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In Re the Marriage of: CLAIRE NOLAND-VANCE and BRENT VANCE, CLAIRE NOLAND-VANCE, Petitioner-Appellant, v. BRENT VANCE, Respondent-Respondent.

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No. SD28699 Opinion Filed: 7/30/10

APPEAL FROM THE CIRCUIT COURT OF CAMDEN COUNTY Honorable Christine H. Hutson, Associate Circuit Judge AFFIRMED In this dissolution action, the trial court determined that the marriage between Claire Noland-Vance (Mother) and Brent Vance (Father) was irretrievably broken and then decided issues relating to child custody, visitation, child support, division of marital property, attorney's fees and guardian ad litem (GAL) fees. In Mother's seven points on appeal, she challenges all of the trial court's decisions on the aforementioned issues other

than the finding that the marriage was irretrievably broken. Finding no merit in any of Mother's allegations of error, we affirm the trial court's judgment. I. Standard of Review In this court-tried case, our review is governed by Rule 84.13(d). In re Marriage of Denton, 169 S.W.3d 604, 606 (Mo. App. 2005).1 This Court must affirm the trial court's judgment unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); In re Marriage of Dolence, 231 S.W.3d 331, 333 (Mo. App. 2007).2 In assessing the sufficiency of the evidence, we examine the evidence and the reasonable inferences derived therefrom in the light most favorable to the judgment. In re McIntire, 33 S.W.3d 565, 568 (Mo. App. 2000). It is not this Court's function to retry the case. Souci v. Souci, 284 S.W.3d 749, 753 (Mo. App. 2009). "This is because credibility of witnesses and the weight to be given their testimony is a matter for the trial court, which is free to believe none, part, or all of the testimony of any witness." In re Marriage of Colley, 984 S.W.2d 163, 166 (Mo. App. 1998). On appeal, we defer to the trial court's credibility determination. Souci, 284 S.W.3d at 753. "An appellate court exercises extreme caution in considering whether a judgment should be set aside on the ground that it is against the weight of the evidence and will do so only upon a firm belief that the judgment was wrong." Simpson v. Strong, 234 S.W.3d 567, 578 (Mo. App. 2007). The phrase "weight of the evidence" means its weight in probative

All references to rules are to Missouri Court Rules (2009). All references to statutes are to RSMo Cum. Supp. (2005) unless otherwise specified. Murphy interpreted the provisions of former Rule 73.01(c). The provisions of that rule were transferred, in essentially the same form, to Rule 84.13(d) effective January 1, 2000. 2
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value, rather than the quantity or amount of evidence. Nix v. Nix, 862 S.W.2d 948, 951 (Mo. App. 1993). The weight of the evidence is not determined by mathematics, but depends on its effect in inducing belief. Id. Because a trial court is vested with considerable discretion in determining custody questions, an appellate court should not overturn the trial court's findings unless they are manifestly erroneous and the child's welfare compels a different result. In re C.N.H., 998 S.W.2d 553, 557 (Mo. App. 1999). "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). This Court presumes the trial court awarded custody in the child's best interests based upon the 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). Greater deference is given to a trial court's decision in matters involving child custody than in any other type of case. In re D.M.S., 96 S.W.3d 167, 171 (Mo. App. 2003); In re Marriage of Berger, 950 S.W.2d 307, 310 (Mo. App. 1997). III. Discussion and Decision

Because of the number of different issues presented by Mother's appeal, the relevant facts will be presented in connection with our discussion of the points on appeal. These facts have been summarized in accordance with the above-described standard of review. Point I Mother and Father married in July 1986 and separated in early June 2005. Mother's petition for dissolution was filed on June 3, 2005. The case was tried on April

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3-5, 2007. Six children were born of the marriage. Their names and ages as of the time of trial were: Elle, 19; Elise, 18; Deanie, 16; James, 14; John, 12; and Diane, 9

