Baker v. Welborn

• Decision Date: 19 June 2002
• Docket Number: No. 24207.,24207.
• Citation: Baker v. Welborn, 77 S.W.3d 711 (Mo. App. 2002)
• Parties: Sandra Lee (Welborn) BAKER, Plaintiff-Appellant, v. Kenneth Richard WELBORN, Defendant-Respondent.
• Court: Missouri Court of Appeals

77 S.W.3d 711

Sandra Lee (Welborn) BAKER, Plaintiff-Appellant, v.Kenneth Richard WELBORN, Defendant-Respondent.

No. 24207.

Missouri Court of Appeals, Southern District, Division Two.

June 19, 2002.

Joseph Aubuchon, Daniel E. Leslie, Union, for appellant.

No appearance for respondent.

JOHN E. PARRISH, Judge.

Sandra Lee(Welborn) Baker (mother) appeals the part of a modification judgment that granted additional visitation rights to Kenneth Richard Welborn(father) with the parties' children and the part that reduced the amount of child support father was required to pay from $382 per month to $368.¹The part of the judgment that reduced the amount of child support father was required to pay is reversed and remanded with directions.In all other respects, the judgment is affirmed.

The modification judgment that is the subject of this appeal recites:

That on November 26, 1990, this Court entered its Judgment and Decree of Dissolution of Marriage herein; that thereafter the Court entered its Judgment of Modification on December 8, 1998; and that the said Judgment of Modification ordered that [mother] have sole legal custody of the children; that [mother] have primary physical custody of the children; and that [father] have rights of reasonable visitation and temporary custody and specific rights of visitation and temporary custody as set out therein.

The trial court made the following findings regarding the custody of the children and visitation rights:

...

5.That no evidence was introduced by either party of any facts unknown to the Court at the time of entry of the prior Judgment of Modification; that based upon facts that have arisen since the entry of the prior Judgment, there has been no change in the circumstances of the minor children and [mother], their custodial parent, requiring the modification of the provisions of the prior Judgment as to legal and primary physical custody as would be necessary to serve the best interests of the minor children.Section 452.410, RSMo.

6.That, based upon facts that have arisen since the entry of the prior Judgment, a modification of the Judgment as to visitation would serve the best interests of the children.Section 452.400.1 RSMo; and that such facts include the relocation of [mother] from Jackson County, Missouri, to Benton County, Missouri; the stable relationship of [father] with his paramour and the expressed wish of the children to be allowed to spend more time with their father.

7.That, after consideration of all relevant factors, including those set out in Section 452.375.2, RSMo (Sub-paragraphs (1) through (8)[)], the provisions of the Judgment entered on December 8, 1998, should be modified as to the visitation rights of the parties as set forth hereinafter, and such modification is in the best interests of the children.

...

The trial court ordered the modification judgment that had been entered December 8, 1998, "replaced and superceded" with respect to child custody and visitation as follows:

[Mother] shall retain sole legal custody and primary physical custody of the minor children of the parties(hereinafter referred to as "Heather, Holly and Hilary"); and that [father] shall have all rights bestowed on non-custodial parents under the law of the State of Missouri, including access to school records.These provisions in this Judgment regarding the children are to be construed as the "Parenting Plan" required by Section 452.375.9, RSMo.

[Father] shall have the following rights of specific visitation:

Every other weekend from 6:00 p.m., Friday to 6:00 p.m., Sunday.

Every Father's day from 8:00 a.m., to 6:00 p.m.

From December 26th at 6:00 p.m., through December 30th at 6:00 p.m.

One half of the period of the school spring break given to Heather, Holly and Hilary each year.

From Wednesday at 6:00 p.m., to Sunday at 6:00 p.m., during the Thanksgiving Holiday in odd-numbered years beginning in 2001.

[Father] shall have summer visitation commencing at 6:00 p.m., the second Sunday after the school in which the children are enrolled lets out for summer until August 15th at 6:00 p.m. [Mother] shall have temporary visitation during the summer on every other weekend from 6:00 p.m., Friday to 6:00 p.m., Sunday, commencing the Sunday before July 4th at 6:00 p.m., (If July 4th is on a Sunday, commencing that date) until the Sunday thereafter at 6:00 p.m.

