NOLAND-VANCE v. VANCE

e two oldest girls, Elise and Deanie, [Mother] shall be designated as the sole legal and sole physical custodian of those children.

The court found that the fourth factor strongly favored Father because:

This Court entered five separate Temporary Visitation Orders throughout the course of this case. All the orders were pursuant to the [GAL's] recommendation for supervised visitation for [Father] with the children. The Court continued modifying the orders to meet the needs of the parties, including changing supervisors of the visits as [Mother] moved to different locations. With each Temporary Order, [Mother] and/or the children would have an excuse why that particular order could not or would not be followed. The testimony at trial was that [Father] has had the sum total of only 30 minutes supervised contact with the children since June, 2005.

This Court is firmly convinced that [Mother] will never follow the Court's orders so that [Father] can have a relationship with his children or work to repair the damage that has been done. Further evidence of [Mother's] blatant disregard for this Court's orders is her refusal to follow 26th Judicial Circuit Local Rule 68.7 which requires both parents to attend a parent education program to learn how to avoid possible detrimental effects on children brought upon by dissolution cases. On the first day of trial [Mother] stated that she had not completed the program during the almost two year period of time this case has been pending. [Mother] requested the Court waive the requirement. Her request was denied. It was approximately one month later after trial that [Mother] filed her certificate of completion of the required program.

The Court heard testimony and received the psychological evaluations of Dr. Alan Aram, Psy.D. His evaluations were marked as an exhibit and sealed in the Court's file. Dr. Aram was able to evaluate [Mother and Father] and interview two children, Elle and James. Dr. Aram concluded, as did this Court, that [Mother's] allegation of [Father's] unilateral "beating and terrorist coercion and threats of abuse and death" were not supported by the information he received. If [Mother] has custody of the children, the "prognosis is poor" for [Father] to have a normal relationship with the children (see Page 32 of Dr. Aram's report). This Court is convinced that all the children have been alienated from their father by their mother. [Mother] engaged in purposeful behavior to accomplish this end. . . .

The fifth factor dealt with the children's adjustment to the child's home, school and community. With respect to this factor, the court made the following finding:

The facts which would support this are somewhat unknown because [Mother] has failed to follow the Orders of this Court regarding advising the [GAL] of the children's circumstances, including but not limited to, education and place of residence. Furthermore, the children have each made unfounded complaints to the Missouri Bar Association alleging that the [GAL] has failed to perform his duties. [Mother] and the children have intentionally failed to keep the [GAL] informed because they are mad at him because he has not followed their wishes for no visitation with their father. The Court finds attorney J. Christopher Allen has performed his duties as [GAL] pursuant to the Standards set forth by the Missouri Supreme Court. As [GAL] he must advocate the children's best interest rather than merely seek to follow the children's wishes.

Furthermore, the Court was able to determine from the evidence that the older children have been home schooling the three younger ones. [Mother] did not submit any evidence of their current academic status.

[Father] testified he will have the children tested to determine their current academic status and educational needs, if any. The factor favors [Father]. It is in the best interests of the children to establish and maintain a stable home and school environment, if possible. For the three younger children, [Father] will be able to do that.

With respect to the sixth factor, the trial court made several pertinent findings which were based upon its assessment of the credibility of the witnesses and what weight should be accorded to various parts of the conflicting evidence. The court found Mother and Father had engaged in a "pattern of domestic violence" with each other, but the extent of any physical abuse of Mother by Father had been exaggerated by Mother, the children and Mother's witnesses. The court also found that there was no credible evidence of any physical abuse of the children by Father and that "[Mother] has kept [Father] from having any meaningful contact with the minor children since the parties separated, contrary to this Court's previous five (5) Orders and Judgments. [Mother] has attempted to and in all likelihood has successfully, alienated the affections of the children towards [Father]." Finally, the court believed Dr. Aram's testimony that: (1) Mother has "maladaptive personality traits with high levels of defensiveness, dramatic expression of emotion and all good/bad thinking"; and (2) the "prognosis is poor" for individual counseling to change the "psychological diagnosis that underly [Mother's] alienating behavior[.]"

The seventh factor weighed in Father's favor because:

[Mother] has moved the children on 40 occasions while this matter was pending. She failed to provide any notice to [Father] or the [GAL] of her whereabouts. [Mother] failed to keep the [GAL] advised of her current address as ordered by the Court. [Father] intends to reside in Kansas City metropolitan area and has not indicated any intent to relocate the principal residence of the minor children.

