Mo. App. W.D. 2008). Father's "newly

discovered evidence" fails to meet these requirements.

      Father's Motion "request[ed] recalculation of child support to take into

consideration newly discovered evidence that [Father's] 2012 income will be more than

$32,000.00 less than his 2011 income which was used to calculate child support." To

support this contention, Father attached two documents to the Motion: (1) Father's

affidavit in which he stated that he learned after trial that a $32,000 subcontract payment

owed to him would not be paid in 2012; and (2) a letter dated nearly a month after the

entry of Judgment from a contractor confirming that approximately $32,000 owed to

Father, a subcontractor, was not paid in 2012 because the contractor had yet to be paid by

the customer. While these documents, if accepted as true, establish that Father was not

paid $32,000 he was owed in 2012, they do not establish that Father was entitled to a new

trial based on newly discovered evidence.

      First, the "newly discovered evidence" is cumulative of Father's trial testimony.

Father generally testified that his income fluctuated from year to year and that he

anticipated lower income in 2012 than that earned in 2011.3 Father did not testify that he

wouldn't receive the $32,000 payment at all, but only that it would not be paid as he had

hoped in 2012. Father's "new evidence" was merely cumulative of his trial testimony.


      3
          Father earned $232,000 in 2011.

                                            6
Second, if the trial court calculated child support based on Father's 2011 income, as

Father contends on appeal, then the trial court either disregarded Father's trial testimony

about an anticipated reduction in income in 2012, or the trial court accepted Father's trial

testimony that fluctuations in his income from year to year were not unexpected. Father

has not established, therefore, that the "newly discovered evidence" of an unpaid

subcontract payment was so material that its consideration would probably produce a

different result.

         The Motion also requested a new trial due to "the newly discovered evidence that

the cost of health and dental insurance for the minor child will be more than three times

the sum estimated at trial." Father attached copies of documents he received from his

health insurance company following the entry of Judgment. Those documents indicate

that because of the child's health history, the child could not be added to Father's health

and dental insurance policy and would require a separate policy at a cost of $263.80 per

month.

         In calculating child support, the trial court had assumed the cost for health and

dental insurance for the child would be $105 per month based on input from Father.

Father's Brief explains that at trial, he divided his family's current insurance premium

(which included insurance for other children Father had with his wife) to estimate the pro

rata cost to add the child to his insurance.4 After the entry of Judgment, Father called his

insurer and learned that the child could not be added to his policy and would require a


         4
          The administrative order entered within the first year of the child's life had directed Father to provide
health insurance. Father never did so and claimed at trial that he was not aware of the obligation to do so.

                                                           7
separate policy.   Father has not explained why this evidence could not have been

discovered through due diligence prior to trial. "'Due diligence is defined as that degree

of assiduity, industry or careful attention called for under the circumstances of the case

. . . .'" Pijanowski, 272 S.W.3d at 325 (quoting Higgins v. Star Elec., Inc., 908 S.W.2d

897, 903-04 (Mo. App. W.D. 1995)).

       The trial court did not abuse its discretion in denying Father's Motion based on a

claim of newly discovered evidence.

       Father's first point on appeal is denied.

     Point Two: Whether Awarding Sole Legal Custody to Mother Was Proper

       In his second point on appeal, Father asserts that the trial court erred in awarding

sole legal custody to Mother. Father claims that this award is against the weight of the

evidence, fails to serve the public policy of the state, and does not serve the best interests

of the child.

       As with other court-tried cases, our review of the Judgment is governed by

Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). We will affirm the trial court's

judgment unless it is not supported by substantial evidence, is against the weight of the

evidence, or it erroneously declares or applies the law. Querry v. Querry, 382 S.W.3d

922, 925-26 (Mo. App. W.D. 2012). In reviewing the trial court's judgment, we view the

evidence and all reasonable inferences drawn therefrom in the light most favorable to the

trial court's judgment and disregard all contrary evidence and inferences. Durbin v.

