Haus-Gillespie v. Gillespie
| Decision Date | 17 August 1999 |
| Docket Number | No. WD,R,HAUS-GILLESPI,WD |
| Citation | 998 S.W.2d 842 |
| Parties | Linda Bethespondent, v. Roger Mark GILLESPIE, Appellant. 56084. |
| Court | Missouri Court of Appeals |
Lorri Kline, Columbia, for appellant.
Gwendolyn S. Froeschner, Columbia, for respondent.
Before: EDWIN H. SMITH, P.J., and HANNA and SPINDEN, JJ.
Roger Gillespie appeals the judgment of the circuit court overruling his motion to modify the decree of dissolution of marriage dissolving his marriage to the respondent, Linda Haus-Gillespie. In his motion, the appellant requested a change of the primary physical custody of the parties' minor child, Carl, from the respondent to him.
In his sole point on appeal, the appellant claims that the trial court erred in denying his motion to modify custody on the basis that he failed to demonstrate that, since the prior custody decree was entered, a substantial and continuing change had occurred in the circumstances of the respondent and/or the minor child, as required by § 452.410 1 to modify custody.
We affirm.
The parties were married on May 18, 1991. Their only child, Carl, was born on December 7, 1992. They separated on September 11, 1995. Their marriage was dissolved in the Circuit Court of Boone County on August 23, 1996, with the parties, pursuant to the "Joint Custody Agreement," approved by the trial court and incorporated in the decree, receiving joint legal custody of Carl and the respondent receiving primary physical custody with visitation to the appellant.
After the parties separated, but before the decree of dissolution, the respondent, who worked at the time, and still does, for the Division of Family Services (DFS), began providing respite care for foster care children through the DFS and the Division of Youth Services (DYS). The foster care children through the DYS usually have criminal records, but have been approved for residential settings. The children are usually placed in respite care for up to two days per month and for an additional period of fourteen vacation days per year when their foster families need to leave the state or take a vacation.
The respondent has complete discretion in approving the foster care children she accepts into her home and never accepts children who have behavior disorders, have been sexually abused, or have not previously spent time with a foster family. She has never left Carl home alone with a foster care child. On one occasion, Carl was playing with a foster care child who accidentally kicked him. However, he did not sustain any serious or permanent injury from being kicked.
The respondent makes approximately $100 per month providing respite care and feels that the foster care children have a positive effect on Carl. In order to be a respite care provider, the respondent had to sign a confidentiality agreement whereby she could not discuss the specific details about the foster care children in her care with others. Thus, although she has told the appellant general information about the kind of foster care children that she accepts into her home, she could not provide him with any specific information.
On October 8, 1997, the appellant filed a "Motion for Contempt and Motion for Order to Show Cause and for Injunctive Relief," requesting, in part, that the respondent be ordered to cease providing respite care services for foster care children when Carl was present in her home. He alleged that the respondent was willfully violating the divorce decree, wherein she agreed to confer with him on issues regarding Carl's rearing and other material decisions affecting his health, education, or welfare, by refusing to provide him with specific information regarding the foster care children that she accepts into her home. Evidence was heard on the appellant's motion for contempt and injunctive relief on November 17, 1997, after which the trial court overruled his motion.
On December 10, 1997, the appellant filed a motion to modify custody, requesting primary physical custody of Carl and child support from the respondent. He alleged that there had been a substantial and continuing change of circumstances since the decree of dissolution in that the respondent had failed to cease to provide respite care to foster care children in her home, as agreed, and failed to communicate with him regarding Carl's rearing, as required by the decree and custody agreement, with regard to the foster care children to whom Carl was exposed and by whom he was mistreated.
Evidence was heard on the appellant's motion to modify on May 14, 1998, which the trial court took under advisement. On May 20, 1998, the trial court overruled the motion, finding that "there has not been a substantial and continuing change of circumstances since [the] granting of [the] original decree."
This appeal follows.
Our review of a judgment denying a motion to modify child custody is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Bomar v. Kurtz, 951 S.W.2d 657, 659 (Mo.App.1997). 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. " 'When there is conflicting evidence, the trial court has the discretion to determine the credibility of the witnesses, accepting or rejecting all, part, or none of the testimony it hears.' " Id. (quoting Guier v. Guier, 918 S.W.2d 940, 946 (Mo.App.1996)). " 'Because the trial court is in the best position to weigh all the evidence and render a judgment based on the evidence, the judgment is to be affirmed under any reasonable theory supported by the evidence.' " Id. (citations omitted) (quoting Guier, 918 S.W.2d at 946).
Id. (citations omitted) (quoting Guier, 918 S.W.2d at 946). In our review, we must view the evidence in the light most favorable to the decision of the trial court. Id.
I.
The appellant claims that the trial court erred in denying his motion to modify custody on the basis that he failed to demonstrate that, since the prior custody decree was entered, a substantial and continuing change had occurred in the circumstances of the respondent and/or the minor child, as required by § 452.410 to modify custody. Specifically, he claims that the evidence demonstrated that there had occurred a substantial and continuing change of circumstances in that: (1) the respondent had agreed at the time of dissolution to cease providing respite care for foster children through the DFS and the DYS, but had failed to do so; and (2) the respondent agreed and was ordered, pursuant to the court's decree providing for joint legal custody, to confer with him regarding her respite care services and its effect on Carl, but had refused to do so. The appellant was concerned about the "kind of children" to whom his son was being exposed as a result of the respondent's providing respite care in her home. In this respect he testified that Carl had complained to him that foster care children had kicked and been mean to him. The respondent contends that there had not been a change of circumstances since the prior decree, and even if there had been, it was not so substantial as to warrant modification.
Section 452.410.1 governs the modification of child custody decrees. It provides, in pertinent part, that:
the court shall not modify a prior custody decree unless it has jurisdiction under the provisions of § 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.
§ 452.410.1. Under this subsection, before a court can change physical custody of a minor child as being in his or her best interests, it must first determine that there has been a substantial and continuing change of circumstances of the child or custodian. Bomar, 951 S.W.2d at 660. There is a presumption that the party awarded custody in the original decree is a suitable custodial parent. Guier, 918 S.W.2d at 947. As such, the party seeking to change custody has the burden of proving a change in circumstances requiring modification. Id.
The required change in circumstances must relate to the circumstances of the child or the custodial parent, not the noncustodial parent. McCreary v. McCreary, 954 S.W.2d 433, 439 (Mo.App.1997). In order for the change in circumstances to be sufficient to warrant modification, it must be of such a nature that the child will substantially benefit from the change of custody and the welfare of the child requires it, id., in that children should not be moved from one environment to another upon slight changes of the status of the parents, Guier, 918 S.W.2d at 947, inasmuch as there is much value in allowing children to remain with the custodial parent as opposed to uprooting them from familiar surroundings and moving them to a different home. McCreary, 954 S.W.2d at 446. Thus, " '[e]ven if there is some showing at a modification hearing that a change of circumstances has occurred, such change must be significant before a child custody decree may be modified.' " Mobley v. Phillips, 942 S.W.2d 399, 401 (Mo.App.1997) (quoting In re Marriage of D.L. (B.)M., 783 S.W.2d 473, 474-75 (Mo.App.1990)). Not every change in the life of a child or his or her custodian is sufficient to trigger a modification of custody. Shockey v. Curtis, 971 S.W.2d...
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