Brown v. Brown III

• Decision Date: 06 June 2000
• Citation: 19 S.W.3d 717
• Parties: (Mo.App. W.D. 2000) Laura J. Brown, Appellant, v. Thomas J. Brown III, Respondent. WD56468 0
• Court: Missouri Court of Appeals

19 S.W.3d 717 (Mo.App. W.D. 2000)

Laura J. Brown, Appellant, v. Thomas J. Brown III, Respondent.

WD56468

Missouri Court of Appeals Western District

06/06/2000

Appeal From: Circuit Court of Cole County, Hon. Randolph E. Puchta

Counsel for Appellant: Charles P. Todt

Counsel for Respondent: Lori J. Levine

Opinion Summary: Mother Laura J. Brown appeals from the trial court's judgment of modification terminating joint legal custody and awarding father Thomas J. Brown III legal custody of the parties' three minor children. The mother contends that the trial court abused its discretion in terminating joint legal custody because the parties share many common beliefs and have demonstrated an ability and willingness to cooperate on many issues. The mother also appeals the trial court's reduction of the amount of child support to be paid by the father.

AFFIRMED IN PART AND REVERSED IN PART.

Division II holds:

The mother has demonstrated an unwillingness and inability to share the rights and responsibilities of raising the children. The trial court did not err in terminating joint legal custody and awarding sole legal custody to the father.

The father has not met his burden of showing changed circumstances so substantial and continuing as to make the terms unreasonable. The child support provisions of the prior decree are reinstated.

Robert G. Ulrich

Laura J. Brown (Mother) appeals from the judgment of modification of the trial court terminating joint legal custody and awarding Thomas J. Brown III (Father) legal custody of the parties' three minor children. Mother contends that the trial court abused its discretion in terminating joint legal custody and awarding Father legal custody because the judgment is against the weight of the evidence in that the parties share many common beliefs and have demonstrated an ability and willingness to cooperate on many issues. Mother also contends that the trial court erred in decreasing the amount of child support because Father did not show a substantial and continuing change in circumstances which made the original terms of the decree unreasonable, and the decrease in child support is not in the best interest of the children. The judgment of the trial court is affirmed in part and reversed in part.

Facts

The parties' marriage was dissolved on July 22, 1993. The final judgment and decree of dissolution, entered on December 21, 1993, granted the parties joint legal and physical custody of their three minor children. Physical custody was divided evenly as a six-month split. Mother was awarded physical custody of the children from the first day of the second school semester through July 31 of each year, subject to visitation by Father; and Father was awarded physical custody commencing August 1 and ending at the close of the first semester of each school year, subject to visitation by Mother. The trial court specifically noted in its award of joint legal custody that "[a]lthough [Mother's] attitude toward [Father] is acrimonious, there is no indication that the parties are not emotionally equipped to make joint decisions concerning the children's upbringing and the input and involvement of both parents will best serve the children" and "[Father] was the parent more likely to allow the children frequent and meaningful contact with the other parent." The decree ordered the parties to confer with one another in the exercise of decision-making rights, responsibilities and authority. The decree also stated that the parties were to have equal authority in all material decisions affecting the rearing of the children. The court calculated the presumed child support amount. Father, however, agreed to pay more than the presumed child support amount, and child support was set at $800 per month. The court also ordered that Father maintain medical insurance for the benefit of the children and that the parties equally divide all uncovered health care expenses and the costs of the children's extracurricular activities upon which the parties agreed. The judgment included a mediation provision for any disputes regarding the children.

Father filed a Motion to Modify legal custody on July 7, 1997. The court entered its judgment of modification on August 28, 1998, terminating joint legal custody and awarding Father legal custody of the parties' three minor children. No change was made to the parties' joint physical custody arrangement. The court also ordered Father to pay all of the children's extracurricular expenses for the activities in which he enrolls them, decreased child support to $630 per month in accordance with Father's Form 14,¹ and removed the mediation provision. This appeal followed.