Durbin, 226 S.W.3d 876, 878 (Mo. App. W.D. 2007). In other words, we will not

reweigh evidence even if it could have supported another conclusion. Id. at 879.

                                              8
       In child custody cases, "'[w]e presume that the court awarded custody in

accordance with the children's best interests after reviewing all of the evidence and we

will reverse its decision only if we are firmly convinced that the welfare and best interests

of the children require otherwise.'" Id. (quoting Dunkle v. Dunkle, 158 S.W.3d 823, 833

(Mo. App. E.D. 2005)).

       Legal custody concerns "the decision-making rights, responsibilities, and authority

relating to the health, education and welfare of the child." Section 452.375.1. Legal

custody may be awarded jointly to both parents or solely to one parent. Id. Joint legal

custody is preferred on public policy grounds, but the preference is not absolute. Meyer

v. Block, 123 S.W.3d 316, 324 (Mo. App. W.D. 2003) (citing section 452.375.4).

Instead, when determining whether to award joint or sole legal custody, the trial court

must consider the best interests of the child.                        Section 452.375.2.   "'In determining

whether joint legal custody is in the child's best interests, we consider the parties'

commonality of beliefs concerning parental decisions, the parties' abilities to function as

a parental unit in making those decisions, and the parties' demonstrated willingness and

ability to share the rights and responsibilities of raising their [child].'" In re Marriage of

Brown, 310 S.W.3d 754, 758 (Mo. App. E.D. 2010) (quoting In re Marriage of Sutton,

233 S.W.3d 786, 790 (Mo. App. E.D. 2007)).

       Here, the trial court acknowledged but rejected both Mother and Father's proposed

parenting plans recommending joint legal custody.5 The trial court instead awarded sole

legal custody to Mother.                In explaining its decision, the trial court found that: (1)

       5
           Father's petition had originally sought sole legal custody of the child.

                                                            9
throughout the child's life, Father had expressed no concern regarding the child's health

and had not participated in medical visits for the child though invited to do so. Yet

Father criticizes the child's allergy and asthma diagnoses; (2) Father never participated in

the child's education or school activities and never visited the child's school or contacted

her teachers until trial when he scheduled a conference with the school without notifying

Mother; (3) Father has a past history of abandoning the child; (4) Father fails to

adequately communicate with Mother. Father's job requires him to work out of town

frequently, yet he never notifies Mother, and he fails to advise Mother of the child's

whereabouts when he is out of town on business. Father has confiscated the child's cell

phone, denying her access to Mother and to her online school assignments; (5) Mother

credibly testified that her communication with Father had deteriorated since he filed the

instant action. Despite Mother's "[expression of hope] that they could co-parent," the

trial court concluded that would not be possible based on Father's "disdain for Mother;"

(6) Father's and his wife's testimony was critical of Mother, and Father "could not make a

positive statement about Mother;" and (7) Father has attempted to engage the child in

discussions about the litigation and has warned her not to discuss what occurs at his

house. Father has also told the child "it is her responsibility to keep the peace between

the two households."

       The trial court's factual findings relating to its legal custody determination were

supported by the weight of the evidence at trial. Father admitted at trial that he did not

know the names of the child's doctors and had never accompanied the child to

appointments. Father also testified at trial that, prior to filing the instant action, he had

                                             10
not visited the child's schools and had never met with any of the child's teachers. Father

testified that his paintless dent repair business requires him to travel out of town, and

Father admitted that he does not inform Mother when he is out of town on business. In

addition to alleging in his petition that Mother was "unfit" and that Mother had a history

of drug use, Father repeatedly expressed his disdain for Mother during his testimony. For

example, Father testified at trial that Mother sets a poor example for the child in that

"[s]he's showing [the child] that you can sleep all day and be up all night and live off, you

know, Section 8, WIC." Further, when asked to describe Mother in three words, Father

stated, "She's not -- not-- not attentive to our child." Then Father testified that he

believed Mother was an "absent mother."