The eighth factor dealt with the wishes of the children as to their custodian. The court decided this factor was neutral because:

There is no credible evidence as to the wishes of the children regarding custody before the Court. Because of [Mother's] alienation of the children's affections to-wards [Father], the Court gives little weight to what the children have stated to the [GAL], third parties and the Court during in camera testimony.

To support reversal of the judgment under Point I, Mother advances two different arguments. We will address each in turn.

Mother's first argument is that the trial court failed to consider the children's best interests, as required by § 452.375.2, because the court wrongly found that Mother had alienated the children's affections toward Father and that he had not abused the children. To support this argument, however, Mother relies only upon the evidence favorable to her and ignores all of the evidence tending to support the trial court's decision. The gist of Mother's argument is that both the trial court and this Court are required to accept as true all of the evidence which Mother presented. Mother's argument ignores the applicable standard of review, which this Court is duty-bound to follow. The issues below were hotly contested, and the trial court was presented with conflicting evidence on nearly every subject. "Great deference must be given to the trial court's resolution of conflicts in evidence, and [an appellate court] gives due regard to the court's opportunity to have judged the credibility of the witnesses before it." MC Development Co., LLC v. Central R-3 School Dist. of St. Francois County, 299 S.W.3d 600, 602 (Mo. banc 2009). Accordingly, this Court defers to the trial court's credibility determinations and the weight assigned to witness testimony. In re Marriage of Dolence, 231 S.W.3d 331, 333-34 (Mo.App. 2007). "The trial court is free to believe all, none, or part of the testimony of any witness." Youngberg v. Youngberg, 194 S.W.3d 886, 889 (Mo.App. 2006). This includes even uncontradicted testimony. Selby v. Smith, 193 S.W.3d 819, 824 (Mo. App. 2006). Mother's argument would require us to ignore the credibility determinations made by the trial court, as well as its resolution of conflicts in the evidence. This we cannot do. Buschardt v. Jones, 998 S.W.2d 791, 796 (Mo.App. 1999); Hankins v. Hankins, 920 S.W.2d 182, 188 (Mo. App. 1996); K.J.B. v. CAB., 883 S.W.2d 117, 121-22 (Mo.App. 1994).

When the evidence favorable to the trial court's decision is considered, as it must be, it is clear that the finding as to Mother's alienation of the children's affection toward Father was supported by the evidence. Of "primary importance" to the court was Father's Exhibit S, which contained the voice mail recordings from Father's cell phone that were left by James just after moving with Mother to her parents' home in Camden County. The court determined that these voice mails were:

evidence of James' close relationship with his father. . . . He expressed his love for his father during each call. He was not fearful of [Father]. . . . James clearly wanted to be with his father and the Court considered this evidence as very credible. In his words and actions James did not act as though he had been subjected to extensive abuse as described by [Mother] and the three older children.

We reject Mother's argument that James made these calls only because "he wanted to go back to Kansas City to be with his friends and games . . . [and] he was bored at his grandparents' house." It was up to the trial court to decide what weight to give the voice mail recording. We defer to the trial court's superior ability to assess the credibility of the witnesses, along with their character, sincerity and other intangibles not completely revealed by the record. In re Marriage of Sisk, 937 S.W.2d 727, 730 (Mo.App. 1996); Baker v. Baker, 923 S.W.2d 346, 347 (Mo.App. 1996). The trial court's finding of parental alienation by Mother also was supported by Dr. Aram's testimony, Pastor Buzan's letter, and the findings and recommendations of the GAL. The foregoing evidence amply supports the trial court's decision. "We will not substitute our judgment for that of the trial court so long as credible evidence supports the trial court's beliefs." A.B.C. v. C.L.C., 968 S.W.2d 214, 219 (Mo.App. 1998). Mother's argument that the trial court's decision is against the weight of the evidence fares no better. After carefully reviewing the entire trial record, this Court does not have a firm belief that the judgment was wrong. Simpson v. Strong, 234 S.W.3d 567, 578 (Mo.App. 2007). The trial court's best interest finding is supported by the evidence and is not against the weight of the evidence.

Mother's second argument is that the trial court erred by awarding Father sole legal and sole physical custody of James, John and Diane. The trial court considered a joint custody arrangement, but it found that joint custody was inappropriate due to Mother's unjustified failure to communicate with Father:

[Mother] claims [Father] has engaged in domestic violence toward her and the children. [Mother] maintained that is the primary reason for not communicating with [Father] about the children. Furthermore, [Mother] insisted none of the children wanted any contact with their father and she allowed their wishes to control. Regarding the allegations of domestic violence, [Mother] failed to present any credible evidence of these assertions. The Court gives further analysis when discussing the case in light of Section 452.375[.2], RSMo., included herein. Therefore, [Mother's] failure to communicate with [Father] was unjustified and not in the best interest of the children.

