author: CLIFFORD H. AHRENS, Judge.

text:
    Aaron G. ROUTT, Respondent, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Appellant.
    No. ED 86176.
    Missouri Court of Appeals, Eastern District, Division One.
    Jan. 3, 2006.

      Jeremiah W. (Jay) Nixon, Atty. Gen., Jefferson City, MO, for appellant.
    Robert S. Adler, St. Louis, MO, for respondent.
   CLIFFORD H. AHRENS, Judge.

The Director of Revenue, State of Missouri (“Director”) appeals the judgment of the circuit court reinstating the driving privileges of Aaron G. Routt (“Routt”). Director argues that the court erred in reinstating Routt’s driving privileges because there was sufficient evidence to establish that the arresting officer had reasonable grounds to believe Routt was driving while intoxicated. We reverse and • remand.

Routt’s license was revoked pursuant to section 577.041 RSMo (Cum Supp.2003) for refusal to submit to a breath test. Routt filed a petition for review of the revocation. A commissioner entered findings and recommendations, finding that the arresting officer did not have probable cause to arrest Routt. The commissioner noted that there was insufficient evidence of “driving or operating” by Routt. The court adopted the findings and recommendations of the commissioner, and entered a judgment reinstating Routt’s driving privileges. Director now appeals.

The judgment of the trial court will be affirmed unless it is against the weight of the evidence, it is not supported by the evidence, or it erroneously declares or applies the law. Saladino v. Director of Revenue, 88 S.W.3d 64, 68 (Mo.App.2002) (citations omitted).

In its sole point on appeal, Director argues that the arresting officer had reasonable grounds to believe Routt was driving while intoxicated, and the court’s judgment finding otherwise was against the weight of the evidence.

'A trial court reviewing the revocation of a driver’s license pursuant to section 577.041 must determine whether the individual was arrested, whether the officer had reasonable grounds to believe the individual was driving while intoxicated, and whether the individual refused to submit to a breath test. Saladino, 88 S.W.3d at 68. Reasonable grounds and probable cause are essentially synonymous terms. Id. at 70. (citation omitted). Probable cause exists when an arresting officer ‘“possesses facts which would justify a person of reasonable caution to believe that an offense has been or is being committed and that the individual to be arrested committed it.’” Id.; (quoting Wilcox v. Director of Revenue, 842 S.W.2d 240, 242 (Mo.App.1992) (internal citations omitted)). The determination of whether probable cause existed is made from the point of view of a prudent, cautious and trained officer at the time of arrest. Id.

In the present case, no transcript was made, and therefore, as Director notes, it appears as though the matter was submitted for review upon the Department of Revenue records submitted as an exhibit to Director’s answer to the petition for review. These records included the alcohol influence report, and the arresting officer’s narrative report, among other documents. The first page of the officer’s narrative report was not included in the exhibit to Director’s answer; however, regardless of this omission, there was sufficient competent evidence to support a finding that the officer had reasonable grounds to believe Routt was driving while intoxicated.

Based upon these documents, there was sufficient evidence to show that Routt was arrested. There was also sufficient evidence to support reasonable grounds for the officer to believe Routt was intoxicated. The alcohol influence report indicated that the odor of alcoholic beverage on Routt’s breath was strong. It also reflects the officer’s observation that Routt had watery, bloodshot, and glassy eyes. Routt’s balance, walking, and turning were noted as “swaying,” and the officer noted that Routt’s speech was slurred. In the narrative report, the officer stated that Routt swayed when he left the side of the vehicle and swayed when he turned to face the officer. The officer also recorded his observation of slurred speech and the strong odor of intoxicating beverage coming from Routt in the narrative report. “Similar facts in other cases have been found to provide an officer with reasonable grounds for believing that an individual had been driving while intoxicated.” Norris v. Director of Revenue, 156 S.W.3d 786, 788 (Mo.App.2005); (citing See Rain v. Dir. of Revenue, 46 S.W.3d 584, 588-89 (Mo.App.2001) (finding that driver’s glassy and bloodshot eyes, unsteadiness on his feet, slurred speech, and difficulty concentrating were sufficient indicia of intoxication to provide reasonable grounds for the officer to believe that the driver was driving while intoxicated).). There was also sufficient evidence that Routt refused the breath test, based upon the documents provided by Director.

In the present case, the court apparently based its reinstatement of Routt’s driving privileges upon the finding that there was insufficient evidence of Routt’s driving or operation of a motor vehicle.

It is not necessary for Director to prove that Routt was driving. Saladino, 88 S.W.3d at 70. Instead, Director must only prove that the arresting officer had probable cause to believe that Routt was driving. Id.; (citing See Hinnah v. Director of Revenue, 77 S.W.3d 616, 621-22 (Mo. banc 2002)).

Although the first page of the narrative report is missing from the documents provided in Director’s answer, there is still sufficient evidence to establish that the officer had reasonable grounds to believe Routt was driving or operating a motor vehicle. The first page of the alcohol influence report contains a statement that the “arrested stopped person was observed driving by,” the arresting officer. Additionally, in his narrative report, the arresting officer noted that he talked to Routt about the complaint about Routt’s “erratic driving.” Based upon the record before us, this evidence was not contradicted. Where the disputed issue is not a matter of direct contradiction by different witnesses, we do not have to defer to the findings of the trial court. Callanan v. Director of Revenue, 163 S.W.3d 509, 513 (Mo.App.2005) (citing Hopkins-Barken v. Director of Revenue, 55 S.W.3d 882, 885 (Mo.App.2001)). We may not disregard uneontroverted evidence in support of Director’s contention that the required elements for revocation were proved. Id.

As a result of the uncontroverted evidence that complaints were made concerning Routt’s erratic driving and the evidence contained in the alcohol influence report that the arresting officer observed Routt driving, the trial court’s finding that there was insufficient evidence of Routt’s driving or operation of a motor vehicle was. against the weight of the evidence. The arresting officer had probable cause to believe Routt was driving while intoxicated, and therefore, the Director established a prima facie case for revocation of Routt’s driving privileges.

We note that in his brief, Routt states that he and another witness were present at the hearing and prepared to testify that Routt was not driving while intoxicated. Routt also contends that the court “determined [his] testimony would be unnecessary....” At oral argument, counsel for Routt represented to the court that he left the courtroom to attend to another matter, and during his absence, an order was entered reinstating Routt’s driving privileges. Where the trial court directs a verdict, or enters a judgment pursuant to Missouri Supreme Court Rule 73.01(b), it is appropriate for our court to remand the cause to allow the defendant the opportunity to present evidence to rebut the Director’s prima facie case. Hamor v. Director of Revenue, 153 S.W.3d 869 (Mo.App.2004). However, in the present case, the underlying procedural facts are unclear based upon the record before us. Given the uncertainty as to Routt’s opportunity to present evidence at the hearing, we remand the cause to the trial court to allow Routt the opportunity to present evidence to rebut the Director’s prima facie case.

The judgment of the trial court is reversed and remanded for further proceedings in accordance with this opinion.

MARY K. HOFF, P.J., and PATRICIA L. COHEN, J., concur.

      . No transcript was made of the proceedings on Routt's petition for review; thus, it appears as though no testimony was adduced from Routt or any other witness to contradict the evidence.

      . Rule 73.01(b) provides that in cases tried without a jury, "[a]fter the plaintiff has completed presentation of plaintiff's evidence, the defendant may move by motion for a judgment on the grounds that upon the facts and the law the plaintiff is not entitled to relief. The filing of such motion does not constitute a waiver of defendant’s right to offer evidence.”


source: Caselaw Access Project

author: SHERRI B. SULLIVAN, J.

license: Public Domain

text:
    Mary HUFFMASTER, Employee/Respondent, v. AMERICAN RECREATION PRODUCTS, Employer/Appellant, and Travelers Casualty & Surety Company, Insurer/Appellant.
    No. ED 86409.
    Missouri Court of Appeals, Eastern District, Division Four.
    Jan. 3, 2006.

      Mary Anne Lindsey, Robert Edward Bidstrup — co-counsel, St. Louis, MO, for appellant.
    Scott Evan Schonbrun, Clayton, MO, for respondent.
   SHERRI B. SULLIVAN, J.

Introduction

American Recreation Products (Employer) and Travelers Casualty & Surety Company (Insurer) (collectively Appellants) appeal from the Temporary or Partial Award issued by the Labor and Industrial Relations Commission (Commission) awarding temporary total disability benefits to Mary Huffmaster (Employee). We affirm.