       More to the point, Father does not contest that the findings made by the trial court

in support of its decision to award sole legal custody to Mother are supported by

evidence.    Instead, Father generally complains that the trial court drew "negative

inferences" from facts "through the clouded lens of [Mother's] testimony." [Appellant's

Brief p. 23] Father engages in a lengthy discussion about why the trial court should have

disregarded Mother's testimony as not credible, which would, according to Father, have

required the trial court to view Father's conduct through a different and more favorable

lens. Though Father couches his point on appeal in terms of the weight of the evidence,

Father is actually asking us to reject all of Mother's testimony and evidence as not

credible.

       Father's argument fails to recognize that because the trial court, as the finder of

fact, is in a superior position to assess the credibility of witnesses, we will not disturb the

                                              11
trial court's credibility findings on appeal. Durbin, 226 S.W.3d at 879. Thus, Father's

demand that we "should review all of [Mother's] testimony . . . [and] re-evaluat[e] [] the

negative conclusions drawn by the trial court about [Father]" is an invitation we will not

accept.

       Father also argues that the Judgment's award of sole legal custody to Mother

violates Missouri's public policy preference for joint legal custody. Though section

452.375.4 states that "the public policy of this state [is] 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," that public policy preference is not an absolute. If parents are unable "to

cooperate, communicate, and function as a unit in making decisions," then joint legal

custody is inappropriate, regardless the state's public policy. In re Marriage of Brown,

310 S.W.3d at 758. Here, the trial court considered the evidence presented at trial, and

concluded that Mother and Father were not able to cooperate, communicate, and function

as a unit in making decisions regarding the child. Thus, the trial court ordered that

Mother have sole legal custody of the child. This decision was supported by substantial

evidence.

       Father's second point on appeal is denied.

 Point Three: Whether the Judgment Made Specific Findings of Fact as Requested
                      by Father Pursuant to Rule 73.01(c)

       Father's third point on appeal asserts that the trial court erred in failing to make

detailed findings of fact that he requested pursuant to section 73.01(c), requiring reversal.


                                             12
Father claims on appeal that the trial court's Judgment fully addressed some of his

requests, ignored other requests, and addressed some requests in only a brief, conclusory

fashion.

       Rule 73.01(c) provides, in relevant part:

       If a party so requests, the court shall dictate to the court reporter or prepare
       and file a brief opinion containing a statement of the grounds for its
       decision and the method of deciding any damages awarded.

       The court may, or if requested by a party shall, include in the opinion
       findings on the controverted fact issues specified by the party. Any request
       for an opinion or findings of fact shall be made on the record before the
       introduction of evidence at trial or at such later time as the court may allow.

Where a party properly requests findings of specific fact issues, the provisions of Rule

73.01(c) are mandatory. Plager v. Plager, 426 S.W.3d 689, 692 (Mo. App. E.D. 2014).

"Failure of a court to prepare specified findings of fact as requested by counsel under

Rule 73.01 is error and mandates reversal when such failure materially affects the merits

of the action or interferes with appellate review." Hilligardt-Bacich v. Bacich, 174

S.W.3d 11, 14 (Mo. App. E.D. 2005). "[I]f the record supports the judgment or if the

court makes findings that substantially comply with a party's requests," then we will

affirm. Plager, 426 S.W.3d at 693.

       Prior to trial, Father duly requested that the trial court make findings of fact on

twenty-eight subjects. On appeal, Father contends that the trial court failed to make

findings, or made inadequate findings, with respect to ten of those subjects as follows:

       11) The role that each parent has played in the upbringing of the child,
       including how much time each parent has spent with the child, whether
       such time has been meaningful, and the impact of each parent's time with


                                             13
      the child on the child and the court's decision as to how the parents should
      divide regular parenting time with the child.

      ....

      15) How tax deductions relative to the minor child should be allocated.

      16) Whether either party should be ordered to contribute to the attorneys'
      fees of the other party, and, if so, to what extent, and what facts were taken
      into consideration by the Court in making such order.