(hereinafter referred to collectively as the children and individually by their first names).3 Until the parties' separation, the children lived in the family home in Jackson County, where they were home-schooled. After the separation, Mother moved with the children to her parents' home in Camden County. Mother is a licensed attorney who practiced sporadically during the marriage. As of the time of trial, she was employed as a real estate broker by Saaman KC LLC (Saaman) in Kansas City. This company was owned in part by Rand Setlich, Mother's paramour. Father was generally employed throughout the marriage. At the time of trial, he was working for the CoStar Group in Kansas City. When Mother filed for dissolution, she alleged that Father had abused her and the children. In mid-June 2005, the trial court appointed J. Christopher Allen to represent the children as the GAL. After a hearing in July, the court entered a full order of protection enjoining Father from abusing or threatening to abuse, stalk or disturb Mother. The court also granted Mother temporary custody of the children and ordered Father to pay child support. The court further ordered the parties undergo psychological evaluations and allowed Father to visit the children only through supervised counseling sessions.4 The court ordered the psychological evaluations to be conducted by Dr. Alan Aram (Dr. Aram) and the supervised counseling sessions to take place with Karen Harms (Harms) in

Prior to trial, both Elle and Elise legally changed their surnames from NolandVance to Noland. At the July 2005 hearing, the court also addressed Father's motion to transfer venue of the case to Jackson County where he lived and the children had lived until the separation. Mother opposed the motion, and it was overruled. Later, Mother moved with the children back to Jackson County. This added travel time and other logistical difficulties and expenses to the litigation. 4
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Springfield, Missouri. Mother was ordered by the court to keep the GAL advised of the children's residential address and educational arrangements. In the remaining months of 2005, Father's supervised visitation did not take place. Mother did not fully cooperate with either Harms or Dr. Aram. Mother also did not keep the GAL updated with the children's residential address and educational arrangements. In a January 2006 hearing, Mother took the position that she had not violated any of the court's orders. The trial judge, however, determined that Mother had violated the court's orders. The court again ordered Mother to cooperate with Dr. Aram and the GAL. The court also warned Mother that, if she did not cooperate with a newly selected psychologist in Kansas City to facilitate visitation, the court would transfer the case to juvenile court and have the three youngest children placed into foster care so that Father would have the opportunity to exercise his supervised visitation. Despite the court's warning, no supervised visitation took place in January, February or March 2006. On March 28, 2006, the court held a hearing on Father's motion for visitation and temporary custody.5 By this time, Dr. Aram had completed the court-ordered

psychological evaluations of the parties and was called as a witness by Father's counsel. The following is a summary of his testimony.6

The court also heard Mother's motions to disqualify the judge and the GAL for cause. Both of these motions were ultimately denied. Before Dr. Aram testified about his findings, he expressed concern that Mother would file a disciplinary complaint against him. Dr. Aram expected such a complaint because Mother is "prone to exaggeration of selective memory, is emotionally invested in the case, as would be expected, and has a history of bashing," which he generally defined as "saying negative things ... that, in [his] opinion, were unwarranted" about a person with whom she disagrees.
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Dr. Aram, a clinical psychologist who had been practicing since 1990, regularly performed court-ordered child custody evaluations. Dr. Aram had interviewed Father, Mother, Elle and James. The doctor also reviewed available records, including medical records; performed various diagnostic testing; and interviewed other individuals identified by the parties. Dr. Aram's written evaluation was admitted in evidence at the hearing. With respect to Mother's allegations of abuse, Dr. Aram determined that there had been domestic abuse between Father and Mother. Dr. Aram was able to confirm that Mother had suffered a black eye once as a result of Father's abuse. Father acknowledged that his conduct had been reprehensible, and he obtained marital counseling after the incident. Dr. Aram also identified other isolated incidents of domestic abuse in which Mother had been the aggressor. Dr. Aram found no credible evidence, however, that Father had physically abused the children. Although Mother and the children made such allegations, Dr. Aram noted that the children mentioned the same litany of facts as Mother and used phraseology similar to hers.7 Dr. Aram also observed that Mother overstated or exaggerated facts to support her version of events that purportedly occurred. For example, Mother recounted an incident in which she claimed to have been paralyzed for a number of hours as a result of Father's abuse five or six years earlier. Her medical records for that time period, however, did not mention any such paralysis. Dr. Aram opined that Mother's allegations of child abuse were mistaken, but sincere. As a consequence of Mother's mistaken belief

Dr. Aram questioned the children's allegations in this case because he believed the children had been seriously affected and influenced by Mother's negative statements about Father.