Factual and Procedural Background

Employee filed a Claim For Compensation (Claim) against Employer, asserting that Employee broke both her wrists when she tripped and fell on Employer’s parking lot as she was leaving work. Employer filed an Answer denying all allegations contained in the Claim. The Administrative Law Judge (ALJ) held a hearing on the Claim, at which the parties stipulated that the issues for resolution were: whether Employee sustained an accident arising out of and in the course of her employment; medical causation; liability for future medical treatment; and liability for future temporary total disability benefits.

After the hearing, the ALJ issued his Temporary or Partial Award, finding that Employee’s injuries arose out of and in the course of her employment and granting Employee past temporary total disability benefits from the date of injury to the date of hearing, for a total of $8,205.20 in past temporary total disability, as well as future temporary total disability, until such time as Employee reached maximum medical improvement. The ALJ also ordered Employer to pay Employee’s past medical expenses and to provide for Employee any future medical treatment necessary for the injuries she sustained in the accident.

In his Award, the ALJ made the following findings of fact:

1. [Employee], on July 14, 2004, while leaving work at approximately 4:00 PM, walked out the side door of the building which her Employer is a tenant and fell as she walked across the parking lot to her car.
2. [Employee] fell on her hands causing a fracture of her left and right wrists. [Employee]’s Employer was a tenant of the building and surrounding the building was a parking lot where [Employee] would park.
3. [Employee] normally worked from 7:00 AM to 4:00 PM.
4. After [Employee] fell on the ground fellow employees of her Employer helped her and her Employer call an ambulance and took [Employee] to Barnes Jewish Hospital.
5. As a result of the fall [Employee] was operated on by Dr. Martin Boyer who did surgery on the right wrist which had been fractured and also operated on the left wrist which had also sustained a fracture.
6. [Employee] is still off work and under the care of Dr. Boyer and [Employee] has not gone back to work as of the date of the hearing.

Employer filed an Application for Review with the Commission. The Commission issued a Temporary or Partial Award (Affirming Award and Decision of the ALJ with Correction), noting that the case was reviewed concerning the issue of liability only. Having reviewed the evidence and considered the whole record concerning the issue of liability, the Commission found that the Award of the ALJ was supported by competent and substantial evidence and was made in accordance with the Workers’ Compensation Act. This appeal follows.

Points Relied On

In their first point, Appellants maintain that the Commission erred in finding that Employee’s fall arose out of and in the course of her employment, because when Employee fell she had completed her work for the day and was on her way to her car to go home, and she did not show that her fall was caused by the condition of Employer’s premises or her employment.

In their second and third points, which can be combined for review, Appellants argue that the Commission erred in awarding Employee past temporary total disability benefits and medical expenses, because the parties did not stipulate that Employee’s entitlement to these things were issues for the ALJ’s resolution at the hearing; and Employee failed to show a sufficient factual basis for an award of past medical expenses and competent and substantial evidence thereof.

Standard of Review

Judicial review of the Commission’s award is to determine whether the award is supported by competent and substantial evidence upon the whole record. Ming v. General Motors Corp., 130 S.W.3d 665, 667 (Mo.App. E.D.2004). We shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other: (1) That the commission acted without or in excess of its powers; (2) That the award was procured by fraud; (3) That the facts found by the commission do not support the award; (4) That there was not sufficient competent evidence in the record to warrant the making of the award. Id., citing Section 287.495.1. The factual findings of the Commission are conclusive and binding on us absent fraud. Ming, 130 S.W.3d at 667. The Commission’s interpretations of law, however, are reviewed for correctness without deference to the Commission’s judgment. Id. We review these decisions independently, and, if we disagree with the Commission, then we may reverse because of the error of law. Id.

Discussion

The issue of whether an employee’s injury arises out of and in the course of employment must be decided on a case by case basis. Otte v. Langley’s Lawn Care, 66 S.W.3d 64, 70 (Mo.App. E.D.2001). Each case must turn upon the point of whether, under its particular circumstances, the injury arose from something that had become an incident of the employment. Hilton v. Pizza Hut, 892 S.W.2d 625, 631 (Mo.App. W.D.1994).

Appellants maintain that Employee had completed her shift as she was walking through the parking lot to her car when she fell, and therefore she was not working any more. Injuries sustained by an employee while traveling to or from work are usually not compensable under the Workers’ Compensation Act. Blades v. Commercial Transport, Inc., 30 S.W.3d 827, 829 (Mo.banc 2000). However, Missouri courts have long recognized an exception to the going to and coming from work rule, whereby injuries incurred while going or coming from work are compensa-ble if they happen either on the employer’s actual premises or “extended premises.” Roberts v. Parker-Banks Chevrolet, 58 S.W.3d 66, 69 (Mo.App. E.D.2001). We find that the parking lot where Employee fell was Employer’s extended premises. Employee had parked on this lot with Employer’s express permission. Employer had designated parking spots on the lot for its upper management employees. The lot surrounds the building where Employee and her co-workers work and is used by Employer’s employees to talk, eat lunch, and smoke. As such, we determine that Employee’s injuries, which occurred on this lot, are compensable.

Furthermore, Employee had been in-gressing and egressing on that lot for 10 years while employed by Employer. In such a case, traveling through the parking lot from her parked car to work and back again after work had become an incident of Employee’s employment.

Appellants maintain that there has to be a hazard on the extended premises causing the accidental injury in order for the injury to be compensable. Although Appellants cite cases where such happened to be the circumstance, they fail to cite cases where it is an actual requirement.

Appellants cite Abel By and Through Abel v. Mike Russell’s Standard Serv., 924 S.W.2d 502, 504 (Mo.1996), a 3-3 decision (Holstein, C.J., not sitting), where the Court found that the employee’s injuries were not compensable because he had become dizzy and fallen on the paved, level ground of the employer, and thus nothing in the course of his employment had caused him to fall: “Here, Abel fell while standing on paved, level ground. Although his injuries occurred in the course of his employment, nothing about this condition of his workplace enhanced the effects of gravity or made the conditions of his workplace any different from or any more dangerous than those a member of the general public could expect to confront in a non-work setting.” Appellants maintain that since Employee cannot point to any defect in the ground where she fell, she too, should not receive any compensation under Abel. We disagree. The employee in Abel had become dizzy and fell while standing in a single spot because of that dizziness. This employee’s fall could have happened anywhere. Employee, however, tripped and fell while walking from her place of employment through the parking lot to her car. Furthermore, Employee did not testify she was dizzy. As such, Abel is not analogous to the instant case, as Appellants maintain.

In the same vein, Appellants assert that Missouri courts have rejected the “positional risk doctrine,” under which an accident becomes compensable on a mere showing that it would not have happened but for the fact that the conditions or obligations of the employment put a claimant in the position where he was injured. McCall v. McCall Amusement, Inc., 748 S.W.2d 827, 832 (Mo.App. S.D.1988). In other words, it is not sufficient that the employment may simply have furnished an occasion for an injury from some unconnected source. Id. Again, this was what the majority found the situation to be in Abel. In the case sub judice, Appellants have not demonstrated that Employee’s fall was wholly unconnected with her walking on the parking lot to her car, or that Employee would have fallen when she did no matter where she might have been walking that day.

The Workers’ Compensation Law also does not cover accidents caused by conditions entirely idiopathic in nature. DeVille v. Hiland Dairy Co., 157 S.W.3d 284, 288 (Mo.App. S.D.2005). Idiopathic conditions are those “peculiar to the individual: innate.” Id. Evidentiary support is required to successfully claim an event is entirely idiopathic, i.e., the event results from some cause personal to the individual, such as a physical defect or disease. Id. Here, Employer presented no such evidence.

For the foregoing reasons, Point I is denied.

Appellants argue in their remaining two points that the Commission erred in awarding Employee past temporary total disability benefits and medical expenses, because the parties did not stipulate that Employee’s entitlement to these things were issues for the ALJ’s resolution at the hearing; and Employee failed to show a sufficient factual basis for an award of past medical expenses and competent and substantial evidence thereof.

The issue of past temporary total disability benefits and past medical expenses is not an issue of law as it relates to liability or compensability of this claim. Furthermore, this is an appeal from a temporary award, not a final judgment. Employee filed a Hardship Petition to attempt to get treatment for her injuries, because Employer refused medical treatment. Appellants will be able to dispute permanent partial disability in the full hearing as well as all medical bills because treatment continued after the hardship hearing.

Appellants also argue that the Commission erred in awarding Employee past medical expenses as a matter of law because Employee’s accident was not work-related and thus not compensable. We addressed and rejected this argument in our discussion of Appellant’s first point. Appellants finally argue that Employee did not demonstrate a sufficient factual basis for an award of compensation for medical bills, in that she did not provide itemized invoices from certain providers, and failed to submit complete medical records from those providers.

Again, we note that this was a hearing on a Hardship Petition, and the Commission issued a temporary award. Appellants’ argument is thus premature. Further, we only review issues of law and Appellants are here arguing an issue of fact.