      ....

      18) The needs of the [Mother's] other daughter as they relate to the
      [Mother's] ability to work.

      19) The needs of the [Mother's] other daughter as they relate to the
      suitability of the [Mother's] home for a principal residence for the child of
      these parties.

      20) The needs of the [Mother's] other daughter and the degree to which
      [Mother] is able to meet those needs, as such issues relate to the [Mother's]
      ability to perform her essential function as the parent of the child of these
      parties.

      21) Whether income should be imputed to [Mother], and if so, in what
      amount.

      ....

      23) Whether the child's time in the father's home may be spent in the
      company of the child's stepmother, half-sister and stepsister, even if
      [Father] is out-of-town [sic] at the time such time occurs.

      ....

      25) Whether the stepmother can provide transportation for the minor child
      to spend parenting time in [Father's] home.

      26) How the parties should divide or share the transportation of the child
      between them.

      The parenting plan provisions in the Judgment expressly noted that the child "shall

not be required to reside at Father's home when he is out of town working. When he is

                                           14
out of town working the visit is cancelled." This finding substantially complies with the

question posed by Item 23. The parenting plan in the Judgment also expressly noted that

"Father or his designee" would pick the child up at Mother's home for Father's parenting

time, and that Mother would retrieve the child from Father's home at the end of Father's

parenting time. This finding substantially complies with the questions posed by Items 25

and 26.

         The Judgment made numerous factual findings regarding the role of both Mother

and Father in the child's life, and the manner in which parenting time should be divided,

the subject of Item 11. With respect to Mother's upbringing of the child, the Judgment

found:

         The child has resided with Mother all her life and Mother had met all of the
         child's basic needs. She housed, fed and clothed the child. She has
         enrolled the child in excellent schools and the child has performed well in
         school earning honor roll recognition at times. Mother has overseen and
         scheduled all of the child's health care from birth to the present.

With respect to the Father's role in the upbringing of the child, the Judgment found that

Father: was invited but did not attend the child's birth; first saw the child when she was

five weeks old after Mother initiated the contact; began dropping by on Sundays for an

hour to see the child when she was four months old; offered no financial support for the

child until the state brought an administrative child support action against him when the

child was ten months old; began visiting the child on alternate weekends when she was in

preschool; expressed no concern for the child's health or health care providers throughout

her entire life; does not know the name of the child's pediatrician and has never attended

an office visit with the child though invited to do so; never attended any of the child's

                                             15
school activities or met with any of her teachers through the 6th grade; and has a history

of abandoning the child, noting the fifteen-month period between March 2006 and May

2007 when Father completely withdrew from the child and made no contact with, or

inquiries about, her.    Finally, the Judgment plainly describes the manner in which

parenting time will be divided. These collective findings substantially comply with the

question raised by Item 11.

       Item 21 asked the trial court to determine whether income should be imputed to

Mother. At the time the request for the finding was made, Mother was unemployed. The

Judgment noted that Mother had been unemployed "in 2011 and in 2012 until November

15, 2012," and noted that "[s]he is now employed and earns $1,560 per month." The trial

court's Form 14 attributed this income amount to Mother, substantially complying with

the question posed by Item 21.

       Item 16 addressed attorney fees, and asked the trial court to find whether either

party should be ordered to contribute to the attorney's' fees, and, if so, to what extent, and

what facts were taken into consideration by the Court.           The Judgment specifically

concluded:

       [Mother's attorney] has provided reasonable and necessary legal
       representation for Mother. She shall have Judgment against [Father] for
       $7,000 to cover a portion of the costs of Mother's legal fees.

The Judgment thus found whether and in what amount fees should be ordered paid, and

provided the factual basis for the amount awarded, noting it represented "reasonable and

necessary" fees for a portion of Mother's legal representation. The Judgment did not,



                                             16
however, explain the facts on which the trial court relied to decide to award Mother a

portion of her attorney's fees, though Father requested this factual finding.