The court further found that Mother failed to keep Father informed as to any information concerning the children's health, education or welfare. The court concluded that, because of Mother's failure to communicate with Father about the children, joint physical custody and joint legal custody were not appropriate. For the same reasons as set forth in the above finding, the court found the second and third possible joint custody arrangements (joint physical/sole legal and joint legal/sole physical) were similarly inappropriate. The court decided that the appropriate custody arrangement was to award sole legal and physical custody to Father.

The fifth potential custody arrangement was not at issue because there had been no requests of third party custody or visitation.

Mother argues that the trial court's findings are insufficient to show that it chose the appropriate custody arrangement, as required by § 452.375.5. According to Mother, the trial court should have awarded joint legal and physical custody of James, John and Diane to both parents. The premise of this argument is that the trial court erred by finding that "[Regarding the allegations of domestic violence, [Mother] failed to present any credible evidence of these assertions." Mother argues this initial finding under § 452.375.5 is inconsistent with the court's later best interests finding under § 452.375.2 when the court specifically found "domestic violence has occurred with these parties." Mother then spends ten pages of her brief recounting testimony from her witnesses concerning this domestic violence.

In response, Father argues — and this Court agrees — that Mother has misinterpreted the trial court's finding. The court's initial finding under § 452.375.5 that Mother failed to produce any "credible evidence of domestic violence" related only to the issue of whether Father had committed domestic violence against any of the children. Based upon this finding, which turned on the credibility of the respective witnesses on this issue, the court then found that Mother's refusal to communicate with Father based on false allegations of child abuse was unjustified. This finding is entirely consistent with the court's later best interests finding under § 452.375.2 that "Mother failed to produce any credible evidence regarding domestic violence towards the children." The court also was very clear in finding that domestic violence had occurred with "these parties," which referred exclusively to Mother and Father. Based upon our thorough review of the record, the court's finding that Mother failed to produce any credible evidence regarding domestic violence by Father toward the children is supported by substantial evidence and is not against the weight of the evidence. The only witnesses who testified to such alleged abuse were Mother and the children. Given the court's finding of extreme parental alienation in this case, the court gave "little weight" to the testimony of the children or Mother. It was well within the trial court's discretion to accept or reject all, part or none of the testimony it hears. In re Marriage of Eikermann, 48 S.W.3d 605, 608 (Mo.App. 2001). This Court defers to the trial court's assessment of witnesses' credibility. KJ.B. v. CAB., 883 S.W.2d 117, 121-22 (Mo.App. 1994). None of Mother's other witnesses had any personal knowledge that Father had abused any of the children. Because the challenged finding is adequately supported by the evidence and is not against the weight of the evidence, Mother's argument that the trial court failed to award the appropriate custody arrangement pursuant to § 452.375.5 fails. Mother's first point is denied.

Mother also challenges the court's findings that: (1) Mother allowed the children's wishes to control; (2) Mother failed to communicate with Father; and (3) Mother failed to disclose the children's school/health information. Mother relies, however, only upon evidence favorable to her in challenging these findings. Obviously, Mother's evidence was contradicted by Father's evidence, which the trial court found to be credible. On appeal, this Court not only defers to the trial court's assessment of witnesses' credibility, but accepts the trial court's resolution of conflicts in the evidence. K.J.B., 883 S.W.2d at 121-22. Accordingly, Mother's additional challenges fail.

Point II

In Point II, Mother contends that, "[e]ven assuming the trial court's finding of alienation was correct," the trial court misapplied the law in splitting custody and separating the three youngest siblings from the three older siblings. She argues the trial court's order "violates Missouri public policy and law favoring preservation of sibling relationships and physical community." The facts necessary for the disposition of this point have already been presented in connection with our discussion of Point I.

Mother also argues that the temporary custody order required the trial court to find a substantial change of circumstances before switching custody from Mother to Father. Mother's temporary custody award was just that — temporary, awaiting a full hearing on that issue. Father was not required to prove a change in circumstances in order to be awarded custody after a trial on the merits. See n. 13, supra.

