Bohac v. Akbani

• Decision Date: 24 October 2000
• Citation: 29 S.W.3d 407
• Parties: (Mo.App. E.D. 2000) Yvonne M. Bohac, f/k/a Yvonne M. Akbani, Petitioner/Appellant, v. Salim I. Akbani, Respondent. ED76700
• Court: Missouri Court of Appeals

29 S.W.3d 407 (Mo.App. E.D. 2000)

Yvonne M. Bohac, f/k/a Yvonne M. Akbani, Petitioner/Appellant, v. Salim I. Akbani, Respondent.

ED76700

Missouri Court of Appeals Eastern District

10/24/2000

Appeal From: Circuit Court of St. Louis County, Hon. George W. Draper, III

Counsel for Appellant: Mary Ann Weems

Counsel for Respondent: Salim Akbani, Pro Se

Opinion Summary: Mother appeals from the trial court's judgment on her motion to modify, her motion to enforce, and Father's cross-motion to modify the parties' prior dissolution decree, whereby the court transferred primary physical and legal custody of their children to Father, reduced his child support obligation, and failed to award her interest on Father's past due maintenance, child support and lump sum obligations.

Division One holds: (1) There was substantial evidence supporting the transfer of custody to Father. (2) The trial court erred in reducing Father's child support obligation retroactive to a date prior to the service of his cross-motion to modify. (3) The trial court erred in failing to award Mother interest on her past due child support, maintenance, and lump sum awards.

Mary Rhodes Russell, Judge

Opinion modified by Court's own motion on October 31, 2000. This substitution does not constitute a new opinion.

Yvonne M. Bohac ("Mother") appeals from the judgment of the trial court on her motion to modify, her motion to enforce, and Salim I. Akbani's ("Father") cross-motion to modify the parties' prior dissolution decree, whereby the court transferred primary physical and legal custody of their children to Father, reduced his child support obligation, and failed to award her interest on Father's past due maintenance, child support and lump sum obligations. We affirm in part and reverse and remand in part.

Mother and Father's marriage was dissolved in May 1997. The parties were awarded joint legal custody of their two minor children, and Mother was awarded primary physical custody. Six months later, the decree was modified whereby the parties were awarded "shared" physical custody.

Pursuant to the modification, the court ordered that the children remain enrolled at Henry School in the Parkway School District for the 1997-1998 term, and that Mother "make every effort to relocate to [that district] by January 31, 1998." To aid in Mother's relocation, Father was ordered to pay Mother $15,000 within one year of the modification. The court noted that this amount would be reduced to $10,000 if Mother failed to relocate to the Parkway School District by February 22, 1998. In addition, included in the judgment, Father was ordered to: (1) pay Mother $1,475 per month in child support; and (2) pay Mother $750 per month in maintenance for a period of two years.

Mother subsequently filed a motion to modify seeking primary physical and legal custody and permission to relocate with the children to another location in Missouri or Illinois. In support of her motion, Mother noted that Father had recently been indicted for bank fraud and contended that granting her motion would be in the children's best interests. Mother also filed a motion to enforce the terms of the dissolution decree as previously modified, contending that Father failed to pay any child support or maintenance.

Father filed a cross-motion to modify, which he amended after pleading guilty to bank fraud and serving a six-month sentence. In his amended motion, Father sought to: (1) reduce his child support obligation due to a decline in income; and (2) gain primary physical and legal custody of the children due to Mother's intentional interference with his custody rights, her numerous changes in residence, and her relative instability.

The trial court, after conducting several hearings on these issues, entered its judgment transferring primary physical and legal custody of the children to Father,¹ reducing Father's child support obligation from $18,200 to $74, and awarding Mother $18,000 in past due maintenance and a $10,000 lump sum for relocation.

