In re Marriage of Murphey

• Decision Date: 04 December 2006
• Docket Number: No. 26809.,26809.
• Citation: 207 S.W.3d 679
• Parties: In re the MARRIAGE OF Patrick Lynn MURPHEY and Angelic Marie Murphey. Patrick Lynn Murphey, Petitioner-Appellant, v. Angelic Marie Murphey, Respondent-Respondent.
• Court: Missouri Court of Appeals

Page 679

207 S.W.3d 679

In re the MARRIAGE OF Patrick Lynn MURPHEY and Angelic Marie Murphey Patrick Lynn Murphey, Petitioner-Appellant, v.Angelic Marie Murphey, Respondent-Respondent.

No. 26809.

Missouri Court of Appeals, Southern District, Division Two.

December 4, 2006.

COPYRIGHT MATERIAL OMITTED

Richard D. Winders, Bolivar, MO, for Appellant.

John P. Lukachick, Springfield, MO, for Respondent.

JEFFREY W. BATES, Chief Judge.

Patrick Lynn Murphey(Father) appeals from a modified judgment in a dissolution action that, inter alia, changed the primary residence of the parties' children, Patrick Murphey(Patrick) and Karen Murphey(Karen), from Father to Angelic Marie Murphey(Mother).Father presents five points of error on appeal.In Point III, Father contends the trial court misapplied the law in preparing the parenting plan because the court did not allocate parenting time with Patrick to either party on certain school holidays or Patrick's birthday.We agree.Therefore, the judgment is reversed in part, and the case is remanded with directions for the trial court to prepare a parenting plan that complies with all of the statutory requirements found in § 452.310.7.¹In all other respects, we affirm.

The parties' original dissolution judgment was entered on September 5, 1990.The judgment was modified in October 1999 and again in December 2002.As best we can discern from the record on appeal, the 1999 judgment awarded Father and Mother joint legal and joint physical custody of four-year-old Patrick and ten-year-old Karen (hereinafter collectively referred to as "the children").²The children lived primarily with Father in Bolivar, Missouri.His residence was designated as their address for educational and mailing purposes.Mother lived in Sparta, Missouri.

In February 2004, Mother filed a motion to modify.She alleged that a substantial and continuing change of circumstances existed because Father emotionally and physically abused the children, and he refused to follow doctors' instructions regarding the children's medication and mental health care.Mother sought sole physical custody of the children and supervised visitation with Father.In April 2004, Father filed an answer denying the allegations upon which Mother relied to support a modification of the judgment.In addition, Father filed a counter-motion to modify in which he sought sole physical and legal custody of the children.To support the request for modification, Father's motion contained a farrago of 33 complaints about Mother's conduct.Those allegations included the charge that "[Mother's] actions are abusive to the children."In May 2004, the trial court appointed William Stewart to act as the guardian ad litem (GAL) for the children.³

The motions to modify were tried in November 2004.Mother's witnesses included Karen's counselor, Dr. Robert Grant(Dr. Grant); and Patrick's counselor, Michelle Phillips(Counselor Phillips).Karen moved to Mother's house in February 2004.Dr. Grant testified that Karen had a "strained relationship" with Father and returning to live with him would be unhealthy.Dr. Grant also testified that Karen had a very close relationship with Patrick and should not be separated from him.Counselor Phillips agreed that the children had a close relationship and should not be separated.She also opined that it would be better for Patrick to reside with Mother.Patrick got along well with an older stepbrother at Mother's house and had developed other friendships in the community.In contrast, Counselor Phillips testified that Patrick had a very volatile relationship with a stepbrother residing in Father's residence, and generally felt "very isolated, like outside the family when he's with his dad, without having Karen or somebody.It's almost like he's a separate family member."

During the direct and cross-examinations of Father and Mother, they were questioned by counsel about whether they had abused their children.⁴Both parents denied doing so and testified at length about the specific accusations each had made against the other.In addition, Father called a witness from the Children's Division (the Division) to testify.Both parents had been investigated by the Division for various reasons.On each such occasion, the Division found that the parent's response to the problem was appropriate and that no further action was required.