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that abuse had occurred, she sincerely believed Father posed a danger to the children. Dr. Aram opined that Mother would do everything in her power to keep the children from Father "with a near religious zeal." By doing so, Dr. Aram opined that Mother was emotionally abusing the children by alienating their affections for Father. Moreover, Mother's alienating behavior was constant and consistent. While Mother claimed to encourage the children to be loving and respectful toward Father, Mother admitted that she never said anything positive about Father to the children.8 Similarly, neither Elle nor James had anything positive to say about Father, except that James did say that he wished his Father would "change." Dr. Aram concluded that Mother's constant negativity

towards Father, by berating him in front of the children and inciting their fear of him, had caused the children to suffer severe trauma. Relying upon literature in the field, Dr. Aram explained that there were ten indicators of parental alienation. All ten indicators were present in this case. Dr. Aram described this situation as the worst case of parental alienation he had ever seen. As a mandatory reporter of child abuse, Dr. Aram believed he was required to report this form of emotional abuse to the court. Dr. Aram diagnosed Mother as having an adjustment disorder not otherwise specified (NOS) that resulted in the alienation of the children from their father in a highconflict marriage and divorce. The doctor further found maladaptive personality traits based on high levels of defensiveness, dramatic expression of emotions, and "all good or all bad thinking." According to Mother's response to certain testing, she projected an excessively positive self-image. For example, Mother believed she had made no

For example, Dr. Aram testified that Mother told his secretary before her appointment that Father was a "liar." In addition, Mother reported to Dr. Aram that her children believed Father was "the best liar in the world."

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mistakes during the marriage, could have done nothing better and had no weaknesses. Because Mother believed she had done nothing wrong, Dr. Aram opined that she would likely neither seek nor benefit from counseling. Mother's prognosis for changing her alienating behavior was poor. Given Mother's history of a lack of cooperation with court orders, even when faced with the threat of losing the three youngest children to foster care, the doctor admitted he did not know what else would stop Mother from alienating the children from Father. Dr. Aram also testified about his findings concerning Elle, James and Father. With respect to Elle, Dr. Aram found that she had strongly aligned herself with Mother against Father. The parental alienation affecting Elle was so severe that Dr. Aram opined her relationship with Father was likely irreparable.9 With respect to James, on the other hand, Dr. Aram found some indication that the child wanted to reconnect with his father. With respect to Father, Dr. Aram diagnosed him as having an adjustment disorder NOS and a history of unwarranted aggression/temper outbursts toward Mother in a highconflict marriage. The doctor recommended that Father attend individual counseling to help him better learn to control his temper and support him during these "difficult and probably discouraging times to come." Dr. Aram concluded his testimony by opining that the severe parental alienation caused by Mother's behavior made Father's contact with his children problematic. If the amount of contact between Father and children was increased, Dr. Aram feared they would misinterpret Father's actions and perhaps even "scream abuse." Nevertheless, Dr. Aram believed there was some hope for a renewed relationship among Father, James and

For example, Dr. Aram described an incident in which Father had bought Elle a CD as a gift, which she described as "controlling and threatening" behavior by him. 8

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the other two youngest children. Dr. Aram recommended supervised visitation, perhaps with a parent coordinator, to protect Father from false allegations by the children. The doctor also recommended that something be done quickly because further delay supported the parental alienation. After listening to Dr. Aram's testimony, the court noted that this was the fourth motion from Father requesting visitation. The court planned to confer with the Juvenile Officer to appoint someone new to supervise the children's visitation with Father, which the court anticipated would start immediately. Despite the court's efforts, however, virtually no supervised visitation took place during the next 11 months. More hearings on this issue were held in June 2006, August 2006, January 2007 and February 2007. During this time period, Mother was difficult to contact by mail or telephone. She moved approximately 40 times and was represented by five different attorneys. By the time of trial in April 2007, Father had received only 30 minutes of supervised contact with the children since June 2005. In addition, by April 2007 the court had entered five separate temporary visitation orders throughout the course of the case. During discovery, Father served Mother with a written request for admissions. Pursuant to Rule 59.01(a), each of the matters was deemed admitted because Mother failed to respond. Accordingly, Mother admitted that she failed to comply with the trial court's orders requiring Mother to: (1) attend counseling with Harms; (2) attend the evaluation with Dr. Aram; (3) produce certain documents in January 2006; and (4) make herself available to the GAL, Harms, Dr. Aram and others. Mother also admitted that: (1) Father was fit to have custody of the minor children; (2) Mother had shoplifted personal items from a store in 2004; (3) Mother had moved to Camden County without