...

[Mother] and [father] shall meet at the Missouri State Capital in Jefferson City, Missouri, to exchange the children for all periods of visitation.

...

The modification judgment found, with respect to child support:

That, based upon the reported 1999 income of the parties, [father's] monthly income is $1,400.00, but taking into account his support obligation for the other child in his physical custody, his gross monthly income for purposes of Form 14 is $1,125.00; that [mother's] gross monthly income is $1,237.00 for purposes of Form 14; and that there are no other additional child rearing costs as of the date of the trial.The Court further finds that there is no competent evidence that there would be a substantial change in either party's 2000 gross monthly income.The Court, therefore, finds that the presumed correct child support amount as calculated pursuant to Rule 88.01 and Form 14 is $760.00 per month, and that [father's] support obligation is, therefore, $402.00 per month.The Court further finds that this does not result in a change in the existing child support amount of $368.00 by twenty percent or more, and that the present child support obligation should not be modified.

The modification judgment decreed "that [father] shall pay [mother] the sum of $368.00 per month for child support, commencing on April 1, 2001, and on the 1st day of each month thereafter, subject to further Orders of the Court, payable through the Family Support Collection Center, Jefferson City, Missouri.Child support shall abate in July of each year.[Mother] shall be entitled to claim Heather, Holly and Hilary as dependents for Federal and State Income Tax purposes."

This was a court-tried case.The judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declared or applied the law.Stowe v. Spence,41 S.W.3d 468, 469(Mo. banc 2001).

Mother's first point on appeal asserts the trial court erred in modifying the terms of father's visitation because "the evidence was uncontroverted that the best interests of the minor children would not be served by additional visitation with father."It further asserts "there were no significant changes in circumstances to justify a change in visitation" and that "the trial court cited three reasons for the modification of visitation, two of which were not changes in circumstances, and the third reason being a desire expressed by the children to live with the father, which by itself is not sufficient to warrant a modification."²

One of the issues asserted in Point I is that there were no significant changes in circumstances to justify a change in visitation.Section 452.400.2,³ as applicable here, provides, "The court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child, ....""The criterion for change of visitation is best interests of the child."Quackenbush v. Hoyt,940 S.W.2d 938, 944(Mo.App.1997).The trial court need not find a substantial change of circumstances in order to modify visitation.Warren v. Warren,909 S.W.2d 752, 755(Mo.App.1995).It may modify visitation if the modification would serve the best interests of the child.Id.

Mother argues, however, that the changes in "visitation" ordered by the modification judgment "are so dramatic that the visitation order is actually a joint physical custody plan"; that, therefore, the requirements for the change are those prescribed by § 452.410.1.Section 452.410.1 provides, with respect to modification of child custody, that "the court shall not modify a prior custody decree unless ... it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child."

Mother, in arguing that this case is a change of custody rather than a change in visitation, relies on this court's discussion of terminology in Francka v. Francka,951 S.W.2d 685(Mo.App.1997).Francka was a dissolution action.In awarding custody of the parties' child, the trial court, after awarding legal custody to the wife, characterized the parties' physical custody rights as "primary physical custody" for wife and "rights of visitation" for the husband.Id. at 689 n. 1.This court observed that the characterization of wife's rights as custodial and husband's as visitation was erroneous; that because each party was awarded significant periods of time, the award actually was one of joint physical custody.Section 452.375.1(3) provides that "joint physical custody" occurs when an order is entered that awards each parent "significant, but not necessarily equal, periods of time during which a child resides with or is under the care and supervision of each of the parents."⁴Id. at 689 n. 1, citingRinehart v. Rinehart,877 S.W.2d 205, 207(Mo. App.1994);In re Marriage of Miller,876 S.W.2d 289, 290(Mo.App.1994);In re Marriage of Johnson,865 S.W.2d 412, 415(Mo.App.1993).

Whether an award of "primary physical custody" results in an award of joint physical custody to both parents or an award of sole physical custody to one and visitation rights to the other was discussed in Stewart v. Stewart,988 S.W.2d 622(Mo.App.1999), and in Babbitt v. Babbitt,15 S.W.3d 787(Mo.App.2000).Stewart explains:

Since the time of the adoption of the joint custody statute, the...