In re Marriage of Alred

• Decision Date: 06 July 2009
• Docket Number: No. SD 28806.,SD 28806.
• Citation: 291 S.W.3d 328
• Parties: In re the Marriage of: Karla J. ALRED (Henson), and Harold K. Alred, Karla J. Alred (Henson), Petitioner-Appellant, v. Harold K. Alred, Respondent-Respondent.
• Court: Missouri Court of Appeals

291 S.W.3d 328

In re the Marriage of: Karla J. ALRED (Henson), and Harold K. Alred,

Karla J. Alred (Henson), Petitioner-Appellant, v.Harold K. Alred, Respondent-Respondent.

No. SD 28806.

Missouri Court of Appeals, Southern District, Division Two.

July 6, 2009.

Wayne Gifford, Waynesville, MO, for Appellant.

Mark C. Prugh, Waynesville, MO, for Respondent.

DON E. BURRELL, Presiding Judge.

Karla J. Alred Henson("Mother") appeals from a judgment modifying the terms of the Tennessee judgment that dissolved her marriage to Harold K. Alred("Father").¹The parties have one minor child, who was born on January 30, 1997.Mother asserts seven points of alleged trial court error, challenging: 1) the trial court's authority to act; 2) the reduction of her contact with her child; 3) the failure to order a specific holiday contact schedule; 4) the absence of statutorily required language relating to any future relocation of the child; and 5) the absence of a Form 14 child support calculation.We affirm in part, reverse in part, and remand the matter to the trial court with a directive to enter an amended judgment that orders a holiday contact schedule, inserts the statutorily required relocation language, and awards an appropriate amount of child support after first calculating the presumed amount using Form 14.

I.Factual and Procedural Background

Mother and Father were divorced in the state of Tennessee on July 24, 2003.The Final Decree dissolving their marriage ("the original dissolution judgment") — which incorporated the parties' Martial Dissolution Agreement and a Permanent Parenting Plan — awarded Mother the "custody, care and control of the Parties[sic] minor child" and awarded Father"reasonable and liberal visitation with said child and he shall have the right to visitation with said child at least every other weekend beginning at 6:00 p.m. on Friday and ending at 6:00 p.m. on Sunday."After the marriage was dissolved, Mother and child left the state of Tennessee; first moving to Florida and then to Missouri.

On January 10, 2006, Father filed a petition in Pulaski county to register the original dissolution judgment in Missouri accompanied by a motion to modify that judgment.Father's motion to modify claimed that he had been unable to exercise his visitation rights because he had not been provided with any advance notice of Mother's plans to relocate their child or "timely notification" of Mother's new address and phone number after the move had occurred.Father also claimed that Mother"has . . . been a regular user of controlled substances and has neglected the child of the parties by failing to provide her with appropriate parenting attention and support."

On January 10, 2008, the trial court granted Father's motion and awarded him sole custody of the parties' minor child.Mother was awarded "supervised visitation as agreed to by [Father]."Mother now appeals that judgment.

II.Standard of Review

We will affirm a modification to a dissolution 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."In re Marriage of Eikermann,48 S.W.3d 605, 608(Mo.App. S.D.2001).

III.Discussion

We address Mother's allegations of error in the order presented but, for ease of analysis, will discuss points four and five together.

Point I: Change of Circumstances

Mother's first point alleges the trial court had no authority to modify the dissolution judgment because it had no way to determine that the circumstances of the child or her custodian had changed in that no evidence was introduced at trial regarding the circumstances of the parties at the time the original divorce decree was entered.

Section 452.410.1² provides, in pertinent part:

[T]he court shall not modify a prior custody decree unless . . . 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.