Mother is correct that "absent exceptional or unusual circumstances, Missouri courts do not support the separation of siblings or split custody." In re Marriage of Barton, 158 S.W.3d 879, 884 (Mo. App. 2005). "However, it is also well established that the trial court has the authority to order such a custody arrangement if it is in the best interests of the children." Id. "There is no absolute set of rules to follow when awarding child custody; each case must be examined in light of its own set of unique facts." Id.; Durbin v. Durbin, 226 S.W.3d 876, 880 (Mo.App. 2007). Here, the trial court specifically found that a split custody arrangement was in the children's best interests based upon the exceptional and unusual circumstances in this case.

Mother primarily relies on the exceptional circumstances in Barton and Durbin, supra, in which the appellate courts upheld separation of siblings where there were little or no meaningful relationships between siblings, and they had an opportunity for visitation. See Barton, 158 S.W.3d at 884 (upholding split custody award of son, age 16, to father and custody of son, age 11, to mother); Durbin, 226 S.W.3d at 880 (upholding split custody award of daughter, age 16, to mother and custody of sons, ages 12 and 10, to father). Mother argues the case at bar is distinguishable because the evidence showed that all six siblings were unusually close, the older sisters were like second mothers to the younger siblings, and no visitation was available, Accordingly, Mother asserts that the trial court misapplied the law by separating the siblings. This Court disagrees.

First, Mother ignores the trial court's finding that the older siblings were a negative influence on the younger siblings by causing them to be "unjustifiably afraid" of Father and further alienating their affections for him. In this particular respect, the three older daughters were behaving much like Mother. With respect to James, the court found that, since June 2005, the boy's "attitude toward his father has changed and been influenced by the conduct of [Mother] and the three oldest girls." The court also found that the "three youngest children did their best to mimic the extreme hatred toward their father as shown by the three oldest children." The court further found the "three youngest children were very articulate to the point of sounding rehearsed in their testimony.

They seemed like `little adults.'" This Court recognizes that "[a] child's interrelationship and interaction with his or her siblings are relevant factors to consider in custody decisions." Scott v. Steelman, 953 S.W.2d 147, 150 (Mo.App. 1997). "However, those factors must be weighed and balanced in light of an overriding concern for the best interests of the child." Id.

Second, Mother ignores other exceptional circumstances to support separation of siblings, which include alienation of a child's affection for a parent. "Alienation of a child's affection and interference with visitation are grounds for a major custody change " Ellis v. Ellis, 747 S.W.2d 711, 715 (Mo.App. 1988); see Cornell v. Cornell, 809 S.W.2d 869, 874 (Mo. App. 1991); Gentry v. Simmons, 754 S.W.2d 579, 582 (Mo.App. 1988). Separating older and younger siblings because of mother's alienation of affection towards the father was upheld in Garrett v. Garrett, 464 S.W.2d 740 (Mo.App. 1971), the facts of which are remarkably similar to those in this case. In Garrett, mother repeatedly denied father visitation, and by the time of trial, the two older children's affections toward their father had "been so seriously alienated that it would be unwise to transfer custody to him." Id. at 744. The trial court believed, however, "that before [mother's] bitterness towards [father] . . . should be permitted to further permeate the feelings of the two younger children and permanently alienate their affections for [father], it would be to their best interests and welfare that their custody be placed with the father "This Court determined that the "discretion of the trial court was wisely exercised in this cause" and affirmed the court's split custody determination. Id. We reach the same conclusion here.

Finally, Mother argues that the court's order was punitive in nature and intended to punish Mother and the three older children. In Garrett, this Court reminded the parties "that custody rights are not meted with a design to reward one parent or punish the other, that each child custody case must be judged on its own facts, and that parental rights are secondary to determining what will best serve the welfare of the children, which is always our primary concern." Id. at 743 (citations omitted). In Garrett, like this case, this Court is convinced that the trial court's primary concern was the children's best interests. Mother's second point is denied.

Point III

In Mother's third point, she contends the trial court erred in granting her supervised visitation with the three youngest children. Once again, the facts necessary for the disposition of this point have already been presented in connection with our discussion of Point I. Visitation requirements are governed by § 452.400. In relevant part, this statute states that "[a] parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger the child's physical health or impair his or her emotional development." § 452.400.1(1). The public policy of Missouri is for a child to have "frequent, continuing and meaningful contact with both parents after the parents have separated or dissolved their marriage . . . except for cases where the court specifically finds that such contact is not in the best interest of the child." § 452.375.4.