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intending to reside there; (4) while the children were present in the same residence, Mother had shared a bed with Rand Setlich on one occasion and with Steve Townsend on another occasion; and (5) Mother had physically abused James and called him derogatory names. The trial commenced on April 3, 2007. That day, the judge learned Mother had failed to comply with a local rule requiring her to complete parenting classes prior to trial. Mother's attorney asked the court to waive the requirement. The request was denied, and Mother was required to provide proof before the trial concluded that she had scheduled and paid for the parenting classes. Mother's case-in-chief evidence consisted of the testimony from: Dr. Steven Adelman (Dr. Adelman), an expert witness; Mother; her sister; friends and neighbors; a visitation supervisor; a social worker; a former teacher; and daughters Elle, Elise and Deanie. Father's evidence consisted primarily of his testimony and a number of exhibits. The exhibits included: a letter from the parties' pastor, Tim Buzan (Pastor Buzan), who provided marital counseling to the parties; and several voice mails that Father received from James after he moved with Mother to her parents' home in June 2005. The GAL presented evidence in the form of his own testimony. The court also conducted incamera interviews of James, John and Diane. The following is an overview of the evidence presented relevant to the custody issue. Mother's expert, Dr. Adelman is a clinical psychologist who evaluated James, John and Diane. Dr. Adelman did not believe the children were suffering from parental alienation syndrome because they kept repeating the same story, like children who had witnessed something that really frightened them. Dr. Adelman believed the children had experienced trauma, but he could not identify any specific triggering event. On cross-

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examination, when asked how the court could differentiate between trauma and parental alienation, Dr. Adelman explained that it is "[v]ery difficult, because the symptoms are so similar." Mother produced several witnesses who testified primarily about instances of Father's abusive behavior toward Mother and the fact that she never said anything negative about Father in front of the children.10 None of the witnesses possessed any personal knowledge that Father had ever abused the children. Mother acknowledged that she and the children had moved approximately 40 times, staying with families and moving into homes made available through her paramour. Mother testified that she did so because she feared Father. Mother detailed several instances in which Father abused Mother (including the one incident in which she sustained a black eye) and other instances in which Father abused the children. Elle, Elise and Deanie also described incidents of abuse by Father.11 None of these children had anything positive to say about Father. Each older daughter testified that she had no happy memories of Father, that he had no redeeming qualities at all, and that he was generally a bad or evil person. All three testified that they wanted to protect the younger children from Father and that they