While Mother is correct that a change of circumstances must be shown before a modification can be considered, she ignores the fact that she admitted such a change had occurred in her answer to Father's motion to modify.That answer admitted Father's averment that she had "relocated both herself and the minor child of the parties three times since the date of the final decree (resulting in both she and the minor child residing in the States [sic] of Florida . . . and in the State of Missouri)."Section 452.411 states that "[i]f either parent of a child changes his residence to another state, such change of residence of the parent shall be deemed a change of circumstances under section 452.410, allowing the court to modify a prior visitation or custody decree."While a party is not required to file a formal responsive pleading to a motion to modify, any such responsive pleading that admits averments contained in the motion to modify qualify as evidentiary admissions (and perhaps even as judicial admissions if the responsive pleading, as here, is actually labeled as an "answer").SeePeace v. Peace,31 S.W.3d 467, 471(Mo.App. W.D.2000).Mother presented no contrary evidence.Point I is denied.

Point II: No Finding That Regular Visitation Would be Detrimental to the Child

Mother's second point alleges the judgment to be defective because it "does not denominate that regular visitation would endanger the child's physical health or impair the child's emotional development or comply with the statutory requirements of section 452.400.1.""In all cases, allegations of error relating to the form or language of the judgment, including the failure to make statutorily required findings, must be raised in a motion to amend the judgment in order to be preserved for appellate review."Rule 78.07(c).While Mother did not file a motion to amend the judgment, she did file a motion for new trial.As "the title of a motion is not in itself dispositive, we examine the contents of the motion to determine the actual nature of the motion brought."In re Marriage of Wood,262 S.W.3d 267, 273(Mo. App. S.D.2008).Because Mother's new trial motion alleged that the modification judgment was defective for not complying with section 452.400 and referenced Rule 78.07(c), we construe it as a motion to amend the judgment and consider this point of alleged error as properly preserved for our review.

Section 452.400.1(1) states, inter alia,"[a] parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger the child's physical health or impair his [or her] emotional development."The original dissolution judgment granted Mother sole custody of the child and granted Father visitation.The modification judgment granted custody of the child to Father and states that Mother"shall be allowed only supervised visitation with the minor child of the parties," and "[t]he best interests of the child shall be served in this case by affording [Mother] only supervised visitation with the minor child."

The section cited by Mother, 452.400, governs an initial award of visitation rights in a dissolution of marriage action.The modification of a custody decree, however, is governed by section 452.410, not 452.400.Bather v. Bather,170 S.W.3d 487, 497(Mo.App. W.D.2005).The original dissolution judgment granted Mothercustody of the child; not visitation rights.As a result, any subsequent change in Mother's parenting time constitutes a modification of her custody; not a modification of visitation.SeeId.Because the modification judgment ordered a change of custody (not visitation), the provisions of section 452.400 did not apply, and the trial court did not err by refusing to follow it or to explicitly state in its modification judgment that regular visitation would endanger the child's physical health or impair the child's emotional development.Point II is denied.

Point III: Failure to Include Statutorily Required Relocation Language

Mother's third point alleges the trial court erred because its modification judgment did not include a provision regarding relocation of the minor child as required by section 452.377.11."After August 28, 1998, every court order establishing or modifying custody or visitation" must include specific language regarding relocation of a minor child.Section 452.377.11.There is no dispute that the statutory relocation language³ was not included in the modification judgment and the issue was preserved for our review by being raised in Mother's motion for new trial.In light of the mandatory nature of section 452.377.11, the trial court erred by failing to include the required language and the case must be remanded so that it can be added to the judgment.SeeIn re Marriage of Hoff,134 S.W.3d 116, 117(Mo.App. S.D.2004)(finding that it was error for a custody decree to contain an express exemption from the language required by section 452.377.11).Point III is granted.

Points IV and V: Evidence and Findings as to Best Interests

Mother's fourth and fifth points challenge the same set of written findings made by the trial court.We start by noting that section 452.375.2, RSMoCum. Supp.2006, in pertinent part, states:

The court shall determine custody in accordance with the best interests of the child.The court shall consider all relevant factors including:

(1) The wishes of the child's parents as to custody and the proposed parenting plan submitted by both parties;

(2) The needs of the child for a frequent, continuing and meaningful relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child;

(3) The interaction and interrelationship of the...