For all of the aforementioned reasons, Points II and III are denied.

The Award of the Commission is affirmed.

NANNETTE A. BAKER, P.J., and ROBERT G. DOWD, JR., J., concur.

      . The Commission made one correction to the ALJ’s Ruling of Law No. 2 regarding temporary total disability. As corrected, Ruling of Law No. 2 read as follows: “2. Employer/insurer is to pay employee temporary total disability benefits from the date of the injury until the date of the hearing and into the future pursuant to Section 287.170 R.S.Mo.” With that correction, the Commission affirmed and adopted the Award of the ALJ.

      . All statutory references are to RSMo 2000, unless otherwise indicated.

      . Appellants cite Bock v. Broadway Ford Truck Sales, 55 S.W.3d 427, 436 (Mo.App. E.D.2001) and Boyer v. National Express, 49 S.W.3d 700, 701 (Mo.App. E.D.2001), in support of their argument, but both of these cases address permanent disability awards.


author: PER CURIAM.

text:
    STATE of Missouri, Respondent v. Andre L. DAVIS, Appellant.
    No. WD 64219.
    Missouri Court of Appeals, Western District.
    Jan. 3, 2006.
    Nancy A. McKerrow, Columbia, MO, for appellant.
    Shaun J. Mackelprang, Jefferson City, for respondent.
    Before SMITH, C.J., LOWENSTEIN and ELLIS, JJ.
   ORDER

PER CURIAM.

Davis was found guilty by jury verdict of forcible rape, Section 566.030, RSMo 2000; forcible sodomy, Section 566.060; kidnapping, Section 565.110; unlawful use of a weapon, Section 571.030.1(4); and three counts of armed criminal action, Section 571.015. Davis brings two points on appeal. First, Davis appeals the denial of his motion to suppress, arguing that the trial court erred in allowing the State to introduce DNA evidence. Davis claims that the evidence was secured by an unlawful search and seizure, violating his rights under the Fourth Amendment and Missouri Constitution. Second, Davis argues that the evidence was insufficient to support his conviction for kidnapping and that the trial court erred in overruling his motion for judgment of acquittal and in accepting the guilty verdict of the jury. Affirmed. Rule 30.25(b).


text:
    Lisa SULLIVAN, f/k/a Miner, Appellant, v. Timothy D. MINER, Respondent.
    No. ED 86056.
    Missouri Court of Appeals, Eastern District, Division One.
    Jan. 3, 2006.

      Michael F. Avioli, St. Louis, MO, for appellant.
    Robert J. Lenze, St. Louis, MO, for respondent.
    Before MARY K. HOFF, P.J., CLIFFORD H. AHRENS, J., and PATRICIA L. COHEN, J.
   PER CURIAM.

Timothy D. Miner (“father”) appeals the trial court’s judgment granting the nunc pro tunc motion of Lisa Sullivan, Wa Miner (“mother”) and ordering him to pay child support in the amount of $1,065 per month. Father claims the trial court erroneously applied the law when it substantively altered the terms of the original dissolution judgment with its nunc pro tunc judgment and order. We reverse.

Father and mother were divorced on August 21, 2000. The judgment of dissolution ordered father to pay child support in the amount of $745.00 per month to mother for their two minor children. The judgment was a form, which provided boxes to be checked to indicate the terms of the judgment. With respect to the child support provisions, a box was checked indicating that a Form 14 presumed child support amount calculation worksheet was filed. The description next to this box cited a “presumed child support amount” from the worksheet of $745.00. A box next to the statement, “[cjourt finds that the Form 14 amount, after consideration of all relevant factors, is unjust or inappropriate,” was also marked.

Mother filed a nunc pro tunc motion in September of 2004, approximately four years after the judgment of dissolution. She alleged that the Form 14 referred to in the dissolution contained mathematical errors in the calculation of child support. Specifically, she noted that the lines providing for a basic child support amount and for total additional child rearing costs were improperly added together to arrive at the total of $1,521.00. These amounts should have totaled $2,020.00, resulting in the calculation of a presumed child support amount of $1,065.00 per month, instead of the $745.00 contained in the Form Í4 and recited in the court’s judgment. Mother asked the court to correct the error and order father to pay $1,065.00 per month in child support. She also asked that this change be retroactively applied to the date of the original dissolution. The trial court granted mother’s motion, finding that its judgment contained a clerical mistake. The court noted that the court ordered child support contained in the judgment was miscalculated because of a mathematical error. The court corrected the judgment per Missouri Supreme Court Rule 74.06(a) to reflect an award of child support in the amount of $1,065.00. The court also awarded mother $16,000.00 for retroactive support, dating back to the original dissolution.

Father filed a motion to set aside and vacate the judgment and order of the court. Mother filed a motion to amend the nunc pro tunc judgment based upon certain errors made therein. Mother also sought clarification as to any potential interest accrued on the retroactive child support amount. The court entered its order and judgment denying father’s motion, and granting mother’s motion in part. The court corrected the portions of the order and judgment which recited incorrect dates, amounts, and other typographical errors contained therein. The court declined to assess interest on the retroactive amount of child support because the error was through no fault of father. Father now appeals.

Initially we note that mother requests that we dismiss father’s appeal for failure to comply with the requirements of Missouri Supreme Court Rule 84.04 and for failure to provide us with the proper record on appeal. Specifically, mother argues that father fails to concisely state the legal reasons for his claim, and does not explain why those legal reasons support his claim of error, as required by Rule 84.04(d)(1)(B) and (C). We disagree. Father’s point asserts error in the trial court’s entry of a nunc pro tunc order, and he properly sets forth the legal bases for his claim, and he explains why they support his claim of error. Additionally, father has provided us with a proper record from which to review his claims. Although we have not been provided with transcripts of the original dissolution proceeding, nor of the hearing on mother’s motion nunc pro tunc, these transcripts are not necessary for our review of father’s claim.

In his first point on appeal, father claims the trial court erroneously applied the law in substantively modifying the original dissolution judgment with a nunc pro tunc order and judgment.

Rule 74.06(a) states, in relevant part, that:

Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders.

A court may correct its records through the issuance of a nunc pro tunc order so the records reflect the true judgment of the court. Eckhoff v. Eckhoff, 71 S.W.3d 619, 623 (Mo.App.2002); (citing Pirtle v. Cook, 956 S.W.2d 235, 240-44 (Mo. banc 1997)). This power is limited only to the ability of the court to make the record conform to the judgment already rendered. Id. It cannot change the judgment itself. Id. The purpose of a nunc pro tunc order is to “correct some error or inadvertence in the recording of that which was actually done, but which, because of that error or omission was not properly recorded[.]” Id.

To determine whether a modification of the judgment occurred, or whether the court’s order was a nunc pro tunc order, we must decide whether the order changes the original judgment or merely changes the record. Eckhoff, 71 S.W.3d at 623; (citing Pirtle, 956 S.W.2d at 240). The Supreme Court in Pirtle, stated that:

The party seeking to show that an order is an order nunc pro tunc must show that the original judgment entry did not accurately reflect the court’s actual judgment and that the subsequent order merely caused the record to conform to the true judicial determination of the parties’ rights. 956 S.W.2d at 243 (internal citations omitted).

A nunc pro tunc order cannot correct anything resulting from the exercise of judicial discretion because this would result in a change in the court’s judgment. Eckhoff, 71 S.W.3d at 624; (citing Pirtle, 956 S.W.2d at 243). Additionally, the clerical error must be discernible from the record. Id.

Mother argues that this court was faced with a similar issue in Intravia v. Intravia, 85 S.W.3d 733 (Mo.App.2002). In Intra-via, a father sought a nunc pro tunc order from the court to amend a judgment of modification of child support. The judgment recited an award of child support of $407.00 per month, per child for the two minor children. Father sought amendment to reflect the court’s judgment of a child support award in the total amount of $407.00 per month. The trial court denied father’s motion for a nunc pro tunc order. The trial court in Intravia, calculated child support pursuant to a Form 14. Id. The Form 14 contained a presumed child support amount of $407.00 a month, and did not refer to $407.00 per child per month. Id. Based upon the trial court’s reliance on the Form 14 calculation, this court found that the court’s judgment awarding $407.00 per month per child for child support was inconsistent with Form 14, and therefore, the judgment contained a clerical error. Id. We reversed the trial court’s denial of father’s motion, and remanded the cause with instructions to the trial court to enter a judgment reflecting the corrected judgment of a total of $407.00 in child support per month. Id. at 737.

