Dover v. Dover, WD

Citation930 S.W.2d 491
Decision Date08 October 1996
Docket NumberNo. WD,WD
PartiesPaula DOVER, Appellant, v. Eldon DOVER, Respondent. 51034.
CourtCourt of Appeal of Missouri (US)

Edward Berg, Columbia, for appellant.

F. Randall Waltz, III, Waltz & Jordan, Jefferson City, for respondent.

Before EDWIN H. SMITH, P.J., and BRECKENRIDGE and ELLIS, JJ.

BRECKENRIDGE, Judge.

Paula Dover (Mother) appeals from the trial court's order modifying the decree that dissolved her marriage to Eldon Dover (Father). Mother contends that the trial court erred by failing to grant her summer visitation with the parties' children, and by failing to modify the transportation arrangements for visitation contained in the original decree. The trial court's order concerning visitation is affirmed in part, and reversed in part and remanded.

During Mother and Father's marriage, they had two children: Eric Ryan Dover, born on October 24, 1982, and Aaron Ray Dover, born on October 24, 1984. In September of 1987, the parties obtained a dissolution decree which dealt with all issues other than child custody, visitation and support. In March 1989, the court awarded custody of both Aaron and Eric to Father subject to Mother's rights of reasonable visitation. This decree set out Mother's visitation rights with the children in detail.

Specifically, the trial court awarded Mother visitation with the boys on alternate weekends, on alternating holidays, during half of the Christmas holiday, and for fourteen consecutive days in each of the months of June, July, and August. Father had custody on the other fourteen days of the summer months. The decree also specified that each parent was responsible for half of the transportation for visitation. Mother was to pick up the boys at the beginning of her visitation, and Father was to transport the boys home at the end of visitation.

In October of 1991, Mother filed a motion to modify the dissolution decree. She argued that the dissolution decree was now unreasonable because Father had moved from Jefferson City to Scott City, 270 miles away. This move resulted in increased transportation time and cost from her home in Columbia due to the additional 270 miles. Therefore, Mother argued, the increased cost, distance, and time involved in visitation rendered her rights meaningless.

Specifically, she alleged that the alternative weekend visitation was not workable. She requested weekend visitation when the boys were off from school on Mondays or Fridays, visitation during the spring, Thanksgiving and Christmas recesses, and ten consecutive weeks of visitation in the summer. In addition, Mother requested that Father be made responsible for transportation to and from Mother's home.

Father answered with a cross-motion requesting the trial court to restrict Mother's visitation. The cross-motion included several allegations concerning Mother's use of controlled substances, her cohabitation with a male friend while the children were visiting, and her frequent patronage of bars. In her response, Mother denied these allegations and requested that custody of the boys be transferred to her.

The court appointed as guardian ad litem, Christina Neff, who had served as guardian ad litem in the original custody proceeding. After three days of testimony and evidence on the motions for modification, Ms. Neff recommended: (1) Father's retention of legal custody; (2) no award of joint legal custody due to the parents' inability to get along; (3) ten weeks of visitation with Mother during the summer; (4) one three-day weekend a month of visitation with Mother, preferably to coincide with school holidays; (5) visitation rights for Father during Mother's summer visitation; (6) no child support for Father; and (7) transportation provided by Father unless visitation occurs in the Cape Girardeau area and when Mother picks up and redelivers the boys for summer visitation.

The trial court entered an order and judgment of modification on December 28, 1994. The court found that Father's move to Scott City was a substantial and continuing change that required a modification of the prior decree. The modification order maintained Father's status as the sole legal custodian, granted mother visitation rights on one weekend or holiday per month, and left the prior provisions for transportation in effect. Mother could also have visitation on an additional weekend every two months, so long as the visitation occurred in the Scott City area. The order did not mention summer visitation. Mother filed a timely appeal from this order.

