Cook v. Warren

• Decision Date: 20 February 1996
• Docket Number: No. WD,WD
• Citation: Cook v. Warren, 916 S.W.2d 409 (Mo. App. 1996)
• Parties: Donald Riley COOK, Appellant, v. Shelley Cook WARREN, Respondent. 50882.
• Court: Missouri Court of Appeals

Page 409

916 S.W.2d 409

Donald Riley COOK, Appellant, v.Shelley Cook WARREN, Respondent.

No. WD 50882.

Missouri Court of Appeals Western District.

Submitted Nov. 20, 1995.

Decided Feb. 20, 1996.

Appeal from the Circuit Court of Platte County, Daniel M. Czamanske, Judge.

R. Michael McGinness, Platte City, for appellant.

David P. Chamberlain, Liberty, for respondent.

Before SMART, P.J., and LOWENSTEIN and BERREY, JJ.

SMART, Judge.

Donald Cook appeals from the denial of his motion for modification of the custody and child support provisions of a dissolution decree.He contends that the trial court erred in denying his motion for modification because: (1) a significant change in the circumstances of the children existed as a matter of law; and (2) the judgment was not supported by substantial evidence and is against the weight of the evidence.The judgment of the trial court is affirmed.

Appellant, Donald Cook("Father") and respondent, Shelley Cook Warren("Mother") were married on November 12, 1983.Two children were born of the marriage, Gary DeMoss Cook, born on August 4, 1984, and Adam Riley Cook, born on December 1, 1986.The marriage of the parties was dissolved on March 16, 1989.Mother was unrepresented by counsel and did not appear at the hearing.A property settlement agreement approved by the court provided for joint legal and physical custody of the two boys.There was no provision for child support to be paid by either party.The parties were to share physical custody equally, with the children staying first with Father.Mother was to become the primary physical custodian "when the parties' oldest child begins attending school ... provided that Respondent resides within the Smithville School District and has a residence of her own."¹The oldest child, Gary, was 4 1/2 at the time of the dissolution, and was expected to enter school within six months, in September, 1989.

The children resided in Edgerton, Missouri, with Father after the dissolution, but had regular visits with Mother.Mother worked part time at several places, but earned very little.She testified that she had believed the terms of the property settlement agreement precluded her from asserting her claim for custody until she acquired "a residence of her own" in Smithville.She also believed Father was doing an acceptable job of providing a home for the boys.In 1994, Mother married James Warren.In late October, 1994, Father filed a motion to obtain sole physical custody of the children.Mother and James Warren moved to Smithville shortly thereafter on December 1, 1994.She demanded primary physical custody of the children.

Father had also remarried by this time.Before Father's remarriage, Mother had no major complaints with Father's care of the children.After the marriage, as time went by, Father began to limit Mother's access to the children.By mid 1994, Father had limited Mother's previously agreed weekend visitation to every other weekend.Father also attempted to prohibit Mother's access to the children by telephone.Mother's messages were not passed on, and her calls were curtailed by Father.Moreover, Father changed his telephone number and did not provide Mother with the new number.Mother was unable to contact the children for approximately two weeks.In addition to limiting access to the children, Father ceased forwarding the children's report cards to Mother and ceased informing her of dates of parent-teacher conferences as had been his practice in the past.Although both children had been doing well in school, the school performance of the oldest child, Gary, began to deteriorate.

Father's motion to modify, filed on October 28, 1994, sought sole physical custody of Gary and Adam.He alleged that there had been a change in circumstances since the date of the dissolution decree in that the terms of the decree had never been complied with, that the children wished to remain with him, and that he had remarried.He also asked the court to order that Mother pay child support.Mother asked the court to deny Father's motion to modify, and to modify the decree to provide for child support.

After a hearing, held on February 8, 1995, the trial court denied Father's motion, holding:

No facts have arisen since the dissolution decree was entered which show a change in circumstances of the children.The decree therefore providing for joint custody to the parties and that Respondentmother shall be the primary custodian is to remain as provided.Factually however, the children will move to Smithville from the Respondentfather's home.

The trial court regarded several provisions in the decree as unjust, including the provision requiring that Mother live in the Smithville School District in a residence of her own.The trial court ordered those provisions stricken.That portion of the court's order is not appealed.The court found that Father had "financially intimidated"Mother by these requirements.The court made an award of child support, requiring that Father pay a total of $570.00 per month.Father also does not appeal that portion of the trial court's order.

Standard of Review

Modification of a prior decree of custody depends upon proof of facts showing that a change of circumstances has occurred since the prior decree in the circumstance of the child or the child's custodian.Lee v. Lee, 767 S.W.2d 373, 375(Mo.App.1989).The moving party has the burden of showing such a change in circumstances which has occurred since the original award of custody sufficient to justify a transfer of custody.L.S.S. v. P.A.S., 700 S.W.2d 517, 518(Mo.App.1985).The standard is codified in § 452.410, RSMo 1994² which states, in pertinent part [T]he court shall not modify a prior custody decree unless it has jurisdiction under the provisions of section 452.450 and 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.

Review of this court tried case is governed by the oft-cited principles found in Murphy v. Carron, 536 S.W.2d 30, 32(Mo. banc 1976).The trial court's decision must 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.The trial court has broad discretion in making provision for child custody and this court will not interfere with the trial court's decree unless the welfare of the children compels such interference.P.L.W. v. T.R.W., 890 S.W.2d 688, 690(Mo.App.1994).The trial court is in a much better position to judge the credibility of the witnesses, their sincerity, character, and other intangibles which are not readily apparent from the record, and it is presumed that the court has studied all of the evidence and decided the custody issue in a manner consistent with the best interest of the child.Id.Greater deference is accorded the decision of the trial court in custody cases than in other cases.Johnson v. Johnson, 839 S.W.2d 714, 717(Mo.App.1992).

Modification

Father presents two points on appeal, arguing that the trial court erred in denying his motion for modification because: (1) a significant change in the circumstances of the children existed as a matter of law; and (2) the judgment was not supported by substantial evidence and is against the weight of the evidence.Both of Father's points will be considered together.

Father has been serving as the de facto primary physical custodian of the children while the decree contemplated that Mother would serve as the primary physical custodian.Father contends there has been a substantial and continuing change of circumstances.He approachesthe case as though the burden is on him to show a change of circumstances, even though he has been the de facto primary custodian.But whether we employ his approach or use a different analysis, the result is the same because the key factor, under the facts of this case, is the issue of what disposition serves the best interests of the children.The failure of the parties to carry out the provisions of the dissolution decree as to custody is not necessarily a change of circumstances.The trial court did not regard the failure as a change, concluding that Mother believed she had to secure a residence of "her own" in Smithville before she was legally entitled to insist that the children reside in her home.The contention that their young children prefer to live with father, even if true, does not constitute a change of circumstances, nor does the fact of Father's remarriage, especially given the fact that Father's conduct after his remarriage became more restrictive toward Mother's involvement with the children.

However, whether or not a change in circumstances had occurred, the evidence in this case does not require that we reverse the trial court.Section 452.410 deals not only with a change "in the circumstances of the child or his custodian" but also deals with "the best interests of the child."The trial court, in its order, implicitly found that the best interests of the two children would be best served by allowing the primary physical custody of the children to rest with Mother.In its order, the court stated, inter alia:

8.In reviewing Sec. 452.375.2 RSMo., the Court finds both parties generally equal in the matters to be considered.However, the Respondent prevails in the area of the parent who will give or permit more frequent and meaningful contact with the non-custodial parent.Also, she prevails in providing a continuing relationship with both parents.Petitioner has displayed...