Clark v. Ingram

• Decision Date: 18 September 2012
• Docket Number: No. WD 74554.,WD 74554.
• Citation: 380 S.W.3d 607
• Parties: Taegan Cora CLARK, a Minor Child, By and Through Jimmy CLARK, Next Friend and Jimmy Clark, Individually, Appellant, v. Shannon R. INGRAM, Respondent.
• Court: Missouri Court of Appeals

380 S.W.3d 607

Taegan Cora CLARK, a Minor Child, By and Through Jimmy CLARK, Next Friend and Jimmy Clark, Individually, Appellant,

v.Shannon R. INGRAM, Respondent.

No. WD 74554.

Missouri Court of Appeals, Western District.

Sept. 18, 2012.

Appeal from the Circuit Court of Clay County, Missouri, Kathryn E. Davis, Judge.

Michael Kinder, for Appellant.

Michael J. Svetlic, Kansas City, MO, for Respondent.

Before Division Two: JOSEPH M. ELLIS, Presiding Judge, ALOK AHUJA, Judge and MARK D. PFEIFFER, Judge.

Joseph M. Ellis, Judge.

Jimmy Clark(“Father”) appeals from a Judgment entered in the Circuit Court of Clay County in an action to establish the paternity of his daughter, T.C.C. Father challenges the trial court's decisions related to custody, visitation, and child support.

While Father's second point on appeal is meritorious and requires amendment of the judgment, his remaining points lack merit, and a formal, published discussion related thereto would serve no jurisprudential purpose.¹Accordingly, we affirm the trial court's judgment as to those points by summary order pursuant to Rule 84.16(b).A memorandum explaining the reasons for our decision on those points has been provided to the parties.This opinion addresses only Father's second point.

Father and Shannon Ingram(“Mother”) dated for about five or six years before Mother became pregnant with T.C.C.By the time T.C.C. was born May 11, 2009, however, they were no longer romantically involved.On August 13, 2009, Father filed a Petition for Paternity, Child Support and Visitation in the Circuit Court of Clay County.Mother filed an answer and counter-petition for paternity.

Following trial, on May 6, 2011, the circuit court entered its judgment declaring Father the natural father of T.C.C.The court granted Mother sole physical and legal custody of T.C.C., established a visitation schedule for Father, and ordered Father to pay $701.00 per month in child support.Father appeals from that judgment.

“Our standard of review in a paternity action is governed, as in any court-tried case, by Murphy v. Carron,536 S.W.2d 30(Mo. banc 1976).”Huber ex rel. Boothe v. Huber,204 S.W.3d 364, 367(Mo.App. W.D.2006).“Accordingly, we will affirm the trial court's judgment unless it is unsupported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law.”Id.(internal quotation omitted).

In his second point, the sole point addressed in this opinion, Father contends that the trial court erred in declaring Mother to be the sole physical custodian of T.C.C.He claims that Mother should not be deemed to have sole physical custody in light of the significant amount of parenting time awarded to him in the schedule of parenting time.

“Section 452.375.1(3) defines joint physical custody as an arrangement where each parent is awarded ‘significant, but not necessarily equal, periods of time during which a child resides with or is under the care and supervisions of each of the parents.’ ”Alberswerth v. Alberswerth,184 S.W.3d 81, 88 n. 3(Mo.App. W.D.2006).The term “sole physical custody” is left undefined in the statute.“Given the definition of joint physical custody, however, sole physical custody would logically encompass custodial arrangements in which one of the parents is not awarded significant periods of custodial time.”Id.Thus, “[t]he determining factor in classifying physical custody as either joint or sole is whether the periods of physical custodial time awarded to the parents is deemed ‘significant.’ ”LaRocca v. LaRocca,135 S.W.3d 522, 525(Mo.App. E.D.2004).“When the court orders significant periods of time where the child is under the care and supervision of each parent, the award is one of joint physical custody, regardless of how the court characterizes it.”Wood v. Wood,193 S.W.3d 307, 311(Mo.App. E.D.2006).

The parenting plan adopted by the trial court gave Father parenting time starting 7:15 a.m. Wednesday with the ending time alternating between 4:45 p.m. Thursday and 4:45 p.m. Friday.²The parenting plan also evenly split holidays between the parents and granted Father an additional five consecutive days over the summer.Similar parenting plans have been deemed to have allotted “significant” periods of time under the care and supervision of the parent to make the award one of joint physical custody.SeeIn re Marriage of House,292 S.W.3d 478, 487–88(...