The facts of Intravia are distinguishable from those in the present case. Here, the trial court’s judgment of dissolution ordered father to pay $745.00 per month in child support. This amount was consistent with the presumed child support from the Form 14 filed by mother with the court. However, in the present case this amount was improperly calculated based upon a mathematical error in the addition of certain lines on Form 14. The underlying Form 14 in Intravia did not contain such a mathematical error.

The court’s correction of this mathematical error resulted in a substantive change to the original judgment. It did not merely correct the record. Instead, it modified the original judgment. The court is vested with considerable discretion in matters concerning child support. Abbott v. Perez, 140 S.W.3d 283, 293 (Mo.App.2004) (citation omitted). The court awarded mother $745.00 per month in child support. The court’s award of child support was the result of the exercise of its discretion, regardless of any potential mathematical error. This amount cannot properly be corrected by a nunc pro tunc order because it constitutes a change to the original judgment. Eckhoff, 71 S.W.3d at 624; (citing Pirtle, 956 S.W.2d at 243). As a result, the trial court erred in modifying the original dissolution judgment and the child support award therein by its nunc pro tunc order.

In his second and final point, father claims that a modification of the original judgment was erroneously entered without consideration of the relevant factors and in applying the judgment retroactively to the date of the original dissolution, in violation of section 452.370.

Because our review of father’s first point is dispositive, it is not necessary to reach this issue on appeal.

The judgment of the trial court is reversed.


author: PHILLIP R. GARRISON, Judge.

text:
    In re the MARRIAGE OF Bobby Dale CANADY and Barbara Sue Canady. Bobby Dale Canady, Petitioner-Appellant, v. Barbara Sue Canady, Respondent-Respondent.
    No. 26766.
    Missouri Court of Appeals, Southern District, Division Two.
    Jan. 10, 2006.

      Stephen R. Southard, Cape Girardeau, for Appellant.

      Jeffrey P. Dix, Jackson, for Respondent.
   PHILLIP R. GARRISON, Judge.

Bobby Dale Canady (“Husband”) appeals from a judgment dissolving his six-year marriage to Barbara Sue Canady (“Wife”), contending the trial court erred in ordering the sale of the marital residence (“the home”), which was awarded to him, in sixty days if he had not, by that time, paid wife the amount the trial court determined was one-half of the marital interest in the property. He argues that the sale would not be in the best interests of the parties, that the value placed on the home by the trial court was not supported by the evidence, and that the evidence supporting the value of the home at dissolution was barred by the best evidence rule. We affirm in part and reverse in part.

Husband and Wife were married on February 5, 1998, and separated on or about October 10, 2003. There were no children born to the marriage. Husband filed a petition for dissolution of marriage, and Wife thereafter filed an answer and cross-petition. The case was tried on November 4, 2004, and the trial court entered judgment ordering the marriage dissolved; setting aside to each party their separate non-marital property; separating the marital and non-marital debts; and awarding the home to Husband with Wife to receive $27,500, half of what the trial court determined was the value of the marital interest in the home. In doing so, the trial court determined that the home had a value of $5,000 at the time of the marriage and $60,000 at the time of the dissolution. Husband was ordered to pay Wife the $27,500 within sixty days of the date of the judgment, and if Husband was unable to do so, the property was ordered to be sold with Wife receiving the first $27,500, and Husband receiving any amounts thereafter. Husband now appeals.

Husband raises five points on this appeal. However, as Points III and IV are dispositive we need not address his remaining claims. In Points III and IV, Husband argues, inter alia, that the trial court did not have sufficient evidence to find that the home was worth $5,000 at the time of the marriage, or that it was worth $60,000 at the time of dissolution, and therefore the trial court’s division of the marital equity in the home was in error. We agree.

We will not reverse a dissolution decree unless it lacks competent and substantial evidence or erroneously declares or applies the law. Farley v. Farley, 51 S.W.3d 159, 162-63 (Mo.App. S.D.2001). Substantial evidence is competent evidence which if believed by the trial court would have been probative of the issues. Windy Point Partners, LLC. v. Boone County, Mo., ex rel. Boone County Comm’n, 100 S.W.3d 821, 825 (Mo.App. W.D.2003). In reviewing a dissolution decree “we accept as true the evidence and inferences therefrom that are favorable to the trial court’s judgment and we disregard all contrary evidence.” Farley, 51 S.W.3d at 163. In doing so, we defer to the trial court’s determinations as to the credibility of the witnesses. In re Marriage of Heirigs, 34 S.W.3d 835, 841 (Mo.App. S.D.2000).

At the outset we note that there is no dispute that the home is Husband’s separate property as it was purchased and paid for in full by him in either 1987 or 1988, some ten years prior to the marriage. Likewise, both parties agree that the home appreciated in value after the marriage due to renovations. While Husband argues that Wife has not carried her burden to prove that marital assets or labor contributed to this increase in value, the record shows substantial evidence that the funding for the improvements to the home came from Wife’s grandmother, and that Wife did contribute at least some amount of labor to the remodeling effort. See Brooks v. Brooks, 911 S.W.2d 631, 633-34 (Mo.App. E.D.1995). Therefore, the critical issue on this appeal is whether the trial court’s determinations as to the value of the home, both at the time of the marriage and at dissolution, was supported by the evidence.

First we consider whether there was competent and substantial evidence presented to the trial court to support its finding that the home was worth $5,000 at the time of marriage. Husband argues that the only evidence of the home’s value was his testimony that it was worth $20,000 when the two were married. In order to calculate the extent to which an increase in the value of separate property constitutes marital property, it is necessary, among other things, to establish the value of said property at the time of the marriage. Brooks, 911 S.W.2d at 633. An owner is generally competent to testify as to his or her opinion of the fair market value of real estate. Davis v. Davis, 107 S.W.3d 425, 430 (Mo.App. E.D.2003). However, in this case it appears that the trial court overlooked Husband’s testimony on the subject, as it stated in its decree:

[Husband] paid $5,000[] for this house and lot. [Husband] presented no evidence as to the value at the time of the marriage and therefore the Court must find that the value was $5,000[]. (emphasis added).

Husband rightly argues that there must be “evidence from which a fair and accurate valuation of the marital property can be made” before the trial court can accurately divide the property. See Frame v. Frame, 696 S.W.2d 332, 336 (Mo.App. W.D.1985).

The record shows that the trial court’s determination that the home was worth $5,000 at the time of the marriage was clearly based upon Husband’s testimony that he paid between $5,000 and $7,000 for the house and lot. Although there was some testimony as to the dilapidated condition of the home at the time of the marriage, nothing in the way of actual value was presented. Furthermore, as stated above it is clear that the trial court overlooked Husband’s testimony that he believed the home to be worth about $20,000 at the time of the marriage. Generally, where a court’s valuation of marital property falls into a range established at trial, an appellate court will not disturb that valuation given because it is clearly supported by the evidence. Wofford v. Wofford, 991 S.W.2d 194, 200 (Mo.App. W.D.1999). However, here the trial court never considered that there was a “range,” and as such can not be credited for having determined that the value fell within it. Therefore, the trial court’s judgment that the home was worth $5,000, and its finding that Husband presented no other evidence of its value at the time of the marriage, is not supported by the evidence.

Next we consider whether there was sufficient evidence to support the trial court’s valuation of the home at $60,000 at the time of dissolution. The only evidence in the record of that value was Wife’s testimony that the home was covered by a $60,000 insurance policy. Husband argues that this testimony does not necessarily establish the fair market value of the home. The fair market value of property is that price a willing buyer, under no compulsion to buy, would pay a willing seller in exchange for the property. Sharaga v. Auto Owners Mut. Ins. Co., 831 S.W.2d 248, 253 (Mo.App. W.D.1992). The amount of insurance coverage, while perhaps relevant, does not in and of itself establish the fair market value of the home at the time of dissolution. As Husband points out, insurance coverage could encompass, among other things, replacement and repair costs, which do nothing, alone, to shed light on what, a potential buyer would pay for the home.

Generally speaking Wife’s testimony as to her opinion of the value of the home would be competent evidence. See Davis, 107 S.W.3d at 430. However, the record clearly shows that Wife was not testifying as to her opinion of the fair market value of the home. The trial court characterized the only portion of Wife’s testimony pertaining to the value of the home at dissolution as: “[t]he question was, what did you insure the [home] for[?] The answer was, 60,000 [sic].”

The only other evidence of the home’s value at dissolution was Husband’s testimony that he believed the home was worth $38,000 at dissolution. There was also evidence that, at least at some point, Wife believed the value of the home at dissolution was $38,000. Even if the evidence about the $60,000 value was not barred by the best evidence rule, as Husband argued and which we do not decide, there were values ranging from $38,000 to $60,000 in evidence and the trial court determined that $60,000 was the fair market value of the home at dissolution. As stated above, generally this would be enough to support the trial court’s ruling. However, in this case the record reveals that the value the trial court chose to assign to the home, $60,000, was derived from the amount of insurance coverage, which as stated above, is not in and of itself competent evidence of the home’s fair market value.