One of the witnesses was Mother's sister, Cynthia Dunbar. She testified that she had never heard Mother speak negatively of Father in front of the children. In a later portion of her testimony, however, Dunbar testified that Elle was in the room with Dunbar and Mother while they were talking about things Father had done wrong so they could make a list. One event discussed in Elle's presence and placed on the list was that Father purportedly had left Elle alone when she was four months old and had not apologized for the incident. With respect to Father's physical abuse of the children: Elle testified Father hit her, twisted her arm and smacked her a lot. Elise testified that Father would hit her, twist her arm, throw her to the ground and pin her up against the wall. Deanie testified that Father grabbed her, squeezed and twisted her arms, pushed her down stairs, pulled her hair and kicked her. All three children testified that Father would do this when they tried to prevent Father from abusing Mother. 11
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would physically take the younger children to keep them away from him. Despite Mother's description of the three older daughters as "obedient," Mother admitted that she could not guarantee they would obey Mother's orders not to kidnap the younger children if custody was awarded to Father. Father testified at length on his own behalf, and most of his testimony starkly contrasted with Mother's evidence. Father did admit that he struck Mother in the fall of 1999 and gave her a black eye. Father testified that the incident followed a "three-day rant" in which Mother denigrated him in front of the children. Father was picking up laundry in a closet when Mother followed him, screaming obscenities at him. Father told Mother to back off, and she spit in his face. Father responded by striking Mother in the face. Father testified that he was so mortified at his actions, he asked Mother for a divorce because he "didn't want to be in a marriage where that [behavior] was even possible." Father also recounted incidents in which Mother was the aggressor in physically abusing Father by biting, slapping, punching, scratching and spitting on him. Father testified that, on one occasion, Mother placed a knife to Father's throat and said, "Have you ever heard of crimes of passion?" During a marital counseling session with Pastor Buzan, Mother admitted that this last-mentioned incident had, indeed, occurred. Pastor Buzan wrote a letter, which was admitted at trial as Exhibit Z, summarizing his experiences with the parties during their counseling sessions. In the letter, the pastor discussed incidents of domestic abuse between the parties: Brent admitted to the "black eye" incident. Claire admitted she regularly verbally berated him and how he didn't "make as much money as he could, emotionally neglected her, and his negative physical looks." The transition to Brent working in town and being home regularly had not gone well. Claire felt Brent didn't help around the house or support her,

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and Brent felt disrespected and that Claire "controlled" every aspect of the kids' lives, down to their names and painting him in an unfavorable light with the children. Prior to my counseling experience with Brent and Claire, there were alleged acts of violence. During the time I was personally involved in counseling, there were no acts of violence or aggression from Brent. There was a session in which Brent had a fat lip and Claire admitted she had hit him. There was a session in which Brent said Claire had threatened him that week with a kitchen knife. Claire said she was kidding but admitted, "maybe I did like the fear it made you feel." Pastor Buzan's letter also stated that Father had remained in the church during the dissolution proceeding and "conducted himself becomingly, choosing to defend himself very little." Father's continued involvement with the church, however, "enrages"

Mother. "She reported that she has `spoken to eight different pastors and they can't believe we haven't dealt with him.' She now concludes that I am `a heretic and the church is in heresy.'"12 The trial court also admitted in evidence an audiotape containing eight voice mails from James, as well as written transcripts of those messages. The voice mails were left by James on Father's telephone between June 1-3, 2005, which was shortly after Mother had moved the children from the family home to her parents' home in Camden County. In the voice mails, James pleaded with Father to come and get him, but to not let the others know that James had called because he would "get in trouble." James also said he loved Father and that John wanted to come home, too. The text of the voice mails are set out below:

The pastor's letter also noted that other parishioners contacted by Mother had expressed concern to Pastor Buzan over Mother's "vitriolic attacks" on Father. In addition, a school administrator who called Pastor Buzan "was alarmed at how [Mother] was talking about [Father] in front of the [three youngest] children." 13