Here, the trial court specifically found that "[t]he best interests of the three youngest children require that they have no contact with [Mother], unless that contact is supervised and restricted." With respect to Mother's supervised visitation, the Court explained that "[g]iven the fact that this Court has absolutely no faith that [Mother] would return the children to [Father] if it granted her visitation rights, the three older children have threatened to kidnap the three younger children and [Mother] has indicated an inability to control the older children's conduct, no unsupervised visitation is set aside to [Mother]." The court stated that, "[p]ursuant to Section 452.400, ESMo., the Court finds that unsupervised visitation with [Mother] would further impair the emotional development, endanger the physical health of the three youngest children and would make the custodial transition set forth herein impossible to accomplish." In Parenting Plan B-1, the court specified that "Mother shall have the right to periods of physical custody of the minor children as the parents may agree is in the best interest of the children." The court further specified:

In the event the parents cannot agree on a specific physical custody schedule, then the physical custody schedule shall be as follows: a. Mother shall have supervised visitation up to 2 hours per week by a person or agency designated by Father, the same to be at Mother's cost, if any.

Mother argues that the trial court erred in restricting her visitation because "there was no evidence suggesting a need for supervised visitation." This Court disagrees. The trial court made a specific finding that it had no confidence Mother would return the three younger children to Father if unsupervised visitation were permitted. In addition, the trial court relied upon evidence presented at trial that the older girls would kidnap the three younger children and keep them from Father, if given the opportunity. The trial court's decision to only permit Mother to have supervised visitation addressed both of these very legitimate concerns. Thus, there is ample support in the record for the trial court's decision. See, e.g., In re G.P.C., 28 S.W.3d 357, 366 (Mo.App. 2000) (where there was evidence that paternal grandmother had threatened to kidnap grandchild, trial court's decision to permit two hours of supervised visitation with grandparents every three months was affirmed). Thus, the trial court did not err in awarding Mother supervised visitation. Id. Mother's third point is denied.

In Mother's point, she also claimed error because "the court did not weigh the parties' disparate incomes and [Mother's] ability to pay the cost of supervised visitation." Be cause Mother presented no argument in her brief to support this allegation of error, it was abandoned. See In re Marriage of Michel, 142 S.W.3d 912, 919 n. 3 (Mo.App. 2004).

In re G.P.C. was overruled on other grounds by Barker v. Barker, 98 S.W.3d 532, 534-35 (Mo. banc 2003).

Point IV

Mother's fourth point posits error in the trial court's determination of how much Mother should pay as child support. At trial, Father introduced evidence that Mother earned $58,118 in 2006. That figure came from Exhibit E, which was Mother's 1099 form from her employer, Saaman. Mother testified that she had earned an additional $8,800 in 2006 from another source. Thus, Mother's gross income for 2006 totaled $66,918 or $5,576 per month. Mother also testified that, as of the date of trial in April 2007, she was earning $3,250 per month plus additional commission income from the sale of real estate. Mother had borrowed approximately $16,000 against her future commission earnings. She estimated that she was earning enough commission income to pay off her debt by the end of 2007. However, Mother also testified that she might be able to have that debt paid off by the fall of 2007. In order to pay off a debt of $16,000 by the end of the year (nine months), Mother had to be earning commission income of approximately $1,777 per month. When added to Mother's base salary, her monthly income in 2007 would be approximately $5,027 per month. In order to pay off a debt of $16,000 by fall (six months), however, Mother had to be earning commission income of approximately $2,666 per month. When added to Mother's base salary, her monthly income in 2007 would be approximately $5,916 per month. The trial court decided that, for the purpose of calculating child support, Mother's monthly income was $5,576 (her 2006 gross income figure). Both parties were ordered to pay child support to the other, with the net result being that Mother owed Father $735 per month.

Mother contends the trial court erred in awarding child support based on her monthly income of $5,576. According to Mother, her testimony established that her 2007 income was no greater than $3,250 per month. Based upon that premise, she argues that the trial court's use of a higher gross monthly income amount lacked evidentiary support and was based upon speculation. This Court disagrees.