There was simply a lack of competent and substantial evidence for the trial court’s determinations of value both at the time of the marriage and at dissolution. Accordingly, we are constrained to reverse the trial court’s judgment as it relates to the distribution of the property, and remand for further proceedings not inconsistent with this opinion. The judgment is otherwise affirmed.

BATES, C.J., and SHRUM, P.J., concur.

      . We also note that there is some question as to whether the purchase price of real estate acquired in 1988 would be competent evidence of its value in 1998. Cf Held v. Held, 896 S.W.2d 709, 711 (Mo.App. E.D.1995) ("We find instructive the principle from condemnation cases that the purchase price of real estate, if not too remote in time, is competent evidence of the fair market value.") (emphasis added).

      . The insurance policy itself was not admitted as evidence.


author: JOHN E. PARRISH, Judge.

text:
    Gary W. RUSHING and Dixie Rushing, Plaintiffs-Appellants, v. CITY OF SPRINGFIELD, Defendant-Respondent.
    No. 26776.
    Missouri Court of Appeals, Southern District, Division One.
    Jan. 10, 2006.

      Richard D. Grites, L.L.C., Springfield, MO, for appellant.
    John W. Housley, Lowther Johnson, L.L.C., Springfield, MO, for respondent.
   JOHN E. PARRISH, Judge.

Gary W. Rushing and Dixie Rushing (collectively referred to as plaintiffs) appeal a judgment for the City of Springfield, Missouri, (defendant) in a case plaintiffs brought seeking damages resulting from suspension of disability pension benefits to Gary Rushing by the board of trustees of the Policeman’s and Fireman’s Retirement Fund. Gary Rushing had been injured in the course of his employment as a fireman for the City of Springfield. He had received disability benefits since November 1992. His disability benefits were suspended in January 1997 for failure to submit to re-examination to determine if he continued to qualify for disability benefits. The benefits were reinstated in July 2003 following re-examination of Gary Rushing that occurred in April 2003. For the reasons that follow, the appeal is dismissed.

Rule 84.04(a) states what an appellant’s brief must contain. The requirements include that appellants’ briefs have statements of facts and points relied on.

Rule 84.04(c) explains, “The statement of facts shall be a fair and concise statement of the facts relevant to the questions presented for determination without argument. ...” (Emphasis added.) Rule 84.04(d)(1) states requirements for points relied on in cases in which review is sought of a decision of a trial court. It provides that each point shall:

(A) identify the trial court ruling or action that the appellant challenges;
(B) state concisely the legal reasons for the appellant’s claim of reversible error; and
(C) explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error.
The point shall be in substantially the following form: “The trial court erred in [identify the challenged ruling or action], because [state the legal reasons for the claim of reversible error], in that [explain why the legal reasons, in the context of the case, support the claim of reversible error].”

Further, “[w]hen ... appellants collapse disparate contentions of error into a single point relied on, they violate Rule 84.04(d).” Cooper v. Bluff City Mobile Home Sales, Inc., 78 S.W.3d 157, 167 (Mo.App.2002). Such points are multifarious and preserve nothing for appellate review. In re D.L.W., 133 S.W.3d 582, 584 (Mo.App.2004).

Defendant asserts in its respondent’s brief that plaintiffs’ statement of facts state numerous matters in an argumentative form. Defendant also argues that neither of plaintiffs’ points complies with Rule 84.04; that they are “virtually impossible to respond to.” Those complaints are well-founded.

Plaintiffs’ statement of facts is some 37 pages in length. It is a rambling narration. It includes descriptions of injuries Gary Rushing sustained as a fireman that occurred before the disabling injury that resulted in his receiving disability benefits. Those events were not germane to requirements for re-examination.

Plaintiffs’ narration of “facts” includes discussions of circumstances that led to his conviction of a criminal offense during the time he has received disability benefits. It includes arguments about interpretations of city ordinances; arguments not relative to facts found by the trial court. Of the 37 pages of “facts” only the last three pages relate to actual findings and conclusions of the trial court.

As in Kleinhammer v. Kleinhammer, 225 S.W.2d 377, 378 (Mo.App.1949), “a mere reading of the statement of facts in [plaintiffs’] brief discloses that [plaintiffs have] ignored the evidence presented on behalf of [defendant].” Plaintiffs’ statement of facts is not “a fair and concise statement of the facts relevant to the questions presented for determination without argument.” Rule 84.04(c). See also, Vodicka v. Upjohn Co., 869 S.W.2d 258, 260 (Mo.App.1994).

The deficiencies in plaintiffs’ statement of facts are not limited to going beyond facts relevant to the questions presented. The statement of facts includes numerous word selection errors. (“City’s ordinances that are relevant to this appear are found in....”) (“A regular pension board meeting is held ... and there was no mention were discussion....”) (“The letter also ring wasted a copy....”) (“That meeting however attorney Yendes didn’t advise me Board that....”) (“Yendes advised payment should be and until such hearing is held.”) (“If you would like to bring a position to toe facility to examine ....”) (“Further, he admitted that the pension board, ‘could have chosen some position in Texas or some position in the Pacific, Missouri area to evaluate....’”) (Emphasis added.)

Plaintiffs’ statement of facts does not comply with Rule 84.04(c). As explained by Geiler v. Boyer, 483 S.W.2d 773 (Mo.App.1972); quoting, Wipfler v. Basler, 250 S.W.2d 982, 984 (Mo.1952), “The prevision of Civil Rule 84.04(c), V.A.M.R., that: ‘The statement of facts shall be a fair and concise statement of the facts relevant to the questions presented for determination without argument’ is intended to ‘afford an immediate, accurate, complete and unbiased understanding of the facts of the case.’ ” Geiler, 483 S.W.2d at 774. Plaintiffs’ statement of facts fails to do this.

“The failure of an appellant to comply with the requirements for a sufficient statement of facts, alone, constitutes ground for dismissal of an appeal.” Devoy v. Devoy, 502 S.W.2d 428, 430 (Mo.App.1973). In this case, however, it is not just the statement of facts that is egregious.

Plaintiffs’ brief states two “points relied on.” Neither complies with requirements of Rule 84.04(d). They identify the trial court ruling they challenge. Points I and II claim the trial court erred in awarding judgment for defendant. Point I, however, does not concisely state the legal reasons plaintiffs contend were the bases for the asserted trial court error. Point I covers two and one-half pages. It consists of 45 typewritten lines. As defendant observes, it has four components — four allegations of incidents of error that do not relate to a single issue that are included in a single point relied on. Interspersed within Point I are attempts to state legal reasons, in the context of the case, that plaintiffs contend support the claims of error. They are not stated in summary fashion. They do not lend themselves to ascertainment of what claimed error they support. Point I contains multifarious claims. It violates Rule 84.04(d). In re D.L.W., 133 S.W.3d 582, 584 (Mo.App.2004). A point that asserts multifarious claims preserves nothing for review. Id.; Stelts v. Stelts, 126 S.W.3d 499, 504 (Mo.App.2004); Bydalek v. Brines, 29 S.W.3d 848, 857 (Mo.App.2000); Lamar Advertising of Missouri, Inc. v. McDonald, 19 S.W.3d 743, 745 (Mo.App.2000).

Point II suffers from the same shortcomings as Point I. It covers two and one-half pages — 47 typewritten lines. It contains multiple disparate claims of error that do not relate to a single issue. As with Point I, Point II intersperses bases for the claim of error throughout two and one-half pages of text. Point IPs claims are multifarious. Point II does not state legal bases for claimed error in a summary fashion. Point II preserves nothing for review.

The rules of appellate practice in hand are simple and plain. They fill no office of mere red tape, or as a show of surface routine. To the contrary, they have substance, and carry on their face the obvious purpose to aid appellate courts in getting at the right of a cause. Hence, apparently, they bespeak the dignity arising from obedience. If they are not to be obeyed, they should be done away with once and for all. A just rule, fairly interpreted and enforced, wrongs no man. Ostensibly enforced, but not, it necessarily wrongs some men viz., those who labor to obey it — the very ones it should not injure.

Sullivan v. Holbrook, 211 Mo. 99, 109 S.W. 668, 670 (1908). See also State v. White, 529 S.W.2d 22, 24-25 (Mo.App.1975); Cope v. McClain, 529 S.W.2d 6, 7 (Mo.App.1975).

Plaintiffs’ appeal is dismissed for failure to comply with Rule 84.04(c) and (d).

BATES, C.J., and MAUS, Special Judge, concur.

