In re the Marriage of Wanda Sue Eikermann

• Decision Date: 27 April 2001
• Citation: 48 S.W.3d 605
• Parties: (Mo.App. S.D. 2001) In re the Marriage of Wanda Sue Eikermann and Leland Oscar Eikermann, Jr. Wanda Sue (Eikermann) Holland, Petitioner/Appellant v. Leland Oscar Eikermann, Jr., Respondent/Respondent v. State of Missouri, acting through Department of Social Services, Division of Child Support Enforcement, Respondent. 23529 0
• Court: Missouri Court of Appeals

48 S.W.3d 605 (Mo.App. S.D. 2001)

In re the Marriage of Wanda Sue Eikermann and Leland Oscar Eikermann, Jr. Wanda Sue (Eikermann) Holland, Petitioner/Appellant v. Leland Oscar Eikermann, Jr., Respondent/Respondent v. State of Missouri, acting through Department of Social Services, Division of Child Support Enforcement, Respondent.

23529

Missouri Court of Appeals Southern District

04/27/2001

Appeal From: Circuit Court of Crawford County, Hon. William Camm Seay

Counsel for Appellant: Catherine L. Lange, C. William Lange and Lance P. Ferguson

Counsel for Respondent: James A. Broshot and Charles R. Leick

Opinion Summary: None

Prewitt, J., and Barney, C.J., concur

Phillip R. Garrison, Judge

This is an appeal by Wanda Sue (Eikermann) Holland ("Mother") from a judgment modifying the custody provisions of an earlier judgment dissolving her marriage to Leland Oscar Eikermann, Jr. ("Father"). On this appeal, Mother contends that the trial court erred in awarding primary physical custody of their son, L.E.E., to Father, and in failing to award her attorney's fees.

The marriage of Mother and Father was dissolved in September 1990. In that judgment, the court awarded joint legal custody of L.E.E., born, July 30, 1987, Mother was awarded primary physical custody with Father to have specific visitation privileges, and Father was ordered to pay $70 per week as child support. Both parties subsequently remarried. In November 1998, the Department of Social Services, Division of Child Support Enforcement commenced an administrative proceeding against Father, at the request of Mother, seeking to modify his child support. As a response to that action, Father filed the instant motion to modify seeking primary physical custody of L.E.E. in December 1998. He alleged that since the entry of the dissolution decree, there had been a "change in circumstances so substantial and continuing as to make the terms of said Decree unreasonable in regard to the child and in regard to the parties." Those changes of circumstances were alleged to be: (a) L.E.E. is older; (b) L.E.E. had expressed his desire to live with Father; (c) both parties were residing in the Bourbon, Missouri area when their marriage was dissolved, but Mother changed her residence to Cuba, Missouri area, and L.E.E. is enrolled in the Crawford County R-11 School District in Cuba; (d) Father had maintained a stable residence since the date of the dissolution decree; (e) Mother had changed her residence repeatedly since the entry of the dissolution decree; (f) Mother had not provided a stable home environment for L.E.E.; and (g) Mother relocated the child's residence without giving him prior written notice as required by section 452.377. Father also filed a motion to stay the administrative proceedings concerning child support, which was granted, by the trial court.

Mother denied that there had been a continuing and substantial change of circumstances, but admitted that L.E.E. had expressed some desire to live with Father in the past. In the prayer of her answer, she requested that the motion to modify be dismissed, and that Father be ordered to pay a reasonable sum as her attorney's fees. Mother testified that since the dissolution, both parties had moved from Bourbon, Missouri, which is in Crawford County. She said, however, that while she had lived in seven different residences since the dissolution, all of them had been in Crawford County. Father was then living in Sullivan, Franklin County, Missouri.

The trial court entered a judgment modifying the earlier decree. It held:

That there has been a substantial and continuing change of circumstances regarding the custody and visitation of the minor child so as to make this Court's previous Order unreasonable and contrary to the best interests of the minor child. Said changes include [Mother's] frequent change of residences, the minor child's age and need for stronger guidance from his father, which he is not currently receiving from [Mother] and the minor child's expressed desire to reside with [Father].It then awarded Father primary physical custody, subject to Mother's specific rights of visitation, and found that such custody arrangement was in the child's best interest. It also ordered Mother to pay child support of $134 per month.¹ This appeal followed.