We begin by noting that it was up to the trial court to resolve conflicts in the evidence on this issue. "This court does not determine what the trial court could have found; instead, it determines whether the trial court's actual finding is unsupported by substantial evidence or against the weight of the evidence." McCoy v. Scavuzzo, 250 S.W.3d 1, 9 (Mo. App. 2008). "Past, present and anticipated earning capacity may be properly considered in determining the ability of a parent to pay child support." Fulton v. Adams, 924 S.W.2d 548, 554 (Mo.App. 1996); McCoy, 250 S.W.3d at 8. Mother's own testimony showed that she earned a gross amount of $5,576 per month in 2006. Past earnings are indicative of present earning capacity. Pearcy v. Pearcy, 193 S.W.3d 844, 847 (Mo.App. 2006). Therefore, the trial court's use of Mother's 2006 gross earnings to calculate child support was well within the trial court's discretion. Pearcy, 193 S.W.3d at 847. The trial court was entitled to rely on the 2006 figure as predictive of what Mother could currently earn as of the date of trial in April 2007. Fulton, 924 S.W.2d at 554. In addition, Mother's own testimony established that her estimated 2007 salary and commission income would between $5,027 and $5,916 per month. The $5,576 per month figure chosen by the trial court to calculate child support is within this range. It was up to the trial court to decide what part of Mother's testimony about her 2007 earning was credible. Mayben v. Garren, 286 S.W.3d 854, 858 (Mo.App. 2009). At a minimum, however, Mother's assertion on appeal that her 2007 income was no greater than $3,250 per month was flatly contradicted by her own trial testimony in which she gave the court a ballpark estimate that her earnings "would be — monthly — I think between — Oh, about 5,000." The trial court's determination of Mother's earning capacity for the purpose of calculating child support is supported by substantial evidence and is not against the weight of the evidence. Mother's fourth point is denied.

Point V

In Mother's fifth point, she contends the trial court erred in its distribution of the parties' marital property and debts. The marital assets consisted of the parties' home in Kansas City, its contents, the parties' vehicles and their bank accounts. During the course of these proceedings, the parties' home in Kansas City went into foreclosure. At the foreclosure sale, the home was purchased by Mother's employer, Saaman. The proceeds were eventually transferred to the Camden County Circuit Clerk to be held in trust by the court. After paying the expenses associated with the foreclosure, the remaining balance from the foreclosure of the marital home was approximately $48,923. The parties' other marital assets and liabilities were listed in Father's Exhibit A-1, which was admitted in evidence and attached to the judgment. The value of the automobiles, household and personal goods, bank accounts and other items listed in Exhibit A-1 totaled $39,362. Combined with the remaining balance from the home foreclosure, the value of the parties' marital property was $88,285.

Mother did not submit an income and expense statement of her own for the trial court's consideration.

Father and Mother had jointly incurred two debts that totaled $55,200. The debts incurred by Father totaled $4,814 in credit card debt. The debts incurred by Mother totaled $42,005. These were comprised of: (1) credit card debt of $32,019; (2) a tax debt of $9,986; and (3) debts in unspecified amounts to Macy's, Saaman and Mother's parents. Thus, the parties' ascertainable debts totaled $102,019.

In Mother's argument, she attempts to inflate the marital debts allocated to her by including her attorney's fees, the share of Father's attorney's fees she was ordered to pay and the GAL fees she was ordered to pay. These litigation expenses are not properly includable as part of the marital debts to be divided by the trial court. The assessment of attorney's fees is governed by § 452.355 RSMo (2000) and is the subject of Mother's sixth point on appeal. The assessment of GAL fees is governed by § 452.423.5 and is the subject of Mother's seventh point on appeal.

As is evident from the foregoing calculations, the parties' debts exceeded their assets by the amount of $13,734. It was up to the trial court, in the exercise of its sound discretion, to decide how to equitably divide the martial property and debt between Father and Mother. In addition, the court made specific findings that: (1) "[Mother's] conduct while this matter has been pending has placed a substantial financial burden upon [Father] and [the court] has taken the same into consideration of its division of property and allocation of debts"; and (2) "[Mother's] conduct and behavior have alienated the children from their father and this conduct is especially egregious and has been injurious to the children and [Father]."

The trial court awarded Mother marital property totaling $37,597. This was comprised of three automobiles valued at $10,000; household goods in Mother's possession valued at $11,600, and $15,997 from the foreclosure proceeds. Mother was allocated the following debts: (1) her tax debt of $9,986; and (2) her credit card debt of $32,019. Thus, Mother was allocated debts totaling $42,005. The debts allocated to Mother exceeded her assets by $4,408.

The court also ordered Mother to pay her debts to Saaman and her parents. Because the amount of these debts is unknown, there is no information in the record from which this Court can ascertain whether the allocation of these debts to Mother had any material impact on the trial court's distribution of the marital assets and debts.

The trial court awarded Father marital property totaling $50,688. This was comprised of: (1) a motor vehicle valued at $500; (2) personal property valued $17,262; and (3) the $32,926 remaining balance from the foreclosure of the marital home. Father was allocated the following debts: (1) his credit card debt of $4,814; and (2) the parties' $55,200 in joint debt. Thus, Father was allocated debts totaling $60,014. The debts allocated to Father exceeded his assets by $9,326.