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1. June 1, 7:02 p.m.: "Hey Dad, this is James. I'm at the lake. Please come get me ... and ... when you get here, tell them I didn't tell you to come. Alright. Please come. Bye." 2. June 1, 8:04 p.m.: "Dad, this is James. Please check your voice mail and then come and get me either today or tomorrow and don't call back, don't call back cause I get in trouble Lord, I mean Dad. Please come and get me. Please, Please come and get me. Don't tell them that I told you to come. Please just come and get me today or tomorrow, please ... and John ... he wants to come home too. Bye, Love you." 3. June 1, 8:44 p.m.: "Hey Dad, this is James, I just talked to Elle and she said that you were doing something with Mom tonight ... I don't know what's going on and it's making me confused and eh, I, I don't feel good and there's just something that doesn't feel right ... um ... Just keep your phone on. Bye." 4. June 2, 9:31 a.m.: "Hey Dad, this is James. I was just calling to tell you that Di, last night, had a headache and she was really sick and stuff ... and to tell you to call a couple times today at Nana and Papa's phone or somethin' just to check in cause it looks like I'm gonna have another hard day trying to get the phone and as far as I hear Mom's coming down here tonight. She's gonna sleep here and in the morning she's gonna go and finish up her classes and then I'll see you tomorrow night ... John misses you, we all do ... er ... Well not the girls. Deanie thinks you're an ass. Alright, well I love you." 5. June 2, 10:32 a.m.: "Hey Dad, this is James. I just got off the phone with Mom and she said that she's not gonna be able to come tonight but she ... [sigh] I guess I'll see you tomorrow night. Love you, Bye. No need to call back, until tonight. OK ... Bye." 6. June 2, 8:02 p.m.: "Hey Dad, this is James. We just got back from miniature golf. Um ... I was calling to pray with you, but I guess I can talk to you tomorrow. Um, goodnight, love you, love Mom. Bye." 7. June 3, 8:52 a.m.: "Hey Dad, this is James. We're staying here tonight. Please come and get me! Please come and get me! Thanks, Bye. Please, Please, Please come and get me!" 8. June 3, 11:34 a.m.: [crying] "Dad, this is James! You gotta come and get me! Please come and get me! Nana's filing some charges so you can't, so please just hurry! Get this voice mail! Please!"

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After Father rested, the three youngest children were interviewed under oath and on the record. During James' interview, he denied that he had really wanted to see Father as stated in the above-referenced voice mails. According to James, he just wanted "to get back home to all my things and friends." James also said he was "not physically able" to visit Father because James could not "stand the memories coming back." James had nothing positive to say about Father. Neither did John or Diane, who both referred to Father as "Brent." After the three younger children were interviewed, they were escorted to the judge's chambers where they stayed with a juvenile officer. The GAL was the last to testify and make his recommendation to the court. As a result of the GAL's investigation, he concluded that the children have been severely traumatized by parental alienation syndrome and not by any physical abuse from Father. The GAL based this conclusion on his experience with the children, Dr. Aram's report and Pastor Buzan's letter. With respect to Pastor Buzan in particular, the GAL noted that the parties had confided in Buzan as their pastor. Father and Mother had disclosed instances of domestic violence between themselves, but there were no accusations of child abuse by Father. The GAL also opined that this case tracked exactly with what one would expect to see with parental alienation syndrome, particularly the "objectification of the spouse as all bad." As the GAL explained: [T]he insistence upon the negative aspects of the spouse's character and behavior coupled with the inability to see existing or even potential positive traits of the spouse are manifestations of an alienating attitude. Such a client appears to objectify this spouse as an evil thing, no longer a person with at least a few redeeming qualities. There is a loss of ambivalence, which characterizes healthy human relationships. Indeed such objectification of the spouse as all bad should be taken as a sign of significant disorder in a client himself.

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To preserve any relationship with Father, the GAL recommended that a split custody arrangement be adopted by the court. The GAL asked the court to transfer custody of the three younger children to Father and order custody of the three older children to remain with Mother. Because of abduction threats made by the older children, the GAL also recommended that Mother only have supervised visitation of the three younger children. At the conclusion of the trial, the court orally announced its decision on custody. The court determined that it was in the best interest of James, John and Diane to be immediately placed in Father's custody. A temporary order of custody and visitation was put in place. In July 2007, the court entered its judgment. In assessing the credibility of the witnesses, the court considered "their sincerity and character, as well as the history of events and actions of parties throughout the course of the entire case." With respect to Mother's allegation that she had been abused by Father, the court found that each party had committed domestic violence upon the other spouse. The court also found, however, that Mother's description of the abuse committed by Father had been exaggerated by Mother, the children and Mother's other witnesses. With respect to Mother's allegation that the children had been abused by Father, the court did "not find credible the testimony that [Father] has physically abused the children." The court further explained that

"[b]ecause of [Mother's] alienation of the children's affections towards [Father], the Court gives little weight to what the children have stated to the [GAL], third parties and the Court during in camera testimony." With respect to custody, the court decided that Elle was emancipated. Mother was awarded sole legal and physical custody of Elise and Deanie. Father was awarded sole legal and physical custody of James, John and Diane. The court made the factual

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findings required by

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