In its findings of fact, the trial court determined that: (1) Mother failed to relocate to the Parkway School District by February 22, 1998; (2) Mother intentionally ignored a prior court order of September 4, 1998, to immediately enroll the children in Henry School; (3) Mother caused the children to attend at least two different schools and sought to enroll them in possibly three to four schools; (4) Mother failed to mediate with Father the changes in the children's schools, as required by the modified dissolution decree; (5) Mother was unable to maintain stable living conditions for the children in that she repeatedly changed residences over a two-year period, moving the family to the residence of their housekeeper, to her parents' residence near Chicago, and to the residence of "friends" in the St. Louis area; (6) Mother removed the children from Missouri without permission of Father or the court; (7) Mother denied Father shared custody of the children; (8) Mother's conduct resulted in the children "having trouble in school"; (9) Father suffered a substantial decline in income when his company went out of business in December 1997, due to "the loss of a major customer and legal entanglements"; (10) Father failed to make scheduled payments of maintenance and child support; (11) Father failed to pay Mother the $10,000 lump sum for relocation; (12) Father is presently self-employed and earning an income of $3,000 per month; (13) Mother is presently employed and earning an income of $1,500 per month; and (14) Father's residence is in the Parkway School District, in close proximity to Henry School, and contains a room for the children to share.

Mother now appeals from the judgment of the trial court. Our review is governed by the standard set forth in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). 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 declares or applies the law. Id. at 32. In making our determination, we view the evidence and the reasonable inferences therefrom in the light most favorable to the judgment. Id. The evidence and permissible inferences favorable to the judgment are accepted as true and all contrary evidence and inferences are disregarded. L.J.B. v. L.W.B., 921 S.W.2d 23, 24 (Mo.App. 1996). We defer to the trial court's superior ability to judge factors such as credibility, sincerity, character of the witnesses, and other intangibles that are not revealed in the transcript. Id.

In her first point, Mother contends that the trial court erred in transferring primary physical and legal custody to Father for several reasons.

We give greater deference to the trial court in custody matters than other matters. A.J.K. by R.K. v. J.L., 980 S.W.2d 81, 84 (Mo.App. 1998). Because the trial court is in the best position to weigh all of the evidence, we will affirm the trial court's custody determination under any reasonable theory. Id.

First, Mother asserts that the trial court ignored substantial evidence that her inability to provide a permanent home for the children in the Parkway School District resulted from Father's failure to timely pay her maintenance, child support, and the lump sum for relocation. We disagree.

The trial court heard testimony from both parties as to their respective abilities to perform, and their reasons for not performing, their obligations under the modified dissolution decree. After consideration of this testimony, the court determined that Mother had "intentionally ignored the Court's Order and directive . . . to enroll the minor children in Henry School." We defer to the trial court on matters of witness credibility. The trial court's finding is supported by substantial evidence.

Second, Mother incorrectly contends that the transfer of custody was impermissibly based on Father's change in circumstances as the non-custodial parent.

The standard governing the modification of a decree of custody is set forth in section 452.410.1 RSMo 1994,² which provides in pertinent part:

[T]he 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.

Applying the plain language of this section, the Supreme Court of Missouri has held that any moving party, without exception, who seeks to modify a child custody order must first establish that a substantial change in circumstances of the child or his custodian has occurred. Searcy v. Seedorff, 8 S.W.3d 113, 117 (Mo. banc 1999). Once this threshold requirement is satisfied, the court may consider information pertaining to the non-custodial parent's "lifestyle and suitability of her environment for a child" in determining what is in the child's best interests. Id.

The trial court considered ample evidence demonstrating substantial changes in the circumstances of Mother, as the custodial parent, and the children. The denial of custody or visitation rights may be a substantial change in circumstances sufficient to justify a transfer of custody, especially where the evidence shows an unjustified and flagrant pattern of willful denial of custody rights. Searcy, 8 S.W.3d at 118. The record indicates that Mother intentionally denied custody to Father on numerous occasions, which resulted in contempt sanctions. In addition, Mother repeatedly changed residences, failed to relocate to the Parkway School District, intentionally ignored the court's order to enroll the children in Henry School, caused the children to attend at least two different schools and sought to enroll them in possibly three to four, failed to mediate with Father the changes in the children's schools, and...