Alt v. Alt, WD

• Decision Date: 18 April 1995
• Docket Number: No. WD,WD
• Citation: 896 S.W.2d 519
• Parties: Sherry Ann ALT, Respondent, v. Edward M. ALT, Appellant. 49423.
• Court: Missouri Court of Appeals

Page 519

896 S.W.2d 519

Sherry Ann ALT, Respondent, v. Edward M. ALT, Appellant.

No. WD 49423.

Missouri Court of Appeals Western District.

April 18, 1995.

Glen A. Dietrich, Maryville, for appellant.

Roger M. Prokes, Maryville, for respondent.

Before HANNA, P.J., and BRECKENRIDGE and SMART, JJ.

PER CURIAM:

This case involves the modification of an award for custody of a minor child and a child support obligation. Edward Alt appeals from the trial court's order of modification.

Judgment is reversed and the case is remanded.

Sherry Alt ("Mother") and Edward Alt ("Father") were divorced on January 25, 1993. The parties were awarded joint legal and physical custody of the only child born of the marriage, Mikaela Leah Alt, who was born on May 24, 1987. Each parent had actual physical custody of the child approximately one-half of the time. On November 9, 1993, Mother filed a motion to modify the custody and support obligation award, which was heard on February 17, 1994.

In the motion to modify, Mother alleged the custody arrangement needed to be changed because Father had failed to provide responsible care for Mikaela. In support of her contention, she alleged that Father: 1) neglected to see that the child had proper rest; 2) failed to see that the child was properly clothed in light of weather conditions and activities in which she would be involved; 3) failed to communicate to Mother homework and class assignments; and 4) failed to supervise the child so that she fulfilled her academic responsibilities. The trial court, after hearing evidence, modified the original award eliminating joint physical custody and awarding physical custody of Mikaela to Mother, with reasonable visitation rights to Father. The trial court also increased the child support obligation from $200 per month to $340 per month. Father appeals.

First, Father contends that the trial court erred in sustaining Mother's motion to modify because Mother did not show a change had occurred in the circumstances of the child. Thus, Father argues that the modification award was not supported by substantial evidence. This court must affirm the trial court's judgment unless the judgment is clearly against the weight of the evidence or the judgment erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

Section 452.410.1, RSMo 1994 allows the trial court to modify a custody decree if evidence is presented which shows: (1) that a change has occurred in the circumstances of the child or the child's custodian; and (2) that modification is necessary to serve the best interests of the child. After child custody has been adjudicated in a dissolution proceeding, the custody award is presumed suitable and the party seeking modification of the award bears the burden of showing a substantial change of conditions mandating the requested change to further the best interests of the child. Hoefer v. Hoefer, 860 S.W.2d 376, 378 (Mo.App.1993).

Prior to the modification hearing, the parties shared the joint legal and physical custody of the child for approximately one and a half years. Each party was with the child about one-half of the time. Mother would have the child four days one week, while Father would have the child three days that week. The next week the parties would switch and Father would have the child four days and Mother would have her three days. The parties would exchange custody of Mikaela on each Wednesday.

On appeal of the custody order, we view the evidence in the light most favorable to the decision of the trial court. Mother's testimony at the hearing included her opinion that the child does not get the amount of rest that she needs when in Father's care. When the child is in her mother's care, the child has a 9:00 p.m. bedtime. Mother testified, however, that the child was up late when the child stayed with Father. She testified as to several specific occasions when the child was up past 11:00 p.m. because Father took Mikaela with him when Father had to work late. Mother also asserted that Father on several occasions failed to properly clothe the child for the weather conditions. Mother testified that she knew of times when Father would allow the child to go out on cold days without gloves or with bare legs. On at least one occasion, she said, Father sent Mikaela to school with holes in her shoes. Mother also recounted one incident where the child had a blister on her foot from roller-skating while in Father's care, which she understood was due to the fact that the child had not worn socks while skating.

Mother complained that sometimes Father failed to communicate homework and class assignments to her. There was some confusion between the parties regarding a group of assignments sent home every week known as the "Wednesday bag." The assignments were sent home on Wednesday and were to be completed by the combined effort of student and parent, and returned on either Friday or Monday. Sometimes the parties failed to communicate as to whether the assignments had been completed or whether they had been returned to school. Also, the "Wednesday bag" would sometimes inadvertently be left at the wrong house. Mother further testified that the child was no longer allowed to check out books from the school library because twice the child was unable to return the books on time due to communication problems with Father.

April Lawyer, the child's first grade teacher, testified that Mikaela was an average first grade girl. She described the child's ability as average and above. She stated that Mikaela sometimes appeared tired, which she did not regard as unusual for first grade students. Also, she noted that this condition appeared to have improved. The teacher testified that Mikaela had all satisfactory and outstanding marks on her report card, and that the only area in which she was given a grade of "needs improvement" was her handwriting. In response to the question as to whether Mikaela appeared to be a normally adjusted child, she stated:

I believe she's as adjusted as she can be considering some of the circumstances.... It is my opinion, no research or facts to document, that a child six and seven years old should have a consistent weekly place that they go. I believe their set up, as much as I could understand, is a three day, four day and then it switched the next week, four day, three day. And because our school is set up on a five day, we send home notes on Monday and on Friday we have something going on. Well, she's switched in the middle of the week. I believe Sherry and Ed have done a good job communicating. Both have been to all the conferences and her music program. They've communicated as well as you possibly can for the set-up, in my opinion.

After hearing the evidence, the court commended both parents for doing a good job with the child. The court stated that the individual acts asserted against the father seemed not to be substantial but rather were somewhat "nitpicky." The court, nevertheless, adverting to the testimony of the teacher, stated that it seemed clear to him that the child "needs to be in one place during the school year." Counsel for the father suggested that the teacher had said only that...