       Moreover, the Judgment does not contain findings of fact for Item 15 (concerning

the division of tax deductions), or Items 18, 19, or 20 (each concerning the needs of

Mother's other daughter and the impact of those needs respectively on Mother's ability to

work, the suitability of her home, and her ability to perform her essential functions as a

parent).

       "The failure of a trial court to issue appropriately requested findings does not

always require reversal." Legacy Homes P'ship v. Gen. Elec. Capital Corp., 10 S.W.3d

161, 163 (Mo. App. E.D. 1999).          Unless the absence of required findings makes

meaningful appellate review impossible, the trial court's failure is harmless error. Id.; see

also Hilligardt-Bacich, 174 S.W.3d at 14. The issues raised by Father on appeal do not

implicate at all the subject matter of Items 15, 16, 18, 19, and 20 as to which no findings

were made, or do so only tangentially. Thus, the absent findings do not interfere with our

ability to conduct meaningful appellate review of father's claims of error.

       Father's third point on appeal is denied.

Point Four: Whether the Trial Court Erred in Designating Mother's Address as the
                              Address for the Child

       Father fourth point relied on asserts that the trial court erred in designating

Mother's residence as the principal address of the child for the purposes of mailing and

education because the trial court failed to appropriately consider and weigh evidence




                                             17
relating to the eight "best interests" factors identified in section 452.375.2 in making its

determination.

       Section 452.375.2 requires the trial court to consider eight factors when

"determin[ing] custody in accordance with the best interests of the child." (Emphasis

added.) "Custody" is statutorily defined as "joint legal custody, sole legal custody, joint

physical custody or sole physical custody or any combination thereof."              Section

452.375.1(1). Legal custody refers to the "decision-making rights, responsibilities, and

authority regarding the health, education and welfare of the child," while physical

custody concerns the "time during which a child resides with or is under the care and

supervision" of each parent. Section 452.375.1(2)-(3). While the statutory definition of

physical custody includes the word "reside," it does so only in reference to the time to be

spent with each parent.

       The Legislature recognized that an award of joint physical custody leaves

unresolved the child's "address" for purposes of education and mailing.             Section

452.375.5(1)-(2) provides that, if a trial court awards joint physical custody, "[t]he

residence of one of the parents shall be designated as the address of the child for mailing

and educational purposes." (Emphasis added.) Plainly, the designation of an address for

the child for mailing and educational purposes is not a custody determination, rendering

the eight factors found in section 452.375.2 inapplicable to the designation. See Loumiet

v. Loumiet, 103 S.W.3d 332, 339 (Mo. App. W.D. 2003) (noting that the designation of

an address for educational and mailing purposes is separate from the award of physical

custody because section 452.375.5 does not require the designation of the address to

                                            18
coordinate with the parent with whom the child is to reside for a greater period of time).

Father's fourth point on appeal is thus based on a faulty premise.

         Moreover, Father's argument following his point relied on never addresses how or

in what manner the trial court erred in designating Mother's residence as the child's

address for education and mailing purposes.                          Instead, Father complains about the

parenting time awarded each parent. "'An appellant must develop the contention raised in

the point relied on in the argument section of the brief.'" White v. Cole County, 426

S.W.3d 27, 35 (Mo. App. W.D. 2014) (quoting Hermann v. Heskett, 403 S.W.3d 136,

142 (Mo. App. E.D. 2013)). If the argument section fails to develop the contention raised

in the point relied on, then the point is deemed abandoned. Id.

         Father's fourth point on appeal is denied.