Mother contends the trial court abused its discretion in dividing the parties' marital property and debts because the court allocated "virtually all of the marital property to [Father] and virtually all the marital debt to [Mother]." This Court disagrees. The division of marital property is left to the sound discretion of the trial court, and its decision will be upheld unless an abuse of discretion is shown., Colahianchi v. Colabianchi, 646 S.W.2d .61, 64 (Mo. banc 1983); In re Marriage of Michel, 142 S.W.3d 912, 920 (Mo.App. 2004). "Judicial discretion is abused when the trial court's ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration; if reasonable persons can differ about the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion." Anglim v. Missouri Pacific Railroad Co., 832 S.W.2d 298, 303 (Mo. banc 1992).

"The division of marital property need not be equal, but must only be fair and equitable given the circumstances of the case." Nelson v. Nelson, 25 S.W.3d 511, 517 (Mo.App. 2000). In the case at bar, the parties' debts exceeded their assets by about $13,734. Father was allocated approximately 59% of the debt, and Mother was allocated approximately 41% of the debt. While Father received more of the marital assets, that was offset by the greater amount of marital debt allocated to him. We find no abuse of discretion in the trial court's division of the marital assets and debts. Mother's argument that Father got all of the assets and Mother got all of the debt is simply not supported by the record. Mother's fifth point is denied.

Point VI

Mother's sixth point deals with the trial court's assessment of attorney's fees pursuant to § 452.355 RSMo (2000). As of the date of trial, Father had incurred $64,608 in attorney's fees. Mother had incurred $60,800 in attorney's fees. Father requested that Mother be required to pay all of his attorney's fees. The trial court made a specific finding that Mother's conduct during the dissolution action had placed a substantial financial burden upon Father. As the court noted in its judgment, the attorney's fees generated by the litigation "were substantially in excess of what should have been required to bring this matter to conclusion. [Mother] is the primary reason Father's attorney fees and the [GAL] fees are so high." The trial court ordered Mother to pay $25,000 of Father's attorney's fees. Mother contends this ruling was an abuse of discretion because the court failed to consider the parties' financial resources. This Court disagrees.

A trial court is given great discretion in awarding attorney's fees and costs in a dissolution proceeding, and the court's decision should not be overturned unless it amounts to an abuse of discretion. Silcox v. Silcox, 6 S.W.3d 899, 905 (Mo. banc 1999). "The party challenging the award has the burden to prove an abuse of discretion, which will be found only where the decision is so arbitrary as to shock one's sense of justice." Id.; Adair v. Adair, 124 S.W.3d 34, 40 (Mo. App. 2004). With respect to attorney's fees, "Missouri courts generally follow the `American rule,' which provides that each party should bear his or her own litigation expenses." Wansing v. Warning, 277 S.W.3d 760, 770 (Mo.App. 2009). A trial court, however, may order one party to pay the other's attorney's fees and costs where such is authorized by statute. Id. In a dissolution action, § 452.355.1 RSMo (2000) provides that the trial court may award attorney's fees to a party after "considering all relevant factors including the financial resources of both parties, the merits of the case and the actions of the parties during the pendency of the action. . . ." Id. Thus, a party's actions during the pendency of litigation may be considered in determining whether to make an award for attorney's fees, especially when those fees were the result of the other party's improper conduct. See Long v. Long, 135 S.W.3d 538, 545 (Mo.App. 2004) (award of partial attorney's fees to wife was not an abuse of discretion because the trial court believed husband's actions caused the litigation fees and expenses to be higher than normal); Adair, 124 S.W.3d at 40-41 (husband's conduct during the litigation increased wife's attorney's fee expenses); Bauer v. Bauer, 38 S.W.3d 449, 457-58 (Mo.App. 2001) (husband caused the trial to be "unduly protracted"). Moreover, "[i]n awarding attorney's fees, the trial court is considered an expert in the necessity, reasonableness, and value of the legal services." In re Fuldner, 41 S.W.3d 581, 596 (Mo.App. 2001).

In the case at bar, the trial court made a specific finding that Mother's misconduct during the litigation imposed a substantial financial burden upon Father and was the primary reason Father's attorney's fees were so high. Therefore, Mother's assertion that the trial court abused its discretion by not considering Mother's financial condition is misdirected. "The trial court may grant a partial award of attorney fees, even if the parties' financial condition does not otherwise necessitate an award of fees, where misconduct has taken place." Hart v. Hart, 210 S.W.3d 480, 494 (Mo.App. 2007).

