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Summary of Opinion: In re the Marriage of Rita K. Berger and Kent N. Berger (Mo. Ct. App., Aug. 22, 1997)

Factual and Procedural Background

Rita K. Berger (Mother) and Kent N. Berger (Father) were married on February 14, 1987. Two children were born during the marriage: Jessica (born January 12, 1988) and James (born September 18, 1991). The parties separated on December 15, 1993, and Mother filed a petition for dissolution of marriage on January 19, 1994. A temporary order entered February 25, 1994, granted primary custody of the children to Mother and specified visitation to Father. Father answered and counterclaimed seeking primary physical custody. Father was on active military duty at Fort Leonard Wood at the time of the marriage and was later transferred to Virginia in February or March 1995.

The parties agreed on most property division issues, but disagreed about two items: (1) the marital home, and (2) Father's nondisability military pension. The case was tried on March 29, 1995 and August 25, 1995. The trial court awarded primary physical custody of the children to Father and awarded Mother the marital residence and 20% of Father's military pension. Both parties appealed: Mother challenged the custody decision and Father challenged the property division (home and pension). The appellate court affirmed the trial court's judgment.

Legal Issues Presented

  1. Whether the trial court's award of primary physical custody of the parties' two minor children to Father was against the weight of the evidence.
  2. Whether the trial court abused its discretion in the division of marital property by awarding Mother the marital home.
  3. Whether the trial court abused its discretion in awarding Mother 20% of Father's nondisability military pension.

Arguments of the Parties

Mother's Arguments

  • Mother's sole appellate point contends that the trial court's award of primary physical custody to Father was against the weight of the evidence.

Father's Arguments

  • Father contends the trial court abused its discretion by awarding Mother the marital home.
  • Father contends the trial court abused its discretion by awarding Mother 20% of his nondisability military pension.
  • Father argued the court failed to consider Mother's conduct (an extramarital affair during the final year of the marriage) as a statutory factor under § 452.330.1(4) and that such conduct should have reduced Mother's share of the pension.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976) Standards for appellate review: affirm if supported by substantial evidence, not against the weight of the evidence, and does not erroneously declare or apply the law; caution in setting aside judgments as against the weight of the evidence. Used as the controlling standard of review for the appeal; the court applied the Murphy standard when reviewing both custody and property rulings.
Sinclair v. Sinclair, 837 S.W.2d 355 (Mo.App. W.D. 1992) Guideline to view evidence and permissible inferences in the light most favorable to the trial court's decision, disregarding contrary evidence and inferences. The appellate court applied this approach in viewing the evidence supporting the trial court's custody and property determinations.
In re Marriage of Patroske, 888 S.W.2d 374 (Mo.App. S.D. 1994) Trial judge has broad discretion in determining best interests of a child. Supported deference to the trial court's custody decision.
In re Marriage of Bennett, 938 S.W.2d 952 (Mo.App. S.D. 1997) Presumption that the trial court awarded custody consistent with children's best interests due to superior position to judge credibility and intangibles. Reinforced the appellate court's deference to the trial court's custody determination.
In re Marriage of Campbell, 868 S.W.2d 148 (Mo.App. S.D. 1993) Trial court is free to believe or disbelieve all, part, or none of any witness's testimony. Supported the trial court's discretion to accept or reject witness testimony in custody proceedings.
In re Marriage of Sisk, 937 S.W.2d 727 (Mo.App. S.D. 1996) Greater deference is afforded trial court decisions in child custody determinations than in other cases. Used to justify heightened appellate deference to the custody award to Father.
In re Marriage of V___ A___ E___, 873 S.W.2d 262 (Mo.App. S.D. 1994) An appellate court will not disturb a trial court's custody award unless it is manifestly erroneous and the welfare of the child requires a different disposition. Applied in concluding the custody award would not be disturbed absent manifest error.
Hartig v. Hartig, 738 S.W.2d 160 (Mo.App. E.D. 1987) "Morals" are a pertinent factor in determining custody. Cited to support the trial court's consideration of the mother's boyfriend's character and conduct in assessing custody.
Rodenberg v. Rodenberg, 767 S.W.2d 594 (Mo.App. W.D. 1989) Support for considering moral fitness as relevant in custody determinations. Referenced alongside Hartig to justify attention to moral factors impacting children.
Jones v. Jones, 937 S.W.2d 352 (Mo.App. S.D. 1996) A parent's conduct in the presence of children is a critical factor; moral fitness may justify denying custody. Applied to validate the trial court's concern about the mother's boyfriend and the children's exposure to him.
In re Marriage of Spence, 943 S.W.2d 373 (Mo.App. S.D. 1997) Trial court has considerable discretion in dividing marital property; appellate interference only when division is so heavily weighted as to be an abuse of discretion. Supported deference to the trial court's property division awarding the home and pension shares.
Ewing v. Ewing, 901 S.W.2d 330 (Mo.App. W.D. 1995) Presumption of correctness of the division of marital property; burden on the challenging party to overcome presumption. Used to place the burden on Father to show the property division was improper.
Vehlewald v. Vehlewald, 853 S.W.2d 944 (Mo.App. E.D. 1993) Section 452.330 requires a fair and equitable division of marital property but not an equal division. Applied to explain the statutory standard governing property division.
In re Marriage of Torix, 863 S.W.2d 935 (Mo.App. S.D. 1993) Statutory factors for division of marital property are not exclusive; trial court has flexibility and broad power to accommodate parties' needs. Reinforced the trial court's discretion in allocating the marital home and pension.
In re Marriage of Strassner, 895 S.W.2d 614 (Mo.App. E.D. 1995) Military nondisability retirement benefits received for service during marriage are marital property. Supported treating Father's military pension (service during marriage) as marital property includable in division.
Fairchild v. Fairchild, 747 S.W.2d 641 (Mo.App. W.D. 1988) Contingent and speculative nature of retirement benefits does not deprive them of characterization as marital property. Applied to justify awarding a share of the pension even though the pension had not yet vested.
Bixler v. Bixler, 810 S.W.2d 95 (Mo.App. E.D. 1991) Evidence of marital misconduct is relevant only if it imposed extra burden on the marriage or caused its breakdown. Used to reject Father's contention that Mother's alleged affair required a different pension allocation because there was no evidence it caused the marriage breakdown or added burdens.