    Point Five: Whether the Trial Court Erred in Issuing a Protective Order as to
                            Mother's Medical Condition

         Father's fifth point on appeal asserts that the trial court erred in issuing a protective

order preventing discovery as to Mother's medical condition because "the health of the

parties is relevant to the determination of the best interest of the child." Father claims

that, because the trial court found in its Judgment that neither Mother nor Father had any

apparent health issues that prevented them from caring for the child, he suffered prejudice

as discovery could have permitted him to locate contrary evidence.6

         6
          Father's Brief collapses discussion of his fifth point relied on with his sixth point relied on, improvidently
believing both to address claims of error involving the admission of evidence. However, Father's fifth point relied

                                                           19
         In referencing the "protective order" which is the subject of Father's fifth point

relied on, Father includes a citation to the legal file. However, that citation takes us to the

motion for protective order filed by Mother on June 22, 2012, to protect her medical

records. Father acknowledges in his Brief that the legal file omits the court's order, and

assures the order will be forthcoming. [Appellant's Brief, p. 58 n.10] The legal file has

not been supplemented to include the purported protective order entered by the trial court

and about which Father complains.                      Father, as the appellant, bears the burden of

preparing the record on appeal, which must contain "all of the record, proceedings and

evidence necessary to the determination of all questions to be presented . . . to the

appellate court for decision." Rule 81.12(a), (c). We will not find error in the entry of an

order that either does not exist,7 or has not been provided for our review. Rule 81.12(a)

(requiring a copy of any judgment or order appealed from to be included in the record on

appeal); see also Brancato v. Wholesale Tool Co., 950 S.W.2d 551, 554 (Mo. App. E.D.

1997) ("If a matter complained of is not present in the record on appeal, there is nothing

for the court to review.").

         Father's Appendix does include an order apparently entered by the trial court on

August 1, 2012, addressing interrogatories propounded by Father on Mother relating to

health issues.8 The order directed Mother to answer three of the propounded questions,


on complains of error in the denial of discovery. Father's Brief fails to cite to any cases setting forth the applicable
standard of review for claims of error in the denial of discovery in violation of Rule 84.04(e).
          7
            Our review of the case docket sheet included in the legal file failed to locate any reference to an order
ruling Mother's motion for protective order.
          8
            This order is not in the legal file. However, it does have a "time stamp" consistent with other pleadings in
the legal file. Ordinarily, documents attached to the brief or included in an appendix but not in the legal file are not
considered on appeal. Moreland v. Div. of Emp't Sec., 273 S.W.3d 39, 41 n.1 (Mo. App. W.D. 2008). However, in
this case, there is confusion in the record suggesting that the physical order (which was sent by facsimile to the

                                                          20
and sustained her objections as to others. This order, however, is not a "protective order"

and plainly did not rule Mother's motion for protective order, as that motion sought relief

from the obligation to respond to a deposition notice and to a request for production of

documents, not to interrogatories. The August 1, 2012 order is not the subject of Father's

point on appeal and is thus irrelevant to this appeal.

         In any event, Father's Brief broadly argues that he suffered prejudice from the trial

court's refusal to allow him to conduct discovery about Mother's medical condition.

However, Father never persuasively explains what he expected to discover or how the

allegedly denied discovery would have materially affected the merits of this action,

rendering reversal of the trial court's judgment inappropriate. Precision Elec., Inc. v. Ex-

Amish Specialties, Inc., 400 S.W.3d 802, 812 (Mo. App. W.D. 2013).

         Father's fifth point on appeal is denied.

   Point Six: Whether the Trial Court Erred in Admitting Evidence Regarding the
         Response of Mother's Son to Learning About a Private Investigator

         Father's sixth point on appeal argues that the trial court erred in allowing Mother

to testify about her son's9 response to learning that Mother and her children were being

followed by a private investigator. Father asserts that the child's reported response to

Mother was inadmissible hearsay. Father claims that he suffered prejudice because

Mother's son's hearsay statement was considered by the trial court for the truth of the

matter asserted, notwithstanding a contrary assurance at trial.

parties) may never have been placed in the official court file. The court's docket sheet reflects that an order was
made sustaining Mother's objections to Father's medical and mental health questions, but the entry of an order to that
effect does not appear on Case.net. The existence of the order was discussed at trial, as Mother's attorney claims
never to have received the faxed order, but Father's attorney acknowledged receipt.
         9
           Mother's son is not the child who was the subject of the Judgment.

