Erickson v. Blackburn

• Decision Date: 01 June 2005
• Docket Number: No. 26128.,26128.
• Parties: Donald G. ERICKSON, Petitioner-Respondent, v. Barbara L. BLACKBURN, Respondent-Appellant.
• Court: Missouri Supreme Court

Page 69

169 S.W.3d 69

Donald G. ERICKSON, Petitioner-Respondent, v. Barbara L. BLACKBURN, Respondent-Appellant.

No. 26128.

Missouri Court of Appeals, Southern District, Division One.

June 1, 2005.

Petition for Rehearing and Transfer Denied June 17, 2005.

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James R. Sharp, Sharp & Bredesen, Springfield, MO, for Appellant.

Carolyn G. Buschjost, Ronald D. White, Williams, Robinson, White, Rigler & Buschjost, P.C., Rolla, MO, for Respondent.

JAMES K. PREWITT, Judge.

Barbara L. Blackburn ("Appellant") appeals a Judgment of Modification filed October 17, 2003, by the Circuit Court of Pulaski County, awarding "primary physical custody" of the minor child of the parties to Donald G. Erickson ("Respondent").¹

Facts

Viewed in a light most favorable to the judgment, the facts of the case are as follows. On January 26, 1998, the marriage between Respondent and Appellant was dissolved and an "absolute divorce" granted by the General Court of Justice in Cumberland County, North Carolina. A daughter, Devin Elizabeth Erickson ("Devin"), had been born of the marriage on September 24, 1991. Pursuant to the judgment, the parties were awarded joint custody with Appellant to have "primary physical custody" and Respondent granted "secondary physical custody and reasonable visitation rights." In addition, Respondent was required to provide $300.00 per month in child support payments.²

At the time of the divorce, the couple lived in Fayetteville, North Carolina. Shortly afterward, Respondent, an officer in the United States Army, attended schools at Fort Benning, Georgia, and Fort McClellan, Alabama, and then was stationed in Fort Lewis, Washington. Appellant moved with Devin to South Carolina.

Devin suffers from two medical conditions, a cleft palate, which causes speech problems, and encopresis, an enlarged colon which causes involuntary soiling. While in South Carolina, Devin received treatment at a craniofacial clinic for the speech impediment. Personnel at the clinic suggested that Devin see a counselor to deal with social problems caused by her medical conditions. Counseling was recommended because Devin was extremely resistant to going to school and often tardy or absent. This was because the other children teased her about her speech impediment, as well as her soiling her clothes. In spite of counseling, Devin's school record continued to suffer. Her third-grade report card indicated that she had five tardies the first quarter, eight the second quarter, eighteen the third quarter, and twenty-three in the last quarter. Her excessive number of tardies and absences affected her grades; indeed, she was at risk of failing math, her first class of the day.

In July, 2001, while Devin was visiting her father for the summer, Appellant moved to Florida where she got a job waiting tables at night. When she brought Devin to Florida in August, Appellant quit that job so Devin "would not suffer," but then had trouble finding another one. Appellant's financial situation was very difficult since she received only $300.00 a month in child support, could not find a job in her field, and Devin's medical conditions necessitated that Appellant miss a lot of work "to take her to doctor's visits, and school conferences."

Respondent testified that in mid-September, 2001, Appellant phoned him, said that she could not take care of Devin anymore, and asked him to arrange to have Devin picked up. Appellant testified that she called Respondent and told him about her problems securing employment, but that it was Respondent who felt it would be best for Devin for her to live with her father. It was contested at trial whether there had been an agreement as to when Devin was to return to her mother's care; Respondent denied that any agreement had been reached while Appellant insisted that they agreed Devin was to be returned immediately following the school year. In any case, Respondent arranged for his sister to meet Appellant halfway, pick Devin up, and take her to Virginia. Respondent was in the midst of a change of station to Fort Leonard Wood, Missouri, so his current wife drove to Virginia to pick up the child and brought her to Missouri.

At the end of May, 2002, Appellant phoned Respondent and indicated that she wanted to buy a plane ticket so that Devin could fly back to Florida to rejoin her. Respondent testified that he told Appellant not to bother because he was filing for custody. This he did on May 13, 2002, in the Circuit Court of Pulaski County, Missouri.