It is evident from this Court's review of the record that, just as the trial court found, Mother's conduct during the litigation did place a substantial financial burden upon Father and caused his attorney's fees to be substantially higher than normal. The amount of time, energy and financial resources expended on this dissolution action beggars the imagination. There were eight pretrial hearings over a two-year span that produced 830 pages of transcript before the trial even started. Many of these hearings were necessitated by Mother's failure to comply with the trial court's orders regarding visitation and/or her unwillingness to cooperate with the GAL. Such behavior can constitute misconduct. See, e.g., Miller v. Miller, 184 S.W.3d 174, 186-87 (Mo.App. 2006) (father's misconduct in litigating custody issues, which required large amounts of attorney hours, and in violating a court order was misconduct that supported an award of attorney's fees to wife); Long, 135 S.W.3d at 545; Adair, 124 S.W.3d at 40-41. The trial itself took three days and produced a transcript that was 1165 pages in length. The quantity of litigation in the instant case far exceeded that usually seen in a typical dissolution action. That conclusion is evident from the fact that total attorney's fees incurred in this litigation, just through trial alone, were over $125,000.

The trial court clearly acted within its discretion in determining the extent to which Father's attorney's fees were higher than normal due to Mother's misconduct in unduly protracting this litigation. See Adair, 124 S.W.3d at 41. Mother's misconduct provided an adequate ground for the trial court's partial award of attorney's fees to Father. Id.; see Bauer, 38 S.W.3d at 458. Mother's sixth point is denied.

Point VII

Mother's seventh point deals with the assessment of GAL fees. Based on Mother's allegation that Father had physically abused the children, the GAL was appointed in June 2005. He attended every hearing involving the children, nearly all of which were necessitated by Mother's failure to comply with visitation orders entered by the court. According to the docket and transcripts on appeal, the GAL participated in numerous telephone conferences and attended at least seven hearings prior to trial. By April 2007, the court had issued five temporary visitation orders. During the GAL's investigation, he found no evidence that Father had abused any of the children. Mother failed to keep the GAL advised of the children's residential address, making it difficult to stay in touch with the children. In the judgment, the court made a specific finding that Mother and the children made the GAL's job much more difficult because they "intentionally failed to keep the [GAL] informed because they are mad at him because he has not followed their wishes for no visitation with their father." In addition, the court found that "the children have each made unfounded complaints to the Missouri Bar Association alleging that the [GAL] has failed to perform his duties." The court concluded that "attorney J. Christopher Allen has performed his duties as [GAL] pursuant to the Standards set forth by the Missouri Supreme Court. As [GAL], he must advocate the children's best interest rather than merely seek to follow the children's wishes."

The court reached the same conclusion after considering all of the evidence presented at trial.

The court determined that the GAL fees totaled $18,807. Earlier in the litigation, the parties had paid $4,000 of the GAL fees. The court determined that the GAL fees were reasonable, and Mother was ordered to pay the outstanding balance of $14,807. The court specifically found that Mother's conduct during the litigation was the "primary reason . . . the [GAL] fees were so high." The court then ordered that the balance due be "assessed against [Mother] and the same . . . be deducted from [her] share of the funds held in the registry of this Court" from the parties' home foreclosure proceeds.

Mother contends the trial court abused its discretion in assessing the GAL fees against her "in light of the fact that [Mother], was also ordered to pay attorney fees . . . and received a disproportionate share of the parties' property and debt." This Court disagrees.

By statute, the GAL "shall be awarded a reasonable fee for such services to be set by the court." § 452.423.5. In addition, "[t]he court, in its discretion, may . . . [a]ward such fees as a judgment to be paid by any party to the proceedings "§ 452.423.5(2). "When ordering the payment of guardian ad litem fees, the court may consider the circumstances which necessitated the appointment of the guardian." Lindell v. Coen, 896 S.W.2d 525, 529 (Mo.App. 1995). In Lindell, the court taxed the costs of the proceeding against the mother and ordered her to pay the GAL fees based upon the court's finding that mother's "`unfounded claims of abuse and neglect by [father] caused this Court to appoint' the guardian." Id. We reach the same conclusion here. Not only did Mother make unsubstantiated allegations of child abuse necessitating the GAL's appointment, but she also failed to cooperate with the GAL. That made his job more difficult. As the court specifically found, Mother's conduct was the "primary reason" the GAL fees were so high. "We cannot say that the award is so arbitrary and unreasonable as to constitute a manifest abuse of discretion." Id.; see Clark v. Clark, 101 S.W.3d 323, 331-32 (Mo.App. 2003). Mother's seventh point is denied.

The judgment of the trial court is affirmed.

BARNEY J., and SCOTT, C.J.,.Concur.