Fortner v. Fortner
Decision Date | 12 July 2005 |
Docket Number | No. WD 64569.,WD 64569. |
Citation | 166 S.W.3d 615 |
Parties | James M. FORTNER, Appellant, v. Amanda Kay FORTNER, Respondent. |
Court | Missouri Supreme Court |
William J. Daily, Glasgow, MO, for appellant.
Tonnie M. Martin, Jefferson City, MO, for respondent.
Before: EDWIN H. SMITH, C.J., and HOWARD and HOLLIGER, JJ.
James Fortner appeals the judgment of the Circuit Court of Howard County modifying its child custody order, pursuant to § 452.410.1,1 granting his former wife, Amanda Fortner (respondent), sole physical custody of the parties' three minor children. In its dissolution decree of August 26, 2002, the trial court awarded the parties joint physical custody of the children. On February 26, 2003, the trial court awarded temporary sole physical custody to the respondent, due to the appellant's military service in Iraq. Upon his return from Iraq, the appellant filed a motion to restore the original custody arrangement, while the respondent filed a motion to modify, seeking permanent sole physical custody of the children. On August 2, 2004, the trial court sustained the respondent's motion and overruled the appellant's.
The appellant raises six points on appeal. In Point I, he claims the trial court erred in sustaining the respondent's motion to modify because, in doing so, it misapplied § 452.410.1, by basing its required finding of changed circumstances on facts that arose before the prior decree was entered and were known to the court at the time of the prior decree. In Point II, he claims the trial court erred in sustaining the respondent's motion because the evidence was insufficient to support the required finding of changed circumstances. In Point III, he claims the trial court erred in sustaining the respondent's motion because, in doing so, it misapplied §§ 452.410.1 and 452.375 by failing to consider, as required, in determining whether the modification was in the best interests of the children, the factors of § 452.375.2 and by failing to make detailed written findings regarding those factors, as required by § 452.375.6. In Point IV, he claims the trial court erred in sustaining the respondent's motion to modify because the evidence was insufficient to support the requisite finding that the respondent's proposed custody arrangement was necessary to serve the best interests of the children. In Point V, he claims the trial court erred in sustaining the respondent's motion to modify because, in doing so, it misapplied § 452.375.5 by failing to consider alternative parenting plans as authorized by that section. In Point VI, he claims the trial court erred in overruling his motion to restore the original custody arrangement because his evidence supported the sustaining of his motion.
We reverse and remand.
The parties were married on August 13, 1994, in Keytesville, Missouri. Three children were born of the marriage: Grace, born July 22, 1997; Charles, born August 4, 1998; and Lillian, born November 12, 2000. The parties' marriage was dissolved by the Circuit Court of Howard County on August 26, 2002. In the dissolution decree, the court, in accordance with the parties' separation agreement, awarded them joint legal and physical custody of the children.
On February 21, 2003, the respondent filed a "MOTION FOR TEMPORARY CUSTODY." In her motion, she alleged that the appellant, a member of the National Guard, "ha[d] received notification that his unit will be deployed [to Iraq] on February 27, 2003." Consequently, she requested that the court "grant [her] temporary physical custody ... for all time periods of [the appellant's] active duty in the military service of the United States, and for all other orders as the Court deems proper under the circumstances." On February 26, 2003, the court issued a "JUDGMENT AND DECREE OF MODIFICATION OF JUDGMENT AND DECREE OF DISSOLUTION OF MARRIAGE FOR TEMPORARY CHANGE IN CHILD CUSTODY," indicating that the respondent's "motion for temporary custody is heard and sustained."
On January 9, 2004, the appellant returned from Iraq. On January 27, 2004, he filed a motion to restore the original custody arrangement. On March 5, 2004, the respondent filed her answer to the appellant's motion, as well as a motion to modify, seeking permanent sole physical custody of the children.