RAHMEYER, J., recused.


author: SHARON G. LEE, J.,

text:
    Brett W. WOODROOF v. Nathan E. FISHER, et al.
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    Feb. 15, 2005 Session.
    March 28, 2005.

    Permission to Appeal Denied by Supreme Court Oct. 3, 2005.
    Thomas F. Bloom, Nashville, Tennessee, for the Appellant, Brett W. Woodroof.
    Mark D. Harris, Kingsport, Tennessee, and Phillip Larry Boyd, Rogersville, Tennessee, for the Appellee, Nathan E. Fisher.
    Paul R. Wohlford, Bristol, Tennessee, for Intervening Petitioners, Robert R. Barnett and Carolyn Kay Barnett.
    Polly A. Peterson, Johnson City, Tennessee, guardian ad litem for Taylor Leigh Fisher.
   OPINION

SHARON G. LEE, J.,

delivered the opinion of the court, in which

HERSCHEL P. FRANKS, P.J. and CHARLES D. SUSANO, JR., J., joined.

This appeal involves a dispute between the biological father, Brett W. Woodroof, who filed a petition to establish paternity of the nine year old child, Taylor Leigh Fisher, and the stepfather, Nathan E. Fisher, with whom the child has lived since she was two years old. The trial court determined that Mr. Woodroof was the natural father and awarded him visitation rights, but did not award him custody. A review of the record indicates that Mr. Woodroof asked for custody initially in his petition to determine parentage, but subsequently withdrew his request in his amended petition, and repeatedly advised the court throughout the lengthy court proceedings that spanned sixteen months that he sought only visitation with the child, and not custody. Mr. Woodroof requested custody only at the end of the trial process, after the testimony of the medical experts and other persons had been presented, and after numerous assertions in court that he was not presently seeking custody. We hold that his request for custody came too late and therefore we affirm the judgment of the trial court and remand for further action consistent with this opinion.

I. Factual and Procedural Background

Brett W. Woodroof initiated this cause of action on July 9,1999 by filing a petition to establish parentage of Taylor Leigh Fisher (hereinafter “Taylor” or “Child”), born February 17, 1996. According to the petition, Mr. Woodroof and the child’s mother, Kimberly Barnett Fisher (“Mother”), met and dated in the mid-1980’s. Mr. Woodroof joined the military and after his two years of service, he and Kimberly Fisher renewed their friendship. At that time, Kimberly Fisher was married to Nathan Fisher, but she told Mr. Woodroof that she and her husband were essentially separated and she had been dating someone else for a substantial period of time. Mr. Woodroof and Kimberly Fisher’s relationship continued and during Memorial Day weekend in 1995, they engaged in unprotected sexual intercourse. Taylor Leigh Fisher was born approximately nine months later. Mr. Woodroof was not told of her birth until September or October of 1996 when in a telephone conversation, Mother told him she had given birth to a baby girl but she gave him an incorrect date for the birth of the child. Mr. Woo-droof and Mother continued their relationship and spent the New Year’s weekend together in 1997. Mr. Woodroof first saw Child in February of 1997 and was struck by Child’s strong physical resemblance to himself. In the meantime, Mother and Nathan Fisher divorced in April of 1997 and Mother was awarded custody of Child subject .to Nathan Fisher’s visitation rights. Mother sent Mr. Woodroof a picture of Child in December of 1997, and again he noticed a “strong physical resemblance” between Taylor and himself. Thereafter, in 1998, Mother and Mr. Woo-droof continued their telephone relationship and on several occasions, he confronted her about Child’s parentage and she denied that he was Child’s father.

On August 26, 1998, Mother committed suicide. Mr. Woodroof was a pallbearer at the funeral. While at the funeral home, Mr. Woodroof saw Child and became convinced that he was the father. After a short transition period when Child was apparently staying primarily with her maternal grandparents, she came to live with Mr. Fisher and his new wife, Tonya Fisher, in October of 1998. Taylor has continually lived with the Fishers since that time.

As noted above, Mr. Woodroof filed a petition to establish paternity of Taylor on July 9,1999, requesting as follows:

[T]he Plaintiff demands that the Court order the proper parties to undergo genetic testing pursuant to T.C.A. § 24-7-112; that upon a conclusive finding from such testing, the Court enter an Order declaring the Plaintiff to be the natural father of the child, Taylor Leigh Fisher; that the Plaintiff, upon such findings and Order be granted physical custody of the child and all rights, privileges and responsibilities of a natural father; that the child’s name be changed to Taylor Leigh Woodroof, and that the Plaintiff be granted such other, further and general relief which the Court finds appropriate.

On August 21, 2001, the trial court entered an order appointing a guardian ad litem to represent the best interests of the Child. On August 22, 2001, the maternal grandparents, Robert R. Barnett and Carolyn Kay Barnett (“Grandparents”), tiled a petition to intervene requesting custody of Taylor.

On April 15, 2002, Mr. Woodroof filed a motion to amend his petition to establish parentage, stating in relevant part as follows:

For grounds in support of this Motion to Amend, the Plaintiff would show that his experts, Dr. Bernet and Dr. Lanthorn, have advised Plaintiff that it would not be appropriate for him to have full physical custody of Taylor Leigh Fisher at this time, and that he should only be granted visitation rights with said child at this time ... Because of the opinions of Dr. Bernet and Dr. Lanthorn, Plaintiff seeks to amend his prayer for relief in his Complaint to Establish Parentage which was filed on July 9, 1999 in order to seek appropriate parental access with Taylor Leigh Fisher, including only visitation rights with the child at this time and custody of the child in the future. [emphasis added]

Two sets of hearings took place before the trial court. The first began on August 14, 2002, and continued on August 15, 2002, October 9, 2002, and December 11, 2002. Among the witnesses to testify were two psychiatrists, a clinical psychologist and a psychotherapist, all of whom had evaluated the Child. Although the experts were not in complete accord regarding their diagnoses, they all agreed that the Child suffers from very serious emotional and psychological problems. Evidence was presented that she has been diagnosed with Type I bipolar disorder by at least three psychiatrists.

The record contains a large amount of testimony regarding Taylor’s behavioral symptoms, all of which need not be detailed in this opinion; but an example is provided by Dr. John Burke Robertson, Jr., Taylor’s treating psychiatrist, who described what happened when she started kindergarten:

A: She’s had her ups and downs. She initially regressed severely with the beginning of school. It’s kind of — the situation was such that she had maximal support and nobody was kind of bothering things, and then all of a sudden we put her into another environment that she was expected to perform at a level of another kindergartner, and she just couldn’t do it, and she decompensated horribly at that time.
Q: Just let me stop you a second.
A: Sure.
Q: Could you explain to the Court, and to us, what decompensation is and what it means?
A: Sure. For Taylor’s case, or anybody’s case.
Q: Right.
A: Decompensation basically means a worsening of the psychiatric symptoms of behavioral disturbances, emotional symptoms that a person would have. And we usually reserve the word decom-pensate, meaning that it’s pretty severe, as opposed to they had a small setback, or there was a slight worsening of symptoms. Decompensate usually means things have gone back to a severe state, maybe back to baseline, or even worse than baseline, before they were on medication.
Q: And then after the decompensation, how would you characterize her psychotic condition?
A: Well, are you talking about during the decompensation?
Q: Yes, sir.
A: I mean, we — yeah. I mean, she blacked — during that time, she blacked teachers’ eyes, smearing feces, scratching herself, pulling her hair out, biting herself, and biting peers. And, you know, of course they just could not manage her. I mean, the school system had to get involved, and they pulled her out. And we tried some home schooling, and we tried some things with medication, and she continued to do very poorly during that time, and eventually was psychiatrieally hospitalized in November [of 2001].

On September 18, 2002, the Grandparents filed a “proposal for contact” between the Child and Mr. Woodroof, stating that “[t]his proposal has been generated by, and approved by the counselor, Laura Arnfield ... and essentially tracks her recommendations.” On September 20, 2002, Mr. Fisher filed a proposal for contact with Mr. Woodroof, which concurred in and adopted the Grandparents’ proposal.