Court's Reasoning and Analysis

The appellate court reviewed the trial court's rulings under established standards of deference: affirming if supported by substantial evidence, not against the weight of the evidence, and correctly applying the law (Murphy v. Carron). The court emphasized that evidentiary inferences are viewed in the light most favorable to the trial court and that child custody determinations merit particular deference because the trial court is best positioned to judge witness credibility and intangible factors.

Custody analysis:

  • The trial court considered the statutory directive under § 452.375.2 to determine children's best interests and to consider all relevant factors, including those specifically enumerated (such as which parent is more likely to allow frequent and meaningful contact with the other parent and the parent's intent to relocate).
  • The trial court expressly found it did not believe Mother was a bad parent but expressed concern about Mother's judgment in specific areas: instances of non-cooperation with Father's visitation (including denying visitation the day before trial) and occasions when Mother's boyfriend stayed overnight in the trailer with the children present.
  • The boyfriend's criminal record (including a conviction for assaulting his ex-wife) prompted the trial court to consider moral fitness as relevant to custody; the court cited authorities recognizing morals and conduct in the presence of children as pertinent factors.
  • The trial court was "comfortable" that Father, now residing in Virginia, could provide appropriate schooling and an appropriate home for the children; the court considered the relocation factor (§ 452.375.2(7)) but concluded Father's move did not mandate a different custody disposition.
  • Given the totality of evidence and the deference accorded the trial court, the appellate court was not firmly convinced the welfare of the children required altering the custody award and concluded the trial court did not abuse its discretion.

Property division analysis:

  • The court applied the statutory standard for division of marital property under § 452.330, which requires a fair and equitable division and grants the trial court broad discretion to accommodate parties' needs.
  • Regarding the military pension, the court treated nondisability retirement benefits earned during the marriage as marital property (citing Strassner) and noted that Father was married to Mother for 8 of the 20 qualifying years (40%); the trial court awarded Mother half of that marital portion, i.e., 20% of the pension. The appellate court accepted that approach and relied on precedent that contingent or speculative retirement benefits nevertheless retain character as marital property (Fairchild).
  • Father's argument that Mother's alleged extramarital affair should reduce her pension share was rejected because there was no evidence that Mother's conduct placed an extra burden on the marriage or caused its breakdown (citing Bixler).
  • Regarding the marital home, the court noted the home was valued at $60,000 and subject to a $63,608 mortgage. Because Father does not intend to use the home to raise the children (whom he has primary custody of), the appellate court found no prejudice to Father by allocating the home to Mother and declined to disturb the trial court's division given the presumption of correctness and the wide discretion afforded trial courts.

Holding and Implications

Holding: JUDGMENT AFFIRMED.

Implications:

  • Direct effect on the parties: The trial court's decree stands — Father is awarded primary physical custody of the two minor children; Mother is awarded the marital residence and 20% of Father's nondisability military pension (representing one-half of the marital portion, i.e., half of the 40% marital portion = 20% of the total pension).
  • The appellate court applied and affirmed established principles of deference in custody disputes and broad trial court discretion in marital property division; the opinion did not announce new legal precedent but relied on existing authorities and statutory directives to uphold the trial court's exercise of discretion.