Mother's first point on appeal claims that the trial court erred by failing to provide for summer visitation in the modification order. She argues that the failure to address summer visitation created ambiguity because it left the order open to three possible interpretations. First, it could mean that the prior summer visitation provisions remained valid and unchanged. Second, it could mean that Mother was not to receive any summer visitation at all. Third it could indicate that the court mistakenly left out a modification of summer visitation. This last possibility is supported by the fact that the order's paragraph 2, which addresses weekend visitation, is followed by a paragraph 6, which requires the parents to provide each other with a current address and phone number. The order contains no paragraphs with the numbers 3, 4, or 5. In the alternative, Mother claims that the trial court's order was against the weight of the evidence or misapplied the law.

The standard of review for this case is found in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). This court will affirm the trial court's order of modification 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. In matters concerning visitation rights, this court gives great deference to the trial court's decision. In re Snoke, 913 S.W.2d 407, 409 (Mo.App.1996).

The trial court may modify visitation rights if such a modification would serve the best interests of the children. § 452.400.2, RSMo 1994. 1 The standard for modifying visitation is the same "best interests" standard which applies to a trial court's modification of a custody decree under § 452.410.1. Pulliam v. Sutton, 728 S.W.2d 252, 253 (Mo.App.1987). Under that statute, the trial court will not modify a prior dissolution decree unless "it finds, upon the basis of facts that have arisen since 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. A change of circumstances may occur within the meaning of § 452.410.1 when a custodial parent moves a considerable distance from the noncustodial parent's residence. Rice v. Shepard, 877 S.W.2d 229, 231 (Mo.App.1994); Adams v. Adams, 812 S.W.2d 951, 956 (Mo.App.1991).

Here, there was sufficient evidence to support the trial court's finding that a change in the circumstances of the parties had occurred and that a modification of visitation would serve the best interests of the children. Father had moved to Scott City, which was 204 miles further from Mother's residence in Columbia than his previous home in Jefferson City. As a result, traveling time between Father's residence in Scott City and Mother's home in Columbia increased to nearly five hours each way. Such a distance impedes Mother's visitation rights and "undoubtedly diminish[es] the quality of any time spent together and may well engender deep resentment on the part of the child, the parent or both." McElroy v. McElroy, 910 S.W.2d 798, 805 (Mo.App.1995) (quoting Riley v. Riley, 904 S.W.2d 272, 279 (Mo.App.1995)). See also Hord v. Morgan, 769 S.W.2d 443, 449 (Mo.App.1989). In addition, the parties agreed that Father's move created the need for a modification.

Since these facts demonstrate a sufficient change of circumstances to permit modification of the dissolution decree, this court must determine whether the terms of the modified order are erroneous. Mother first argues that the order of modification is ambiguous because in its original order the trial court provided for summer visitation, and its failure to mention summer visitation in the modification creates an ambiguity. A modification order is a new judgment based on new evidence, however, and it replaces the original decree of dissolution with respect to the provisions modified. See Spangler v. Spangler, 831 S.W.2d 256, 261 (Mo.App.1992). In this case, the trial court created a new visitation schedule, thereby replacing the original provisions. Since a modification is a new judgment, this court does not interpret it with reference to the original dissolution decree, unless it expressly refers to or incorporates the provisions of the prior decree.

The modification order is very specific concerning Mother's visitation rights. In this order, the trial court granted Mother one period of "weekend" visitation in eight of the nine months of the school year and provided for an additional weekend of visitation every two months. Many of the specifically designated "weekends" are extended due to holidays. The order did not grant Mother any summer visitation. The order of modification reads:

1. Respondent continue to be the sole legal custodian:

2. Petitioner have weekend visitation, subject to change by the parties by agreement only, as follows:

a. One weekend per month in each month, as follows: February, Presidents' Day weekend: March, third weekend of the month: April, Easter weekend: May, Mother's Day weekend: September, Labor Day weekend: October, third weekend: November, Thanksgiving Day vacation, in alternating years to include Thanksgiving Day, in other years not to so include: and December, December 26 through the day before school begins in alternate years, from December 24 in other years: should weather or the...

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