The trial court entered an order on February 21, 2003, establishing parentage and setting forth a visitation schedule for Mr. Woodroof. Based on DNA test results, the trial court declared Mr. Woodroof to be the biological father and established a schedule of gradually increasing visitation as follows in relevant part:

[T]he Plaintiff shall be granted visitation with Taylor Leigh Fisher in accordance with the Proposal for Contact submitted to this court by the [Grandparents], which ... was generated by and approved by Laura Arnfield, Taylor Leigh Fisher’s therapist ... however, paragraph 2 of said Proposal for Contact is hereby modified so that Taylor Leigh Fisher will not start to be advised of the existence of Plaintiff until at least thirty (30) days after the birth of Nathan and Tonya Fisher’s upcoming child, whatever date that is, with the timing to be in the sole discretion of Laura Arnfield. During the interim period between now and the time that Taylor Leigh Fisher is introduced to Plaintiff as her biological father, the Plaintiff and Nathan and Tonya Fisher shall meet with Laura Arnfield and start the process of learning how to handle things, how to discuss things, and how to be on the same page, so to speak, with regard to Plaintiffs introduction to and upcoming visitations with Taylor Leigh Fisher, and,
IT IS FURTHER ORDERED, that the Plaintiffs contact schedule based on said Proposal for Contact (as modified) at this time shall be as follows:
(a) That there will be no change of custody from the Defendant [sic], Nathan Fisher.
(b) That the introduction of the Plaintiff to the minor child as her biological father shall not start until at least thirty (30) days after the birth of Nathan and Tonya Fisher’s upcoming child with the timing to be in the sole discretion of Laura Arnfield;
(c) That Laura Arnfield, and ... Nathan Fisher, and his wife, Tonya Fisher, shall agree upon the presentation of the existence of the Plaintiff to the minor child.
(d) That there shall be a minimum of a six (6) week period of assessment and evaluation between each step of this proposal to determine how the minor child is adapting to each step.
(e) That step two shall be a time where the Plaintiff sends pictures, letters, telephone calls, e-mails, etc., to the minor child. During this time there will be a meeting with the Plaintiff and [Mr. Fisher] together to help the adults involved to be able to present a more unified front for the minor child.
(f)That step three shall be a short supervised visitation at the office of Laura Arnfield, lasting 1-2 hours on a weekly basis, or as determined by Ms. Arnfield. Before this step could occur, the Plaintiff would have to have met with his therapist, and the therapist and Ms. Arnfield would have communicated to insure continuity. This visitation would not take place at school, because the minor child needs to be able to function in school at a much higher level before any additional stress is added.
(g) That step four shall be longer weekly visits up to 4 hours still supervised by someone with whom the minor child is comfortable. This could occur at the babysitters’ home or at the Defendant’s home, with a family friend available. In addition, there should be a weekly phone call from the Plaintiff to the minor child.
(h) That step five shall be a short 2-4 hour unsupervised visit with the Plaintiff taking the minor child to places she is comfortable and familiar within the TriCity, Tennessee, area.
(i) That step six shall be longer, unsupervised visits, 4^6 hours, still at places familiar to the minor child. During these visits, a meal would be shared between the Plaintiff and the minor child.
(j) That step seven shall be to go to 6-8 hour long visitations -with two meals, occurring still in the Tri-City area.
(k) That steps two through four shall occur on a weekly basis for six weeks each. The six weeks will be consecutive not cumulative.
(l) That the Plaintiff; the Defendant, Nathan Fisher, and his wife, Tonya Fisher; the [Grandparents]; the minor child’s school; the minor child’s babysitter; the minor child; and Dr. Robertson will provide communication to Ms. Arn-field on the minor child and her progress. It is important that Ms. Arnfield assess the minor child’s functioning to see if a move to the next level of visitation is possible, or whether the minor child has regressed and a move needs to be made backwards to a previous step.
(n) That if severe regression or de-compensation occurs, steps four through six should occur on a three week basis with step seven to go to a once a month status in addition to moving backward to the previous step.
(o) That Ms. Arnfield shall have sole discretion, as between the parties, in determining whether the minor child can move to the next proposed step, or whether there should be regression in the steps by reason of her level of functioning.
(p) That Dr. Robertson will be informed of every step and the reaction thereto; he will also monitor the minor child’s situation as a treating physician. He alone shall have medical decision-making in this case.
IT IS FURTHER ORDERED, that all parties shall follow Ms. Arnfield’s recommendations, and if a party disagrees with Ms. Arnfield’s recommendations, then a petition should be filed before this court, and this court will consider any of the concerns of any party in that regard.

The trial court named Nathan and Tonya Fisher as the residential parents of the Child. The court reserved several issues in the case, including method of payment of child support, Mr. Woodroofs request for a downward deviation of child support, and attorney fees and court costs.

This already difficult case became even more complicated when Mr. Fisher accepted new employment in March of 2003, requiring the Fisher family to move to Columbus, Ohio. Mr. Fisher apparently stayed in an apartment in Columbus until the end of Taylor’s school year, when the family relocated. Laura Arnfield, Taylor’s therapist, testified that due to the pending move, she proposed speeding up the process of telling Taylor about her biological father, which was done. Taylor learned of Mr. Woodroofs existence on or about April 18, 2008.

On April 29, 2003, Mr. Woodroof filed a petition in opposition to the move, requesting a restraining order prohibiting Mr. Fisher from removing Taylor from Kings-port. The petition further requested that Mr. Woodroof “be declared as having legal custody of his daughter,” and as follows:

That this Court’s order of visitation in the state of Tennessee by the plaintiff be accelerated and that upon conclusion of the visitation schedule, that the Court review the issue as to whether or not the plaintiff should be declared the primary residential parent of his daughter and allow him to take her to his home in Nashville, Tennessee under whatever safeguards for her care, upbringing and necessary treatment the Court deems necessary. [Emphasis added]

On June 30, 2003, apparently shortly before the move to Columbus, a single face-to-face meeting took place between Mr. Woodroof and Taylor, with Ms. Arn-field present.

On July 30, 2003, Mr. Woodroof filed a motion requesting “that the court amend its Order of Parentage entered in this cause on February 21, 2003, to authorize Plaintiffs experts to reevaluate Taylor Leigh Fisher within the next 12 months for purpose of determining when it would be appropriate for Plaintiff to be awarded sole custody of his child.”

On December 8 and 9, 2003, a hearing was held on Mr. Woodroofs motions and on the remaining issues that had been reserved in the court’s prior order. In its memorandum opinion delivered at close of proof and incorporated into its final judgment, the trial court found that the relocation to Columbus was for a reasonable purpose, did not pose a risk of serious harm to the Child, and was not done with vindictive motive. The court dismissed Mr. Woodroofs motion to have Taylor reevaluated by his experts as “prematurely filed,” stating:

I find that based on Ms. Arnfield’s testimony that the motion is not in the best interest of the child and is probably harmful to the child. I find it is counterproductive to the relationship between the parties necessary to allow a reasonable environment that would assist Taylor in developing the trust of the Plaintiff required to progress to a meaningful time-sharing arrangement ... Now, by this ruling I’m not saying that there will not be an appropriate time in the future based upon the relationship developing and the trust developing between the biological father and this child that this motion might be appropriate, but based on the record I have today I find it is premature and I’ve said it is dismissed.

Mr. Woodroof appeals, raising the sole issue of whether the trial court erred in failing to grant him custody of his biological child. Mr. Fisher, the Grandparents and the guardian ad litem have filed separate briefs, each arguing that the judgment of the trial court should be affirmed.

II. Standard of Review

In this non-jury case, our review is de novo upon the record of the proceedings below; but the record comes to us with a presumption of correctness as to the trial court’s factual determinations which we must honor unless the evidence preponderates against those findings. Tenn. R.App. P. 13(d); Wright v. City of Knoxville, 898 S.W.2d 177, 181 (Tenn.1995); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn.1993). The trial court’s conclusions of law, however, are accorded no such presumption. Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn.1996); Presley v. Bennett, 860 S.W.2d 857, 859 (Tenn.1993).

III. Analysis

In determining whether the issue of custody was properly before the trial court, a review of the statements made to the court by counsel for the parties is helpful. We begin by noting that Mr. Woodroofs amended petition specifically requested “only visitation rights with the child at this time and custody of the child in the future.” At the beginning of the hearing, on the first day, counsel for Mr. Fisher stated to the court, without contradiction, “this isn’t a custody case.” The same day, Mr. Woodroofs own attorney asserted to the court, “custody’s not even an issue right now. We’re talking about the limited visitation period with the child.” Mr. Woo-droof himself testified as follows:

Q: Okay. Please explain to the Court what parental access you’re seeking at this time with regard to Taylor Leigh Fisher.
A: I am requesting a graduated visitation that is being recommended by a professional that I’ve asked to look into this matter.

On October 9, 2002, the third day of the hearing, near the end of the day’s testimony and after the medical psychiatric testimony had been heard, Mr. Woodroofs counsel reiterated that “this isn’t a custody case at this point. We’re asking for visitation.” The trial court stated that “as I understand it, we’re just dealing with time-sharing and not with custody.”

