Edmison ex rel. Edmison v. Clarke
Decision Date | 31 March 1999 |
Docket Number | No. WD,WD |
Citation | 988 S.W.2d 604 |
Parties | Matthew James EDMISON, A Minor Child, By His Next Friend, Brian James EDMISON; and Brian James Edmison, Individually, Appellants, v. Betsy Robin CLARKE, Respondent. 55733. |
Court | Missouri Court of Appeals |
Stephen Charles Scott, Columbia, for appellants.
Douglas F. Pugh, Columbia, for respondent.
Before Chief Judge PATRICIA BRECKENRIDGE, Presiding Judge PAUL M. SPINDEN and Judge LAURA DENVIR STITH.
Brian James Edmison (hereinafter "Father") appeals the trial court's award of custody of Matthew James Edmison (hereinafter "Matthew") to his mother, Betsy Robin Clarke (hereinafter "Mother"), arguing the trial court erred by applying the wrong standard for an initial award of custody in that the court erroneously either applied the standard for a modification action or otherwise placed the burden on Father to show a change of circumstances in order to change custody from Mother to Father, without considering the other statutorily-mandated factors. He also argues the trial court erred by not granting a specific visitation schedule despite his request for one, and where the evidence showed that the absence of such a schedule effectively deprived him of meaningful visitation. We agree that the trial court erred in failing to consider all relevant factors in awarding custody and in failing to order a specific visitation schedule. Father also argues that the court erred in adopting Mother's Form 14 because it failed to include certain mandatory deductions, and that it erred in making the child support award retroactive to a date prior to the date Mother filed her Counter-Petition. We find both points meritorious. Reversed and remanded for further proceedings in accordance with this opinion.
The testimony presented at trial revealed the following facts:
Father first came to Columbia, Missouri from Virginia to attend the University of Missouri. At the time of trial, he was no longer attending college and had been working for over three years as a sports reporter at the Columbia Tribune, earning approximately $20,200.00 annually. Mother and Father met while working on the campus newspaper and started dating and having sexual relations in October 1994. In early 1995, Mother was dating both Father and another man, Rehan Hyder, who lived in her dormitory. Eventually, Mother and Father dated exclusively and moved in together.
In March 1996, Mother discovered she was pregnant. After an initial shock, both Mother and Father accepted the pregnancy and both were very happy when Matthew was born on November 16, 1996 in Boone County, Missouri. From the time he was born until August 22, 1997, Matthew resided in Columbia, Missouri with both Mother and Father. Mother worked as a receptionist earning $14,400.00 annually. Mother and Father argued frequently, and Mother said she became concerned about raising Matthew in an argumentative environment.
Mother considered moving to Portland, Oregon in June 1997, but Father convinced her to stay. The situation apparently did not improve, and, on August 21, 1997, Father received an anonymous phone call telling him Mother still planned to move out. He confronted Mother with this information, but she denied she was planning to move out. In fact, however, she did move out and leave Columbia, taking Matthew with her, the next day, August 22, 1997. According to Father, Mother did not call him to tell him where she and Matthew were until almost a week after they left. According to Mother, she called him the night she left or the very next night.
Father attempted to reestablish the relationship with Mother, but she was not interested. Mother moved into an apartment in Portland, Oregon with her old boyfriend, Rehan Hyder. Mother said her relationship with Mr. Hyder was initially platonic, but admitted that a romantic relationship later developed. At the time of the hearing below, Mother, Mr. Hyder and Matthew lived in a studio apartment in Portland. Matthew does not have his own room but does have his own bed. Mother currently works in the Portland area as a personnel consultant with an estimated annual salary of $30,000.00. Mother is originally from Macon, Missouri, and has family there.