IN RE THE MARRIAGE OF RITA K. BERGER AND KENT N. BERGER, RITA K. BERGER, PLAINTIFF-APPELLANT, v. KENT N. BERGER, DEFENDANT-RESPONDENT.

PHILLIP R. GARRISON, Judge.

Rita Berger (Mother) and Kent Berger (Father) each appeal from a decree dissolving their marriage. Mother contends that the trial court erred in awarding Father primary physical custody of their two minor children. Father contends that the trial court abused its discretion in awarding Mother the marital home and 20% of his military pension. We affirm.

Father was on active duty in the military at Fort Leonard Wood, Missouri, when he married Mother on February 14, 1987. Two children were born during the marriage: Jessica, born on January 12, 1988, and James, born on September 18, 1991. The parties separated on December 15, 1993, and Mother filed a petition for dissolution of marriage on January 19, 1994. A temporary order was entered on February 25, 1994, in which primary custody of the children was granted to Mother, with Father having specified visitation rights. Father later filed an answer and counterclaim in which he sought primary physical custody of the children. He was subsequently transferred by the military to Virginia in February or March, 1995.

Mother and Father agreed about the division of the majority of their property. Two items of property on which they could not agree — the marital home and Father's military pension — are the subjects of Father's appeal. The case was heard on March 29, 1995, and August 25, 1995. The trial court, inter alia, awarded primary physical custody of the children to Father, and awarded Mother the marital residence and 20% of Father's military pension to Mother. Both parties appeal.

The trial court's judgment must be affirmed if it is supported by substantial evidence, it is not against the weight of the evidence, and it neither erroneously declares nor applies the law. Murphy v. Carron , 536 S.W.2d 30, 32 (Mo.banc 1976). We view the evidence and all permissible inferences therefrom in the light most favorable to the decision of the trial court, disregarding all contrary evidence and inferences. Sinclair v. Sinclair , 837 S.W.2d 355, 357 (Mo.App. W.D. 1992).

In Mother's sole point on appeal, she contends that the trial court's award of primary physical custody of the children to Father was against the weight of the evidence. In our review of Mother's claim, we are mindful that "[a]ppellate courts should exercise the power to set aside a decree or judgment on the ground that it is `against the weight of the evidence' with caution and with a firm belief that the decree or judgment is wrong." Murphy v. Carron , 536 S.W.2d at 32.

The trial judge has broad discretion in determining the best interests of a child and great deference is granted to the lower court's decision when custody of minor children is involved. In re Marriage of Patroske , 888 S.W.2d 374, 383 (Mo.App. S.D. 1994). It is presumed that the trial court awarded custody in accordance with the childrens' best interests because of its superior position to judge the credibility of witnesses, as well as their character, sincerity, and other intangibles that might not be completely revealed by the record. In re Marriage of Bennett , 938 S.W.2d 952, 954 (Mo.App. S.D. 1997). The trial court is free to believe or disbelieve all, part or none of the testimony of any witness. In re Marriage of Campbell , 868 S.W.2d 148, 150 (Mo.App. S.D. 1993). Greater deference is afforded to the trial court's decision in child custody determinations than in other cases. In re Marriage of Sisk , 937 S.W.2d 727, 730 (Mo.App. S.D. 1996). "[A]n appellate court will not disturb a trial court's custody award unless it is manifestly erroneous and the welfare of the child requires some disposition other than that made by the trial court." In re Marriage of V___ A___ E___ , 873 S.W.2d 262, 266 (Mo.App. S.D. 1994).

Section 452.375.2, RSMo 1994, directs the trial court to make its custody determination based on the best interests of the children and, in doing so, to consider "all relevant factors," including eight which are specifically enumerated. In granting primary physical custody of the children to Father, the trial court noted that it did not believe Mother was a bad parent. It was concerned, however, with Mother's judgment in several areas. There was evidence that Mother had not been cooperative with Father concerning his visitation with the children. For instance, the trial court noted that she had denied Father visitation the day before trial because she was having dresses seamed for their daughter. One of the factors specifically listed in the statute is "[w]hich parent is more likely to allow the child frequent and meaningful contact with the other parent." See § 452.375.2(8).

All statutory references are to RSMo 1994, unless otherwise indicated.