On December 11, 2002, after the close of proof as regards the initial set of hearings on the petition to establish paternity, Mr. Woodroofs counsel made the following statements to the trial court during closing argument:

I think in terms of the — the main issue in this case is deciding whether Plaintiff should have parental access to Taylor in the form of visitation rights at this time. The secondary issue would be the economic support that my client should be required to pay for Taylor.
[Under the Ray v. Ray case [83 S.W.3d 726, (Tenn.Ct.App.2001) ], you know, he cannot be denied access to this child unless there’s substantial harm. And I think the experts have agreed that there would be substantial harm to the child if custody were transferred. And I think that’s something I think all the experts agree. But we’re not talking about transferring custody here. We’re talking about -visitation. I think all the experts agree that Taylor should know about her biological father. [Emphasis added]

During the December 8, 2003 hearing, the following exchange took place between the attorneys and the court:

THE COURT: There’s not actually a present motion right now to alter the current order of parentage that we have and the provisions of that other than maybe modifying the — I guess, the information of the process or how Taylor’s going to be informed of things. So I guess we can assume for today that, you know, the custody is not going to be awarded because it’s not been asked for at this time.
MR. HARRIS: [attorney for Mr. Fisher]: Your Honor, just a second. I just want to make sure we get in the record, because their motion, petition in opposition to removal, does ask that he be declared as having legal custody of his daughter. So if they’re not asking for that, we need to make sure that’s in the record — that that part of that motion is withdrawn.
THE COURT: I assumed this was a prayer to accelerate the process so that he could — so that the biological father could take the child to Nashville. I guess, I’m assuming from reading that and under the present state of the record then, the recommendations that he’s not meaning permanently. I thought for time-sharing purposes ...
MR. HARRIS: I just want to make sure, because in my reading of number 2, that’s the way I read it. And that’s the way everybody read it.
THE COURT: Mr. Chiles, are you all going to be presenting an expert that says — on that issue?
MR. CHILES [attorney for Mr. Woo-droof]: Your Honor, no, sir.
THE COURT: Because I don’t have a report from one, if you were. So you’re not?
MR. CHILES: What this motion was— had to do with the objections of the removal to the state of Ohio.
THE COURT: Right. But you’re not earnestly going to contend — if you’re not going to have an expert in here, you’re earnestly under the state of this record — from day one, you’re not going to contend that and ask me to change physical custody to the biological father at this time, are you?
MR. CHILES: No, sir.

The next day, December 9, 2003, Mr. Woodroofs counsel stated the following to the trial court:

MR. CHILES: If Your Honor please, yesterday when I was presenting the petition in opposition to the Fishers’ removal of the child, there was some confusion on my part, if Your Honor please, and I did not have a chance to consult with my client with regard to the issue of his requesting the Court to award him custody — legal custody of his daughter. And he would like to be able to just briefly state his request to the Court, knowing Your Honor’s position on the thing on the case, and then we’ll — that’ll be the end of that. But I — we’d like to be able to put him on the stand for that purpose, if Your Honor please.
THE COURT: I think when Ms. Arn-fleld was on the stand, I requested that myself to be sure there was a clear understanding so that we could elicit her opinion based on that position. So I don’t — I don’t accept the proposition that there was a misunderstanding. There might have been a change of mind last night, but I think it was perfectly clear, and it’s just a changing of the mind. So I don’t accept your proposition. I think it was absolutely clear. It was asked once if not three times to be sure. So I don’t see how it could be a mistake.
MR. CHILES: Well, if Your Honor please, I believe he did testify that when they read this paragraph in the petition that that was his position. He takes the position that—
THE COURT: You spoke for him as counsel when the question was specifically asked, and see what — and then Ms. Arnfield testified based upon his counsel’s statement. And see, that could have changed her testimony or it might have generated more questions from Ms. Arnfield in response to what I assume now is his overnight position of wanting custody at this time. And, of course, she’s not here now. So that could be prejudicial to the other parties in this case, and I just — I just don’t accept your representation that he didn’t understand.

The trial court allowed Mr. Woodroof to make an offer of proof at the conclusion of the hearing. He testified in relevant part as follows:

Q: Mr. Woodroof, you — are you asking that the Court declare you to have legal custody of your child?
A: Yes, I am.
Q: And what is the basis of your request, sir?
A: I feel that I have a constitutional right to custody of my daughter. That I am the only biological parent, the only living, biological parent to Taylor Leigh Fisher and that I feel that I have that constitutional right.
Q: ... Mr. Woodroof, you were here back in December and prior to that at the other hearings, correct?
A: That is correct.
Q: And you presented two experts that you hired on your own at that time?
A: That’s correct.
Q: And both those experts testified at the previous hearings that to transfer custody of this child to you at that time would cause substantial harm to the child?
A: At that time they testified to that. That is correct.
Q: As a matter of fact, all four experts who testified in this case, testified to that fact. Is that true?
A: At that time, they did. That is correct.
Q: Now, as we sit here today, do you have any evidence to present to contradict those four experts’ testimony?
A: I do not have any evidence to contradict those four experts’ testimony except for my testimony that I feel that I have the constitutional right to my daughter ...
Q: Do you ...
A: and I believe that that supersedes any medical experts’ testimony.

As can be seen from the above excerpts, the trial court was faced with a request to consider custody as an issue only after six days of hearings spread over a period of some sixteen months, after numerous witnesses had testified and more than a thousand pages of their testimony had been transcribed, and after the court and opposing litigants had been repeatedly told that “custody isn’t an issue in this case.” Fundamental fairness supports the judgment of the trial court, which listened to and evaluated the proof under the impression that visitation was the issue being litigated. Mr. Woodroof s party opponents presented evidence and cross-examined witnesses under the same impression. See In re Adoption of E.N.R., 42 S.W.3d 26, 32 (Tenn.2001)(stating “[w]e are of the opinion that there is little difference between an issue improperly raised before the trial court at the last minute and one that was not raised at all.”). We find no error in the trial court’s decision not to alter or amend its previous order designating the Fishers as having primary residential custody.

Further, while custody was not tried as an issue, expert testimony was elicited or developed on the potential effects of a change in custody, primarily because the experts generally testified that when Taylor discovered she had “another father,” this knowledge would potentially be a source of fear and concern to her if she thought it raised the possibility that she would be removed from the only family unit she has ever known. As already quoted above, both Mr. Woodroof and his counsel readily admitted that the experts agreed that given Taylor’s medical and psychological problems, a change of custody to Mr. Woodroof would cause substantial harm to her. All of the evidence regarding the Fishers’ family indicates that they have provided a loving, nurturing and deeply supportive family structure for Taylor. It is significant in this case that Mr. Fisher, who was married to Mother at the time of Taylor’s birth, and who thought he was the biological father until DNA testing took place, is the only father Taylor has ever known.

While it is clear that Mr. Woodroof as the biological father has constitutional parental rights to a relationship with his child, see, e.g., In re Adoption of Female Child (Bond v. McKenzie), 896 S.W.2d 546 (Tenn.1995), we wish to make it clear that custody was not an issue in the case, pursuant to Mr. Woodroofs amended petition and his repeated statements to the trial court that, in effect, he was not yet seeking custody, but rather visitation only. Therefore, our decision does not affect custody of the child as between the parties. Mr. Woodroofs petition for custody may be heard in the future, if he chooses to pursue same, as an initial petition for custody with no requirement that he show a material change in circumstances, rather than a petition for change of custody.

Mr. Woodroof has not appealed the visitation schedule set forth by the trial court’s order. He testified that “I would dearly like to follow the visitation schedule that was set up by this Court.” The delay in implementing the visitation schedule has been lengthy and unfortunate, and it is time to begin that process. It is apparent, however, that since the Fishers’ move to Columbus, Taylor has a new set of primary medical caregivers. Upon remand, the trial court is directed to amend its order to reflect the current reality of the identities of her current treating medical practitioners and her current therapists, and to grant the appropriate decision-making authority to the appropriate persons, keeping in mind Mr. Woodroofs constitutional right to attempt to foster a relationship with his biological child. Pending the trial court’s review of the visitation schedule, we order that Mr. Woodroof shall have visitation with the Child for four hours each week under the supervision of Child’s therapist, or the therapist’s designee, for a period of eight weeks. If at the end of that eight week period, the trial court has not acted, then Mr. Woodroofs visitation shall increase to' eight hours each week of unsupervised visitation in Columbus, Ohio.

IV. Conclusion

For the aforementioned reasons, the judgment of the trial court is affirmed, and the case remanded with instructions to the trial court to amend its visitation order in accordance with the preceding paragraph. Costs on appeal are assessed to the Appellant, Brett W. Woodroof, and his surety.

      . Mr. Fisher testified that his salary increased from $91,000 to $155,000 per year as a result of the change in employment. Further, this increase allowed Mrs. Fisher to remain at home and take care of Taylor, which Ms. Arnfield testified was beneficial to her.