Hamer v. Nicholas

• Decision Date: 28 March 2006
• Docket Number: No. WD 65183.,WD 65183.
• Citation: 186 S.W.3d 884
• Parties: Donna Lynn HAMER, Respondent, v. Steven Todd NICHOLAS, Appellant.
• Court: Missouri Court of Appeals

186 S.W.3d 884

Donna Lynn HAMER, Respondent, v. Steven Todd NICHOLAS, Appellant.

No. WD 65183.

Missouri Court of Appeals, Western District.

March 28, 2006.

Craig D. Ritchie, Jane Carmichael Sachs, Co-Counsel, St. Joseph, MO, for appellant.

Donna Lynn Hamer, Cameron, MO, pro se.

Before HAROLD L. LOWENSTEIN, Presiding Judge, JOSEPH M. ELLIS, Judge and THOMAS H. NEWTON, Judge.

JOSEPH M. ELLIS, Judge.

Stephen Nicholas ("Father") appeals from a judgment entered in the Circuit Court of Clinton County denying his motion to modify its prior decree granting joint physical and legal custody of his child, Danielle, to Father and the child's mother, Donna Hamer ("Mother"). In denying Father's request that he be granted sole physical custody of Danielle, the circuit court found that there had not been a substantial change in the circumstances of the child or either custodial parent to warrant considering modification of custody. Because this finding is against the weight of the evidence, the cause must be reversed and remanded to the circuit court for further proceedings.

Father and Mother were married January 17, 1997. The couple's only child, Danielle, was born on May 15, 1998. Mother subsequently filed a petition for dissolution of marriage, and on December 4, 1998, the circuit court entered its judgment dissolving the marriage. The court awarded Father and Mother joint legal custody over Danielle, but awarded Mother "primary physical custody" with Father being granted visitation.

On December 13, 2001, the circuit court granted a motion to modify custody filed by Father and awarded joint legal and physical custody of Danielle to Father and Mother. The parenting plan adopted by the court called for Danielle to spend alternating one-week periods with each parent.¹

On March 24, 2004, Father filed his Motion to Modify Judgment of Modification in which he asked the court to award him sole physical custody of Danielle. Father's motion was heard on August 3 and November 15, 2004.²

On January 31, 2005, the circuit court entered its judgment denying Father's motion. In so doing, the court found that Father "has failed to prove that there has been a substantial and continuing change in the circumstances of the parties and the minor child such that a modification of the prior Judgment would be required for the best interest of the minor child."

In his sole point on appeal from the circuit court's judgment, Father contends that the court erred in finding that a significant change had not occurred in the circumstances of the child. Father further contends that the record establishes that modification was necessary to protect the best interests of the child.

"Our review of a judgment modifying child custody is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976)." Johnson v. Lewis, 12 S.W.3d 379, 382 (Mo. App. W.D.2000). "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 reviewing the trial court's judgment, we must view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the trial court's judgment and disregard all evidence and inferences to the contrary. St. Lawrence v. St. Lawrence, 109 S.W.3d 225, 226-27 (Mo.App. E.D.2003).

"We give greater deference to the trial court in child custody cases than in other types of cases because the trial court is in the best position to judge the credibility of the parties, their sincerity, character, and other intangibles which may not be revealed by the record." In re Marriage of Parmenter, 81 S.W.3d 234, 242 (Mo.App. S.D.2002) (internal quotation omitted). "`This court will not disturb the trial court's determination of custody unless it is manifestly erroneous and the welfare of the children demands a different result.'" Spire v. Adwell, 36 S.W.3d 28, 31 (Mo.App. W.D.2000) (quoting Hicks v. Hicks, 969 S.W.2d 840, 843 (Mo.App. W.D.1998)). "`The judgment must be affirmed under any reasonable theory supported by the evidence and should be set aside only upon a firm belief that the trial court's judgment was incorrect.'" Wallace v. Chapman, 64 S.W.3d 853, 858 (Mo. App. W.D.2002) (quoting Baumgart v. Baumgart, 944 S.W.2d 572, 575 (Mo.App. W.D.1997)).

"`Under § 452.410.1, a court may not modify a prior custody decree unless it finds, on the basis of facts which have arisen subsequent to [that] decree, that (1) a change has occurred in the circumstances of the child or his custodian and (2) a modification of custody is in the best interests of the child.'"³ Spire, 36 S.W.3d at 31 (quoting Mobley v. Phillips, 942 S.W.2d 399, 400-01 (Mo.App. W.D. 1997)). The Missouri Supreme Court has determined that the change in circumstances required by this statute must be "substantial" in nature. Searcy v. Seedorff, 8 S.W.3d 113, 117 (Mo. banc 1999). "[T]he parent requesting the change of custody has the burden of proving the change in circumstances warranting custody modification." Bather v. Bather, 170 S.W.3d 487, 493 (Mo.App. W.D.2005). Thus, in ruling on a motion to modify custody, the trial court must first determine whether the evidence establishes that a substantial change has occurred in circumstances of the child or the child's custodian and, if so, it must then consider whether the best interests of the child would be served by modifying custody. Fortner v. Fortner, 166 S.W.3d 615, 618 (Mo.App. W.D.2005).

"In making its determination of best interest, section 452.375 requires that the court consider the public policy stated in section 452.375.4 and the eight statutory factors included in section 452.375.2." Cerutti v. Cerutti, 169 S.W.3d 113, 115 (Mo.App. W.D.2005). "Section 452.375 further requires in subsection 6 that, when child custody is contested, written findings be made in the judgment based on the public policy and the eight factors." Id. "Section 452.375.6 does not require written findings for all eight statutory factors, but it does require written findings of all relevant factors be included in the opinion." Id. (emphasis omitted).

In the case at bar, the trial court found that there was no substantial change in the circumstances of the child or either of the custodial parents and did not consider or make findings on the statutory factors contained in § 452.375.2. Thus, its judgment rested entirely upon a finding that no substantial change had occurred in the circumstances of the child or either custodial parent.⁴ Our inquiry is, therefore, limited to whether the circuit court properly determined that Father failed to establish that a substantial change had occurred in the circumstances of the Danielle or one of her custodial parents.⁵

Having thoroughly reviewed the record, we are left with a firm and definite impression that the circuit court's finding that no substantial change occurred in the circumstances of the child or either custodial parent is against the weight of the evidence. While the circuit court was clearly entitled to disregard as uncredible testimony by Father and Danielle's therapist that Danielle had made certain allegations about Mother's husband,⁶ the weight of the uncontroverted evidence offered by both Father and Mother at trial sufficiently established a substantial change in the circumstances of the Danielle and Mother to warrant consideration of whether a change of custody would be in Danielle's best interests.

The evidence presented by both parents reflected that, since the circuit court's joint custody determination in December 2001, Danielle had developed a significant bedwetting problem. Furthermore, both parents acknowledged that they have been unable to agree about how to address this problem and were taking different approaches in each of their homes. Both parents also acknowledged that Danielle had been having nightmares.

The evidence reflects that Father took Danielle to see a therapist without the knowledge or consent of Mother and that Danielle continued to see the therapist for approximately one year before Mother found out. The testimony of both Mother and Father reflected an ongoing dispute between them over whether Danielle should continue to receive therapy.

Mother and Father also both offered testimony indicating that they were generally having difficulty communicating with each other and making decisions regarding Danielle. "`In a joint custody situation, breakdown of parental communication and cooperation is sufficient, in and of itself, to constitute a change in circumstances.'...