Father filed a Petition for Declaration of Paternity and seeking custody on September 4, 1997. Mother filed a counter-Petition for custody on October 30, 1997. While these Petitions were pending, Mother and Father made arrangements for Father to have Matthew for one week after Thanksgiving in 1997 when Mother was back in Missouri for the holiday. Father assured Mother he had airplane tickets for himself and Matthew and that he would not try to keep Matthew because the legal process was already under way to resolve custody. Mother wanted Father to produce the plane tickets and sign some sort of affidavit, however. When Father did not do so, she refused to let him take Matthew. Angry at this turn of events, Father kicked down the door of Mother's parents house in Macon, resulting in property damage charges which Father has resolved and for which he has made restitution. Father flew to Portland as he had planned the weekend after Thanksgiving, where he was able to see Matthew for a few hours. However, this visit was the only time Father has been able to see Matthew.
From the time Mother left with Matthew, Father asked her to permit him to visit with Matthew. He has been permitted no other visits in Missouri or Oregon, although due to the costs of travel he has not attempted to visit Oregon often.
Father has continuously tried to maintain telephone contact with Matthew. At first, Father and Mother talked almost daily. As time went on, Mother failed to cooperate and the calls became less frequent. On one occasion, Mother apparently did not tell Father that Matthew had been sick until well after the fact, and Mother failed to send Father day care class photographs for which Father had sent Mother the money. Father testified that he is concerned that Matthew will forget who Father is because Mother is living with another man.
At the close of the hearing on the issue of custody, the court announced from the bench that both Mother and Father were the parents of Matthew, 1 and that both were suitable persons to have custody of Matthew; but that "it would not be in the best interests of [Matthew] to make a change in his custody at this time." (emphasis added). He therefore granted sole custody of Matthew to Mother. He adopted Mother's First Amended Form 14, pursuant to which he ordered that Father pay $551.00 per month in child support. He ordered the child support retroactive to August 12, 1997, which is the date Mother moved to Oregon. Counsel for Father requested the court to order a specific visitation schedule, but the court simply refused to set one, stating as his rationale that, while the request for a written visitation schedule was within the scope of Father's pleadings, In accordance with this statement, the court's handwritten docket entry did not set out a specific visitation schedule, but rather simply stated that Mother has legal and physical custody of Matthew subject to right of "reasonable visitation" of Father. Father appeals.
We will affirm a trial court's award of custody unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Murphy v Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Welker v. Welker, 902 S.W.2d 865, 867 (Mo.App.1995). "The trial court has broad discretion in child custody matters, and we will affirm its decision unless we are firmly convinced that the welfare and best interests of the children requires otherwise." Flathers v. Flathers, 948 S.W.2d 463, 465 (Mo.App.1997), citing Replogle v. Replogle, 903 S.W.2d 551, 554 (Mo.App.1995).
Father argues that the trial court erred in awarding sole custody to Mother because the court applied the standard for a modification of custody rather than for an initial determination of custody as was sought here, or in any event improperly put the burden on him to show that a change of custody would be in the child's best interests, whereas in fact he bore no such burden and whereas the court should have considered all of the relevant statutory factors under Section 452.375. 2 Father bases this argument on the fact that, in awarding custody to Mother, the court made only the single finding that "[I]t would not be in the best interests of [Matthew] to make a change in his custody at this time." (emphasis added).
We agree with Father that a different standard is applied when making an initial custody determination than when determining whether to modify custody. In a modification proceeding, the court determines whether, based on facts that have arisen since or were unknown at the time of the prior decree, a substantial change has occurred in the circumstances of the child or the child's custodian. Once it determines that a substantial change of circumstances has occurred, then the court must consider whether, in light of this change of circumstances, a modification is necessary to serve the best interests of the child. § 452.410; Baumgart v. Baumgart, 944 S.W.2d 572, 575-76 (Mo.App.1997).
By contrast, the initial determination of custody is made based on consideration of the eight factors set out in Section 452.375, not based on who happens to have actual custody of the child from the time of separation until the judge makes the custody determination. Those eight factors are:
(1) The wishes of the child's parents as to his custody;
(2) The wishes of a child as to his custodian;
(3) The interaction and interrelationship of the...
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