On May 13, 2004, the parties' competing motions were taken up and heard by the trial court. On May 27, 2004, the court issued what it entitled "MEMORANDUM/FINDINGS," in which it made findings of fact and conclusions of law and ordered that: On August 2, 2004, the trial court entered its judgment modifying its child custody order, granting the respondent sole physical custody of the minor children. The court did not incorporate its May 27, 2004, memorandum into its judgment.
This appeal followed.
Our review of a court-tried case involving matters of custody is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). In re Marriage of Eikermann, 48 S.W.3d 605, 608 (Mo.App.2001). We will affirm the judgment so long as it is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law. Id.
In Point I, the appellant claims the trial court erred in sustaining the respondent's motion because, in doing so, it misapplied § 452.410.1, by basing its required finding of changed circumstances on facts that arose before the prior decree was entered and were known to the court at the time of the prior decree. Specifically, he claims that the trial court's February 26, 2003, order of temporary custody constituted the trial court's prior decree for purposes of § 452.410.1 and that the court's finding of changed circumstances was based upon facts, known to the court, that arose before that order was entered. We disagree.
Under Rule 75.01,2 "[t]he trial court retains control over judgments during the thirty-day period after entry of [the] judgment[.]" Any attempt by the trial court to retain jurisdiction beyond that thirty-day period is without effect. Lacher v. Lacher, 785 S.W.2d 78, 81 (Mo. banc 1990). Consequently, once a judgment of dissolution of marriage becomes final, "a motion to modify under RSMo § 452.410 is required to bring custody of the children under the jurisdiction of the trial court." T.L.I. v. D.A.I., 810 S.W.2d 551, 554 (Mo.App.1991) (citing Lacher, 785 S.W.2d at 81). In that regard, § 452.410.1 provides:
Except as provided in subsection 2 of this section, the 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. Notwithstanding any other provision of this section or sections 452.375 and 452.400, any custody order entered by any court in this state or any other state prior to August 13, 1984, may, subject to jurisdictional requirements, be modified to allow for joint custody in accordance with section 452.375, without any further showing.
Hence, assuming jurisdiction, in a modification proceeding the court's determination is two-fold: (1) was there a substantial change in circumstances; and, (2) if so, are the best interests of the child served by modifying custody? Heslop v. Sanderson, 123 S.W.3d 214, 218 (Mo.App.2003); Love v. Love, 75 S.W.3d 747, 762 (Mo.App.2002). Unless the trial court finds the requisite substantial change of circumstances, it never reaches the best interests issue. Mallett v. Mallett, 63 S.W.3d 300, 302 (Mo.App.2001); Brethorst v. Brethorst, 50 S.W.3d 864, 867 (Mo.App.2001).
Here, the trial court's judgment modifying the parties' custodial arrangement was prompted by the respondent's motion to modify, brought pursuant to § 452.410.1, such that jurisdiction was proper. In its judgment, the trial court found that both prongs of § 452.410.1 had been met, explaining that "[s]ince the date of the Judgment and Decree of Dissolution of Marriage there have been changes in the circumstances regarding the custodial parents and the minor children and a modification is necessary to serve the best interests of the children." As to the first prong, changed circumstances, the judgment reads:
13. The changes include:
a. The Petitioner, James M. Fortner, was deployed into active duty in the military in February, 2003, and was gone for more than 10 months and was unable to provide custodial care for the children, resulting in [the respondent] having sole responsibility and providing custodial care for the minor children for 15 months of the 21 months since the Judgment and Decree of Dissolution of Marriage.
b. The [appellant] is now employed at a full-time position with the Department of Corrections wherein he works second shift from approximately 3:30 p.m. until 11:30 p.m. Wednesday through Sunday each week, making [the appellant] unavailable for the minor children in the evenings and weekends when they are not in school or daycare, resulting in the major responsibility for raising the children falling on babysitters and day care providers if [the appellant] had primary physical custody; and [the appellant] does not have in place a well-defined plan to assist him in providing the necessary care for the children while he is at work.
c. [The respondent], Amanda K. Fortner's situation has improved and she provides a stable home for the children in that she now resides in a home sufficiently large...
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