On June 21, 2002, the Circuit Court of Pulaski County heard Respondent's motion seeking temporary custody of Devin. On the same date, the court entered its order awarding Respondent temporary custody and abating his child support obligation, setting out a visitation schedule for Appellant, and granting Respondent permission to relocate to Fort Drum, New York. A "Judgment and Order of Temporary Custody, Visitation and Relocation" was filed on July 12, 2002, reflecting that earlier order. Respondent moved to New York in August, 2002, with his current wife and Devin.

While the parties were preparing for trial, Appellant took Devin to two different counselors for a total of four interviews to determine Devin's wishes as to which parent she preferred to live with. Appellant, through her attorney, hired a social worker in Florida to conduct a home study of Appellant's house. As part of the study, Devin, along with Appellant and her current husband, were interviewed. In addition, Devin was interviewed alone two more times, with the primary purpose of those interviews to determine Devin's custodial preference. The social worker testified that he did not believe his questions had any detrimental effects on Devin.

Before trial, Respondent's unit was deployed to Afghanistan. In mid-August, about a month before trial, Respondent discovered that his unit was to be deployed. He learned of the orders through word of mouth and, since he had received no written orders, he contacted his commander to see how this would impact him and his situation with the upcoming trial. His commander assured him that he would not be "brought forward" until his family situation was settled.

At trial, Respondent testified that, although it was possible he may be deployed after the situation with his family was resolved, his deployment was in no way imminent or even certain. Although his unit had officially been deployed, not all members of the unit were sent. In addition, he had been left in charge of shipping equipment from Fort Drum to Afghanistan, and his commander told him he would not be "going forward" until all the equipment had been shipped. His unit was expected to return to New York in January or February of 2004, so it was altogether possible that he would never need to leave the country.

Respondent testified that he believed that, even in the event of his deployment, it would be in Devin's best interest to remain in New York with her step-mother and infant half-brother. He believed that it was important that Devin's life remain stable, keeping the same home, same school, and same friends.

Appellant indicated at trial that she was fearful that Respondent would be deployed and Devin would be in the care of a non-parent. Appellant testified that, even if Respondent were granted custody, she wanted the parenting plan to require that if Respondent were deployed for longer than thirty-one days, Devin would come live with her. Appellant stated she would be willing to wait until the end of a semester for the change in living arrangements but would not wait until the end of the school year. Appellant was concerned that Devin would not be in the care of either of her natural parents, and that that would make her feel scared and uncertain.

On September 15, 2003, a trial was held in Pulaski County Circuit Court before the Honorable John D. Wiggins. The trial court filed its judgment of modification, findings of fact and conclusions of law on October 17, 2003. Appellant contends that the court's decisions were against the weight of the evidence and therefore erroneously declare or apply the law.

Standard of Review

The appellate court will affirm the judgment of the trial court unless it lacks substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Suffian v. Usher, 19 S.W.3d 130, 136 (Mo.banc 2000). We view all evidence and inferences drawn therefrom in a light most favorable to the judgment. Id. In addition, in a custody matter, this Court gives even greater deference to the trial court than in other matters. Id.

Appellant presents six points on appeal. Points I through IV contend that the trial court erred in modifying the original custody arrangement. Claims of error include the court's failure to make the required statutory findings, failure to interview the child, not having sufficient evidence to find a substantial and continuing change in circumstance in either Appellant's or Devin's situation, and that the court erred in finding the custody change to be in Devin's best interest. In Points V and VI, Appellant avers that the court should not have ordered retroactive child support for Respondent, nor should it have awarded Respondent any attorney's fees.

Point I

Appellant contends that the trial court erred as a matter of law in that it failed to make specific findings on all of the statutory factors set forth in § 452.375.2, as required by § 452.375.6, in particular the wishes of the minor child as to her custodian and the intentions of the parties to relocate the principal residence of the child.³

In order to modify a prior custody agreement, there is a two-pronged test the court must meet. In re Marriage of Copeland, 148 S.W.3d 327, 329 (Mo.App.2004). The trial court must find first there has been a substantial change in circumstances of the custodial parent or the child,...