Mother also admitted at trial that there had been occasions when her boyfriend spent the night with her in her trailer with the children present. The trial court expressed concern not only with this arrangement, but also with the boyfriend's character, in light of the fact that he had a criminal record which included a conviction for assaulting his ex-wife. Although not specifically listed as a factor in § 452.375, "morals are a pertinent factor to be taken into account in determining whose custody will serve the best interests of the child." Hartig v. Hartig , 738 S.W.2d 160, 161 (Mo.App. E.D. 1987); see also Rodenberg v. Rodenberg , 767 S.W.2d 594, 596 (Mo.App. W.D. 1989). "A trial court may properly consider moral fitness in determining child custody issues. A mother's conduct of affairs with the knowledge of children and while they are present in the house has been held to be a critical factor in denying her custody. Private personal conduct by a parent which could well have an effect on children during the years in which their character, morality, virtues and values are being formed cannot be ignored or sanctioned by courts." Jones v. Jones , 937 S.W.2d 352, 356 (Mo.App. S.D. 1996) (citations omitted).

The trial court was obviously concerned about the boyfriend's influence on the children. At the same time, it was "comfortable that the children in Virginia will have good schooling and have an appropriate home." We recognize that Father now resides in Virginia, and that "[t]he intention of either parent to relocate his residence outside the state" is a factor to be considered. See § 452.375.2(7). However, after a careful review of the entire record, we are not firmly convinced that the welfare of the children mandates some other custodial disposition. We are unable to conclude that the trial court abused its discretion in awarding primary physical custody of the children to Father. Mother's point is denied.

In Father's point on appeal, he alleges that the trial court abused its discretion when it awarded Mother the marital home, as well as 20% of Father's nondisability military pension. A trial court has considerable discretion in dividing marital property, and an appellate court will only interfere if the division is so heavily and unduly weighted in favor of one party as to amount to an abuse of that discretion. In re Marriage of Spence , 943 S.W.2d 373, 377 (Mo.App. S.D. 1997). "We will presume the correctness of the division of marital property, and the party challenging the division bears the burden of overcoming that presumption." Ewing v. Ewing , 901 S.W.2d 330, 333 (Mo.App. W.D. 1995).

"The division of marital property is governed by § 452.330 . . . . That statute requires a fair and equitable division of the marital property in light of the individual circumstances of each case, but does not require an equal division." Vehlewald v. Vehlewald , 853 S.W.2d 944, 949 (Mo.App. E.D. 1993). The factors specifically enumerated in the statute are not exclusive and the trial court has great flexibility and far-reaching power in dividing the marital property so as to accommodate the needs of the parties. In re Marriage of Torix , 863 S.W.2d 935, 938 (Mo.App. S.D. 1993).

With respect to Father's pension, it appears from the record that Father was married to Mother for eight of the twenty years (40%) he was required to serve in order to qualify for his military pension. The trial court awarded Mother half of that amount, or 20% of the pension. Section 452.330.3 provides that "[a]ll property acquired by either spouse subsequent to the marriage and prior to a decree of legal separation or dissolution of marriage is presumed to be marital property . . . ." See also Ewing v. Ewing , 901 S.W.2d at 333. "Missouri considers military nondisability retirement benefits received for service during marriage as marital property." In re Marriage of Strassner , 895 S.W.2d 614, 616 (Mo.App. E.D. 1995). We note that Father has not yet served the requisite amount of time in order to qualify for retirement benefits, but this does not affect Mother's entitlement to them once they vest. "The fact that entitlement to retirement benefits depend upon contingencies and by their nature are speculative — both as to future entitlement thereto, and as to amounts — does not deprive them of their character as marital property." Fairchild v. Fairchild , 747 S.W.2d 641, 643 (Mo.App. W.D. 1988).

Father argues that the court failed to consider Mother's conduct in dividing the pension. See § 452.330.1(4). According to Father, Mother engaged in an extramarital affair during the final year of their marriage and therefore Mother received a greater percentage of the pension than she was entitled to. In considering Father's argument, we note that "there is no evidence that Mother's conduct placed an extra burden on the marriage or caused the breakdown of the marital relationship." See Bixler v. Bixler , 810 S.W.2d 95, 101 (Mo.App. E.D. 1991). The trial court did not abuse its discretion in awarding Mother 20% of Father's nondisability military pension.

Father also contends that the trial court abused its discretion in awarding the marital home to Mother. The trial court allocated the marital home with a value of $60,000 to Mother, subject to a $63,608 mortgage. In light of the fact that Father does not intend to use the marital home to raise the children over whom he has primary physical custody, we fail to see how Father was prejudiced when the amount owed on the home exceeds its present value. In view of the discretion afforded trial courts concerning the division of marital property and the presumption of the propriety of its award, we are unable to conclude that the trial court erred in this regard. Father's point is denied.

Judgment affirmed.

Prewitt, J., — concur.

Crow, J., — concur.

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IN RE THE MARRIAGE OF BERGER
(Aug 22, 1997)