Anderson v. Anderson, WD

• Decision Date: 18 May 1993
• Docket Number: No. WD,WD
• Citation: Anderson v. Anderson, 854 S.W.2d 32 (Mo. App. 1993)
• Parties: Sheila R. ANDERSON (Moss), Respondent, v. Sheldon C. ANDERSON, Appellant. 46558.
• Court: Missouri Court of Appeals

Page 32

854 S.W.2d 32

Sheila R. ANDERSON (Moss), Respondent, v.Sheldon C. ANDERSON, Appellant.

No. WD 46558.

Missouri Court of Appeals Western District.

May 18, 1993.

Steven D. Wolcott, Withers, Brant, Howard & Mullennix, P.C., Liberty, for appellant.

Thomas E. Perrine, Kansas City, for respondent.

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

ULRICH, Judge.

Sheldon C. Anderson appeals from the trial court's order modifying the decree which dissolved his marriage with Sheila R. Anderson(Moss).The modification order changed the child custody and support provisions of the decree.The decree provided the natural parents joint legal and physical custody of the child born of the marriage, Shyla Kristin Anderson, who was fifteen months old at the time of the dissolution.The modification order directed that the parties maintain joint legal custody of Shyla but that Mrs. Moss have primary physical custody of her daughter.Additionally, the modification order required Mr. Anderson to pay the sum of $497 per month child support.

Mr. Anderson appeals the modification order and a posttrial order denying Mr. Anderson's motion for a new trial and refusing to reopen the case for further evidence as to child support and visitation.He asserts three points on appeal.He contends as point (1) that (a) no substantial evidence was presented that demonstrated a change had occurred in the circumstances of the child or the child's custodian, and that (b) the modification order was unnecessary to serve the best interest of the child.As his point (2) on appeal, Mr. Anderson contends that the evidence did not support Mrs. Moss's Form 14 figures, because, he claims, Mrs. Moss's income was voluntarily reduced, and, therefore, the court should have inferred the appropriate income for Mrs. Moss.As point (3), Mr. Anderson claims that the court erred in overruling his motion for a new trial or, in the alternative, declining to reopen the case, on the issue of child support because, he contends, the attached affidavit to his motion constituted sufficient good cause for the trial court to grant his motion.The judgment is affirmed in part, reversed in part, and remanded for additional evidence.

The marriage between Sheila R. Moss and Sheldon C. Anderson was dissolved on August 14, 1990.The decree of dissolution provided that the parties would share joint physical and legal custody of their daughter, Shyla Kristin Anderson.Shyla was born to the marriage on May 18, 1989.She was fifteen months old when the decree of dissolution was entered.The decree did not provide child support to either party.

The parties agreed to share Shyla's legal and physical custody.The trial court concurred.The joint physical and legal custody plan agreed to by the parties and assimilated into the decree provided that the parents would jointly make many specific essential parenting decisions.The decree stated that if the parties were unable to agree to periods of Shyla's physical custody, they were to submit the dispute to the court of competent jurisdiction.

Mrs. Moss filed her motion to modify the decree of dissolution on April 29, 1991.She alleged a change of circumstances so substantial and continuing as to make the terms of the original decree unreasonable, claiming specifically that (1)the parties were unable to agree on a joint physical custody plan involving their daughter, and that (2) because attempts to continue the joint physical custody plan had confused Shyla, the custody provisions provided by the original decree were not in Shyla's best interest.

On June 6, 1991, Mr. Anderson filed a motion to dismiss Mrs. Moss's motion to modify and a cross motion to modify the decree.He contended that Mrs. Moss's motion to modify failed to state sufficient change of circumstance to require modification of the decree.Mr. Anderson's cross motion to modify the decree alleged a continuing change of circumstance requiring modification of the decree's joint physical and legal custody provisions for Shyla.