The court decided to interview Karen and Patrick in chambers.⁵Prior to conducting the interviews, the court stated that it would not allow the parties' attorneys to directly question either child.The attorneys were provided an opportunity to submit written questions before each interview and to request that the court ask additional questions at the end of each interview.The main concern expressed by Father's attorney was that the judge have the opportunity to review a number of letters found in Karen's room and ask her questions about them.The court agreed to do so, and all parties were given copies of the documents the day before the interview by Father's attorney.The next day, the judge conducted each interview in the presence of the GAL and the attorneys for Father and Mother.Both children expressed their desire to live together and to live primarily with Mother.Karen, who was then five and one-half months pregnant, told the judge that she and Mother had already investigated special programs for teenage mothers at Sparta High School in which Karen hoped to participate.

On January 11, 2005, the trial court entered its third modified judgment and decree after finding that the existing judgment and parenting plan were no longer in the children's best interest due to a substantial and continuing change of circumstances.As before, the court awarded Mother and Father joint legal and physical custody of both children, but the 2005 modified decree provided that the children would reside primarily with Mother.The court adopted its own parenting plan after finding that the ones submitted by Father and Mother were not in the children's best interest.In the court's parenting plan, Father was granted parenting time with Patrick on Father's Day each year and on July 4th, Thanksgiving, Christmas Eve, Christmas and New Year's Eve of every other year.Mother was granted parenting time with Patrick each year on Mother's Day and on the same specific holidays as Father in alternate years.The court did not specifically provide for parenting time with either parent on Patrick's birthday or the other school holidays and breaks listed in § 452.310.7.The court restricted Father's parenting time with Karen to eight hours per month "[u]ntil such time as Father completes Anger Management and/or other counseling sessions, including family counseling with Karen...."This appeal followed.

Father presents five points for decision.He contends the trial court erred in modifying the prior decree by: (1) finding that a substantial change in circumstances had occurred with respect to Patrick; (2) refusing to allow Father's counsel to directly question the children during their interview in chambers; (3) failing to specify parenting time with Patrick on certain holidays and special occasions listed in § 452.310.7;(4) requiring Father to complete counseling sessions as a condition precedent to spending parenting time with Karen; and (5) failing to require the GAL to demonstrate his investigation of the parties' allegations of abuse.Additional facts necessary to the disposition of the case are included below as we address Father's points.

In re D.M.S.,96 S.W.3d 167(Mo. App.2003) contains a succinct summary of the applicable standard of review:

We will affirm a judgment in a custody modification case if it is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law.When there is conflicting evidence, it is in the trial court's discretion to determine the credibility of the witnesses, and accept or reject all, part, or none of the testimony it hears.In assessing the sufficiency of the evidence, we examine the evidence and its inferences in the light most favorable to the trial court's judgment.Greater deference is given to a trial court's determination in matters involving child custody than in any other type of case.We exercise extreme caution in considering whether a judgment should be set aside on the ground that it is against the weight of the evidence, and will do so only upon a firm belief that the judgment was wrong.

Id. at 171(citations omitted).The trial court's decision in this court-tried case is presumed correct, and Father bears the burden of showing error.McAllister v. McAllister,101 S.W.3d 287, 291(Mo.App.2003);King v. King,976 S.W.2d 49, 52(Mo.App.1998)."We will not reverse the trial court's judgment if there is no showing of prejudice as a result of that judgment."Shields v. Shields,59 S.W.3d 658, 660(Mo.App.2001);McAllister,101 S.W.3d at 291.

Point I

In Father's first point, he contends the trial court erred in modifying the prior custody decree because there was insufficient evidence to support the court's findings that there had been a substantial change of circumstances with respect to Patrick and that the new parenting plan served his best interests.We disagree.

Section 452.410.1 authorizes modification of a prior custody decree upon a finding by the trial court 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."Id.;In re Marriage of Loftis,148 S.W.3d 315, 318(Mo.App.2004).Viewing the evidence in light most favorable to the judgment, the court's findings on both issues are supported by the following substantial evidence: (1) Karen left Father's household because she and Father could not get along; (2) there was a very close bond between Karen and Patrick; (3) both the...