Hollins v. Hollins

• Decision Date: 07 March 2000
• Citation: 13 S.W.3d 669
• Parties: (Mo.App. E.D. 2000) . Missouri Court of Appeals Eastern District Nancy A. Hollins, Petitioner/Respondent, v. Samuel D. Hollins, Respondent/Appellant. Case Number: ED75841 Handdown Date: 0
• Court: Missouri Court of Appeals

13 S.W.3d 669 (Mo.App. E.D. 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Missouri Court of Appeals Eastern District

Nancy A. Hollins, Petitioner/Respondent, v. Samuel D. Hollins, Respondent/Appellant.

Case Number: ED75841

Handdown Date: 03/07/2000

Appeal From: Circuit Court of St. Charles County, Hon. Frank A. Conard

Counsel for Appellant: Deborah J. Tomich and Jane E. Tomich

Counsel for Respondent: Charles E. Bridges

Opinion Summary: Samuel Hollins, father, appeals from judgment modifying joint legal and physical custody of his minor child, Samuel David Hollins, to primary custody in favor of mother Nancy Hollins.

JUDGMENT AFFIRMED IN PART AND REMANDED IN PART.

Division One Holds: (1) The trial court did not err in modifying joint custody to primary custody in favor of mother, which it found to be in the best interests of the child and in ordering father to pay all of mother's attorney's fees; and (2) the trial court failed to enter a parenting plan in conformance with the requirements of section 452.310.7 RSMo 1999 Cum. Supp.

Opinion Author: Paul J. Simon, Judge

Opinion Vote: JUDGMENT AFFIRMED IN PART AND REMANDED IN PART. Gaertner, P.J., and J. Dowd, J., concur.

Opinion:

Samuel Hollins, father, appeals from judgment modifying joint legal and physical custody of his minor child, Samuel David Hollins, to primary custody in favor of mother Nancy Hollins.

On appeal, father contends the trial court erred in: (1) modifying joint custody to primary custody in favor of Nancy Hollins, mother; (2) failing to make findings of fact regarding the best interests of child; (3) not entering a parenting plan; (4) ordering father to pay all of mother's attorney's fees. We affirm in part and remand in part.

In review of judge-tried cases, we will affirm the trial court's judgment if it is supported by substantial evidence, is not against the weight of the evidence and does not erroneously declare or apply the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

The record reveals that the marriage of mother and father was dissolved on July 26, 1994, when child was five years old. The decree of dissolution awarded joint legal and physical custody of child to mother and father, giving primary physical custody to mother. The visitation schedule provided for near equal time with each parent, providing that father should have up to a maximum of fifteen days of physical custody a month. The regular visitation schedule was not provided for in the decree, rather the parties were to confer on the schedule each month based on father's work schedule. However, a holiday visitation schedule was specifically provided for in the decree. The decree also provided that father was to pay child support and provide health insurance.

In February 1996, the trial court modified the decree, retaining the parties' joint and legal custody of child and mother's primary physical custody. It provided father with custody on alternate weekends and one night during the week. In March 1996, the decree was again modified, maintaining the alternate weekend and one week night physical custody of father but allowing some flexibility on father's visitation due to his work schedule.

On June 19, 1996, the trial court again modified the decree, based on a Stipulation of Modification and Contempt executed by the parties on May 29, 1996. Pursuant to the modification, the parties again continued to share joint physical and legal custody with mother acting as primary physical custodian. Father's custody schedule was revised to allow him to have child two weekends per month and every Tuesday from 8:00 a.m. to Thursday 8:00 a.m. In the event that Father's work schedule would not permit him to take child during these periods, the parties were to negoitate "in good faith" a visitation schedule.

In May 1998, the parties were again unable to agree on custody and mother advised father that she was going to file another motion to modify if father continued to deny her periods of custody with child. Father then took mother's periods of custody on May 4 and 7 and filed a motion to modify on May 7, alleging a change in circumstances since the last modification in that mother failed to recognize that strict compliance with the custody schedule would be impossible, mother has refused to cooperate with father to allow him to exercise temporary custody, and interfered with those visits. As a result, father requested an award of primary physical custody of child, or in the alternative custody for alternating weeks.

Thereafter, mother filed a cross-motion to modify, seeking primary custody of child, alleging that father has disregarded the decree and modifications in relation to the custody schedule including picking up the child from day care, which he is prohibited from doing by an earlier modification, and using such to take mother's periods of custody.

In December 1998, the trial court entered its judgment for modification, finding that father was "a control freak" and had not abided by the June 1996 modification, as he had continued to accumulate days despite the modification's prohibition. Father had taken child on "numerous occasions" absent an agreement of the parties and picked the child up from daycare in violation of earlier modifications on numerous occasions, depriving mother of her periods of custody. Despite father's contention that mother was uncooperative in providing alternate visitation, as was necessary to accommodate his schedule as a low seniority commercial airline pilot, the trial court found that mother had on numerous occasions acquiesced to father's demands. The parties did not consult each other on parental care, medical care, school activities, and other issues, as they spent most of their time arguing over father's periods of custody. They communicated primarily by fax. The trial court noted that an award of joint custody presupposes "a commonality of beliefs and a certain ability to communicate with one another on issues involving the upbringing of their child." It further found that "the parties' inability to communicate in a mature and nonconfrontational manner make it inadvisable to continue the current joint physical and legal custody arrangement" and awarded mother primary care, custody and control of child. The trial court awarded father temporary custody on alternate weekends, Tuesday at 8:00 a.m. to Thursday at 8:00 a.m., alternating holidays and six weeks during the summer (four weeks more than the original decree and previous modifications). Finally, it provided that mother would confer with father in the exercise of her primary decision rights, responsibilities and authority.

In his first point on appeal, father contends that the trial court erred in modifying joint custody to primary custody. He argues that once custody is adjudicated, the presumption is that the custody as originally decreed remains suitable and there was no evidence that joint custody was not suitable.

We will not reverse the trial court's modification unless father demonstrates that it was not in the best interest of the child. A.J.K. by R.K. v. J.L., 980 S.W.2d 81, 84 (Mo.App. E.D. 1998). There is no preference for joint custody unless, in the given circumstances, it is in the best interests of the child. McCauley v. Schenkel, 977 S.W.2d 45,50-51 (Mo.App. E.D. 1998). In a joint custody situation, breakdown of parental communication and cooperation is sufficient, in and of itself, to constitute a change...