At the hearing before the trial court on April 8, 1992, Mrs. Moss produced evidence in her effort to prove a substantial change in circumstance justifying a change in the child custody and support provisions of the decree.She testified that she and Mr. Anderson were unable to agree on specific custody provisions regarding Shyla.She stated that her daughter was developing problems with her eating and sleeping habits because of her daughter's frequent transfer from one parent to the other and the different attitudes of each parent regarding Shyla's eating and sleeping patterns.She also noted the difference in disciplinary styles of the two parents as a source of confusion for Shyla.Additionally, Mrs. Moss claimed that because Shyla was older, Shyla's needs had changed.Mrs. Moss noted that as Shyla grew older she required greater attention from Mrs. Moss.When Mrs. Moss was working nights as a waitress, she was not able to satisfy her daughter's needs during the day because of her own need for sleep.To accommodate her daughter, Mrs. Moss was forced to change her work hours from a night schedule to a day schedule.Mrs. Moss stated that the joint physical custody plan originally agreed to by the parties and directed by the decree of dissolution had become unworkable.

Mrs. Moss testified that she had experienced a reduction in her income since she began working days as a waitress, for she no longer received the night manager's wages and substantially greater tips she had earned while working nights.Mrs. Moss introduced her completed Form 14, which included the calculation for the presumed required amount of child support, and asked that she be awarded $497.00 per month in child support pursuant to the Form 14 calculations.

Mr. Anderson moved to dismiss Mrs. Moss's motion to modify at the close of Mrs. Moss's evidence.Mr. Anderson's motion claimed that Mrs. Moss had failed to prove a substantial change in circumstances.The motion was overruled.

Mr. Anderson presented evidence.He testified that he desired to see his daughter at least as often as he had under the original decree and that the joint physical custody plan should be continued.He testified that he had not observed his daughter manifest the negative behavioral patterns that Mrs. Moss had asserted during her testimony.

Following the hearing, the court, on May 26, 1992, made specific findings of fact and conclusions of law.The court found that there existed a change of circumstances so substantial and continuing as to make the terms of the decree unreasonable.The court stated: "The parties are now unable to agree on a joint physical custody plan" and "the minor child's sleeping habits, dietary patterns, and emotional growth are adversely affected by the efforts to continue a joint physical custody plan."The court also determined that each of the parties had remarried and that Mrs. Moss had experienced a significant reduction in her income.The court found that the best interests of the minor child required that she be placed in Mrs. Moss's primary physical custody and that the parties continue joint legal custody.The court directed that Mrs. Moss be awarded $497 a month as child support, calculated pursuant to Mrs. Moss's completed Form 14, which had been filed and submitted as evidence.The court also ordered that Mr. Anderson have specific visitation rights with Shyla, with direction that the father's and daughter's visitation rights were not limited to those specified and that additional reasonable visitation should be experienced by Shyla and her father.

Mr. Anderson filed a posttrial motion for a new trial or, in the alternative, to amend the court's judgment or to reopen the trial for additional evidence.Mr. Anderson desired an opportunity to present additional evidence regarding his reduction of income in an effort to reduce the child support award, and he sought to expand his specific visitation rights with the minor child.The motion was argued before the court on July 1, 1992.The court overruled the motion, and Mr. Anderson appealed from the order modifying the decree and from the court's order denying his posttrial motion.

Review of this case is pursuant to the provisions of Murphy v. Carron, 536 S.W.2d 30(Mo. banc 1976).The trial court's judgment will be sustained unless Mr. Anderson shows that there is no substantial evidence to support the trial court's decision, that the court's judgment is against the weight of the evidence, or that the trial court erroneously declared or applied the law.Id. at 32.

I.

Mr. Anderson's point (1) on appeal claims that the court erred in modifying the dissolution decree to eliminate the provisions of Shyla's joint physical custody between the parties because no substantial evidence was presented that (a) a change in circumstance had occurred and that (b) the modification was necessary to satisfy the best interests of the child.

The original decree included the joint custody plan agreed upon by the parties.The plan directed that significant and less significant decisions affecting Shyla would be made by the parties collectively.The plan enumerated both conceptual and specific decisions regarding Shyla that the parties would make.One provision provided that the parties shall "exercise his or her best effort to accommodate the social and academic commitments of the child."Another provision provided for joint decision making, requiring that "the parties herein shall confer with each other and share the decision making authority, keeping in mind the best interest of the child."The plan listed topics which required a joint decision by the parties.Selecting doctors required by Shyla, setting Shyla's curfew, choosing the manner in which Shyla...