                                                         21
       A trial court has considerable discretion in admitting or excluding evidence. St.

Louis Cnty. v. River Bend Estates Homeowners' Ass'n, 408 S.W.3d 116, 123 (Mo. banc

2013). We will reverse the trial court's decision regarding the admission of evidence only

if the trial court abused its discretion. Id. An abuse of discretion occurs when the trial

court's decision is clearly against the logic of the circumstances, is arbitrary and

unreasonable, and indicates a lack of careful consideration. Id. If reasonable persons can

differ as to the propriety of the trial court's decision, then it cannot be said that the trial

court abused its discretion. Id. Improper admission of hearsay evidence constitutes

reversible error only if the evidence was prejudicial. Freight House Lofts Condo Ass'n v.

VSI Meter Servs., Inc., 402 S.W.3d 586, 593 (Mo. App. W.D. 2013).

       Here, Mother's attorney questioned her about the private investigator that Father

hired. They had a lengthy exchange in which Mother testified that she recognized the

private investigator who testified at trial as the same person who had been following her.

Mother's attorney then had the following exchange with Mother:

       Q: You said you have a son . . . ?

       A: Uh-huh.

       Q. Did [your son] see this individual watching your home?

       A: Yes.

At that point, Father's attorney objected, arguing that the question called for hearsay. The

trial court overruled the objection, finding the question was already asked and answered.

Mother's attorney asked whether Mother was concerned about her son's safety. Mother

answered in the affirmative.      Then, Mother's attorney asked whether her son was

                                              22
concerned, and Mother replied that he was. Following Mother's answer, Father's attorney

again objected that the question called for hearsay. Again, the trial court overruled the

objection but stated, "I'm not receiving it for the truth of the matter asserted, but for the

fact that the statement was made."

       On the subject of the private investigator, the Judgment states:

       Father hired a private investigator to follow [the child] for a time. He sat
       outside Mother's home.        Mother and the children observed him
       photographing and videotaping them. They were horrified. Grandmother
       came to live with them during this time. The family members spoke to
       each other about their fear. Nothing of concern was uncovered by the
       investigator. The experience of feeling "stalked" by a stranger who was
       hired by Father put a big dent in Mother's ability to engage in a trust [sic]
       relationship with Father.

(Emphasis added.) The premise of Father's sixth point on appeal is that the emphasized

language of the Judgment reveals that the trial court, contrary to its assurance during

Mother's testimony, relied on the son's statements regarding his fear of the private

investigator for the truth.

       Father's point, even if technically correct, fails to establish reversible error.

Though the Judgment mentioned the children's observations and fear, the import of the

above referenced paragraph is in its discussion of the impact on Mother's ability to trust

Father. Without trust between Mother and Father, the trial court reasoned, joint custody

would not be feasible. There is no indication in the Judgment that Mother's son's reaction

to the private investigator played any role in the trial court's decision to award Mother

sole custody of the child. Father suffered no prejudice. See Freight House Lofts, 402

S.W.3d at 593 ("'[T]he improper admission of hearsay evidence requires reversal only if


                                             23
such evidence is prejudicial.'" (quoting Saint Louis Univ. v. Geary, 321 S.W.3d 282, 291

(Mo. banc 2009))).

       Father's sixth point on appeal is denied.

                               Mother's Motion on Appeal

       Mother, pursuant to Local Rule XXIX, filed a motion to remand to the trial court

for determination of attorney's fees and costs on appeal, and we elected to take the

motion with the case. Mother asserts that she is entitled to attorney's fees pursuant to

section 452.355. The trial court has already made the initial determination to award

Mother a portion of her attorney's fees at trial. Accordingly, we sustain Mother's motion

and remand this case to the trial court for determination of Mother’s fees request.

                                        Conclusion

       We affirm. We remand this matter to the trial court for determination of Mother's

request for attorney's fees and costs on appeal.



                                           __________________________________
                                           Cynthia L. Martin, Judge


All concur




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