Our review of a judgment modifying child custody is governed by Murphy v. Carron,

536 S.W.2d 30 (Mo. banc 1976).² Reeves-Weible v. Reeves, 995 S.W.2d 50, 55 (Mo.App. W.D. 1999). We will, therefore, 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 witnesses, and may accept or reject all, part or none of the testimony it hears. Id. Greater deference is given to the determination of the trial court in child custody matters than in other cases. Brown v. Brown, 19 S.W.3d 717, 720 (Mo.App. W.D. 2000). A great deal of caution should be exercised in considering whether a judgment should be set aside on the ground that it is against the weight of the evidence, and only then upon the firm belief that it was wrong. Reeves-Weible, 995 S.W.2d at 56.

Modification of child custody decrees is governed by section 452.410.³ Section 452.410.1 provides that a court with jurisdiction may modify a prior custody decree, if 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." Under this statute, a finding of a change in circumstances making the prior decree unreasonable is a

precursor to a finding that the best interests of the child necessitate modification. Tilley v. Tilley, 968 S.W.2d 208, 212 (Mo.App. S.D. 1998); McCreary v. McCreary, 954 S.W.2d 433, 439 (Mo.App. W.D. 1997). The issue of the child's best interests is not reached unless and until there is a sufficient showing of a change of circumstances. McCreary, 954 S.W.2d at 440. The necessary change in circumstances under section 452.410.1 must relate to the circumstances of the child or his custodian, not the noncustodial parent. Id. at 439. If the evidence and testimony wholly fail to demonstrate a change in circumstances, there can be no change of custody. Id.

In her first point on this appeal, Mother contends that the trial court erred in awarding Father primary physical custody of L.E.E. In support, she argues that he failed to demonstrate a change of circumstances of Mother or L.E.E., and that the factors cited by the court "went only to best interests of the child or did not effect [sic] child."⁴

There is a presumption that the party awarded custody in the original decree is a suitable custodial parent, and the party seeking a change of custody has the burden of proving a change in circumstances requiring modification. Reeves-Weible, 995 S.W.2d at 56. Mother argues that the change of circumstances necessary to modify a custody award must be "substantial" and "continuing," citing cases such as Johnson v. Lewis, 12 S.W.3d 379, 383-84 (Mo.App. W.D. 2000); Reeves-Weible, 995 S.W.2d at 56; McCreary, 954 S.W.2d at 439-40; Ijames v. Ijames, 909 S.W.2d 378, 380 (Mo.App. S.D. 1995). See also McCubbin v. Taylor, 5 S.W.3d 202, 206-07 (Mo.App. W.D. 1999); Haus-Gillespie v. Gillespie, 998 S.W.2d 842, 846 (Mo.App. W.D. 1999); Tilley, 968 S.W.2d at 211. In Searcy v. Seedorff, 8 S.W.3d 113, 117 (Mo. banc 1999), the Missouri Supreme Court said that under the "plain language" of section 452.410.1, a moving party seeking to modify a custody order must first establish that a "substantial 'change of circumstances of the child or his custodian' has occurred." Father cites In re C.N.H., 998 S.W.2d 553, 556-57 (Mo.App. S.D. 1999), citing Friend v. Jackson, 714 S.W.2d 953, 955 (Mo.App. S.D. 1986), which notes that section 452.410.1, authorizing a modification of a custody award, does not specifically require a change of circumstances which is "substantial and continuing." We are, however, constitutionally bound to follow the latest Missouri Supreme Court decision. State ex rel. FAG Bearings Corp. v. Perigo, 8 S.W.3d 118, 123 (Mo. App. S.D. 1999). Accordingly, we are required to follow the line of cases applying the "substantial" component to the requirement of a change of circumstances in a modification of custody case. This is in keeping with the cases holding that the change of circumstances must be significant before a child custody decree may be modified. McCreary, 954 S.W.2d at 439.

As indicated earlier, the change in circumstances required under section 452.410.1 must relate to the circumstances of the child or their custodian, and not the noncustodial parent. Those changes of circumstances, in order, to justify a change of custody, must be of a significant nature, directly affecting the welfare of the child. Johnson, 12 S.W.3d at 383. Said another way, "[t]he change must be of a nature that the child will substantially benefit from the transfer and the welfare of the child requires it, . . . in that children should not be moved from one environment to another upon slight changes of the status of the parents, . . . 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." Reeves-Weible, 995 S.W.2d at 57. See also Ijames, 909 S.W.2d at 380 ("The change in circumstances must be such as to give definite promise that the custody change will substantially benefit the child.") Not every change in the life of a child or his or her custodian is enough to trigger a modification of custody. Reeves-Weible, 995 S.W.2d at 57.

In this case, the trial...