Standard of Review

As this is a court tried case, the judgment of the trial court will be affirmed on appeal 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. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Greater deference is given to the determination of the trial court in child custody matters than in other cases. Landry v. Miller, 998 S.W.2d 837, 840 (Mo. App. W.D. 1999). In custody cases an appellate court should exercise its power to set aside the trial court's judgment or decree on the ground that it is against the weight of the evidence only with caution and with a firm belief that the decree is wrong, and only if it is firmly convinced that the welfare of the child requires another disposition. McCauley v. Schenkel, 977 S.W.2d 45, 50 (Mo. App. E.D. 1998).

Termination of Joint Legal Custody

Mother contends that the trial court erred in terminating joint legal custody and granting Father sole legal custody of the three minor children. Mother claims the trial court's decision is against the weight of the evidence in that substantial evidence exists that the parties share many common beliefs and have demonstrated an ability and willingness to cooperate on many issues. Mother also asserts that the court's judgment precluding her from participating in the decisions regarding the children is against the best interests of the children. Mother additionally claims that the trial court erred in failing to address Father's behavior affecting communication between the parties in its findings of fact, denying Mother's motion to dismiss and to compel mediation pursuant to the dissolution decree, denying Mother's motion to strike Father's evidence of his correspondence with Mother as being a self-serving declaration, and failing to include a complete detailed parenting plan.

Parties' Common Beliefs

Mother contends that substantial evidence exists that the parties share many common beliefs and have demonstrated the ability and willingness to cooperate on many issues and precluding Mother from contributing to decisions affecting the children is against their best interest. In support of her contention, Mother points to instances in which the parties have been able to agree on several issues, including medical care, religious upbringing, educational development, and payment of medical expenses.

Modification of child custody decrees is governed by section 452.410, RSMo 1994, which provides that a court with jurisdiction can modify a prior custody decree, if 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." Section 452.410.1, RSMo 1994. In the context of joint custody, a breakdown of parental communication and cooperation is sufficient, in and of itself, to constitute a change in circumstances affording the basis for modifying a prior decree. McCauley, 977 S.W.2d at 50.

"Joint legal custody" means that the parents "share the decision-making rights, responsibilities, and authority relating to the health, education and welfare of the child, and, unless allocated, apportioned, or decreed, the parents shall confer with one another in the exercise of decision-making rights, responsibilities, and authority." Section 452.375.1(1), RSMo Cum. Supp. 1997. A commonality of beliefs concerning parental decisions, and the ability of the parties to function as a parental unit in making those decisions, are two important considerations in determining whether joint legal custody is in the child's best interests. McCauley, 977 S.W.2d at 50. The Missouri Supreme Court has recognized that this commonality of beliefs and ability to cooperate and function as a parental unit is imperative to the best interests of the child in a joint custody arrangement. Mehra v. Mehra, 819 S.W.2d 351, 353 (Mo. banc 1991).

Joint legal custody is only appropriate where the parents "demonstrate the willingness and ability to share the rights and responsibilities of raising their children." Leone v. Leone, 917 S.W.2d 608, 614 (Mo. App. W.D. 1996). "Where the parties are unable to communicate or cooperate and cannot make shared decisions regarding the welfare of their children, joint custody is improper." Id. Joint custody is "not likely to be in the child's best interest if the parents cannot agree to agree." Dent v. Dent, 965 S.W.2d 230, 237 (Mo. App. W.D. 1998).

In the judgment entered on August 28, 1998, the trial court set forth the following as its rationale for modifying custody:

[Mother's] acrimonious attitude toward [Father] has not diminished but has increased, and this attitude has adversely effected [Mother's] conduct and behavior toward [Father], making communications regarding decisions extremely difficult and unpleasant. [Mother] has now carried this attitude over toward [Father's] present wife, and it is displayed quite graphically, often in the presence of the children, causing them great discomfort and embarrassment. It is further expressed in her refusal to attend family...