J.F.H. v. S.L.S.

• Decision Date: 26 December 2017
• Docket Number: No. ED 105044,ED 105044
• Citation: 550 S.W.3d 532
• Parties: J.F.H., Appellant, v. S.L.S., Respondent.
• Court: Missouri Court of Appeals

550 S.W.3d 532

J.F.H., Appellant,

v.S.L.S., Respondent.

No. ED 105044

Missouri Court of Appeals, Eastern District, DIVISION FIVE.

Filed: December 26, 2017

FOR APPELLANT: Michael L. Jackson, 1028 North Kingshighway, Suite 1, Cape Girardeau, Missouri 63701.

FOR RESPONDENT: Kenneth Scott Fetterhoff, Michael J. Polwort, 2480 E. Main, Jackson, Missouri 63755.

OPINION

James M. Dowd, Chief JudgeThis case concerns the legal and physical custody of K.N.H., the daughter of appellant J.F.H. ("Father") and respondent S.L.S. ("Mother"). Father appeals from the judgment of the Circuit Court of Cape Girardeau County which modified the legal and physical custody arrangements set forth in the court’s 2009 judgment. Father claims that there was insufficient evidence of a substantial change in circumstances to justify terminating the joint legal custody and the joint physical custody arrangements ordered in 2009, and insufficient evidence that these modifications were necessary to serve Child’s best interests. While we find that the court did not err in modifying the 2009 judgment by awarding Mother sole legal custody, we are firmly convinced that the court’s termination of joint physical custody is erroneous and is against Child’s best interests. Therefore, the judgment is affirmed in part and reversed in part.

Factual and Procedural Background

On March 2, 2009, the court entered its judgment which established the paternity of Child and provided for Child’s custody (the "custody decree") by awarding Mother and Father joint legal and physical custody, with Mother’s address serving as Child’s for mailing and educational purposes. Tire parenting plan adopted pursuant to the judgment provided for a repeating two-week schedule of roughly equal physical custody periods. At the time the judgment was entered in 2009, Father lived and worked in Cape Girardeau, and Mother worked in Cape Girardeau though she lived in Marble Hill, in Bollinger County.

The disagreement giving rise to this case centers on driving distances and times between Marble Hill and Cape Girardeau now that Child has reached school age. On Father’s custody days that are also school days, he drives Child over 30 miles to Marble Hill, drives about the same distance back to his workplace in Cape Girardeau, drives back to Marble Hill to pick Child up after school, and then drives her back to Cape Girardeau. Father unsuccessfully attempted to make arrangements with Marble Hill’s Woodland school district to have Child ride the bus. Father testified that he lost a job because of the amount of time he missed in order to take Child to school in Marble Hill, and he was concerned about the amount of time Child was spending on the road.

Citing the latter concern, on August 17, 2015, Father filed a motion to modify the custody decree, requesting that joint legal custody and joint physical custody be maintained, but that Child assume Father’s address for educational purposes so that she could be placed in school in Cape Girardeau. He also asked that his parenting time during the school year consist of all weekdays and alternating weekends.

Mother opposed Father’s motion and filed her own motion to modify. For her part, she asked that her parenting time during the school year consist of all weekdays and alternating weekends. Unlike Father, however, Mother sought termination of the joint custody arrangement and requested both sole legal and sole physical custody of Child. Mother claimed that these modifications were necessary to serve Child’s best interests because Father had twice enrolled Child in schools in Cape Girardeau without Mother’s approval. Mother also argued that Father’s motion to modify was motivated solely by self-interest to reduce his time on the road, and that she and Father no longer had the ability or willingness to communicate and cooperate in making parenting decisions.

On September 7, 2016, the trial court entered its judgment which modified the decree by granting Mother sole legal and sole physical custody, and by reducing Father’s physical custody time during the school year to alternating weekends only. The court found that Mother and Father are no longer able to cooperate with each other in making parenting decisions; that due to the distance Father and Child must travel, the decree’s custody schedule has become unworkable; and that granting Father alternating weekends with Child is the best plan for school-year parenting time because it offers Father "reasonable" custody time but does not subject Child to extensive travel and removes the financial burden of providing that transportation.

Further facts, as relevant, are provided below. This appeal follows.

Standard of Review

The applicable standard of review requires this court to affirm the trial court’s judgment unless it is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Morgan v. Morgan , 497 S.W.3d 359, 363 (Mo. App. E.D. 2016) (citing Murphy v. Carron , 536 S.W.2d 30, 32 (Mo. banc 1976) ). The trial court is in a superior position to weigh all the evidence and render a judgment based upon that evidence; therefore, the judgment is to be affirmed under any reasonable theory supported by the evidence. Id. (citing Love v. Love, 75 S.W.3d 747, 754 (Mo. App. W.D. 2002) ). The trial court’s determination of custody will not be disturbed on appeal unless this Court is firmly convinced the determination is erroneous and is against the child’s best interests. Id. (citing Bather v. Bather, 170 S.W.3d 487, 492 (Mo. App. W.D. 2005) ).

Discussion

In Missouri, two distinct statutes govern the modification of prior parenting arrangements. Id. (citing Russell v. Russell, 210 S.W.3d 191, 196 (Mo. banc 2007) ; §§ 452.410, 452.400.2¹ ). Section 452.410 governs the modification of child custody decrees. Id. (citing Frantz v. Frantz, 488 S.W.3d 167, 175 (Mo. App. E.D. 2016) ). Generally, a modification of a "child custody decree" can reasonably be interpreted to apply to those instances where a court is requested to modify the "custody" designation. Id. (citing Prach v. Westberg, 455 S.W.3d 513, 516 (Mo. App. W.D. 2015) ). A "custody" designation refers to joint legal custody, sole legal custody, joint physical custody, and sole physical custody. Id. (citing § 452.375.1(1)).

Joint legal custody means that the parents share the decision-making rights, responsibilities, and authority relating to the health, education and welfare of the child, and, unless allocated, apportioned, or decreed, the parents shall confer with one another in the exercise of decision-making rights, responsibilities, and authority. § 452.375.1(2). Joint physical custody means an order awarding each of the parents significant, but not necessarily equal, periods of time during which a child resides with or is under the care and supervision of each of the parents. § 452.375.1(3). Joint physical custody shall be shared by the parents in such a way as to assure the child of frequent, continuing and meaningful contact with both parents. Id.

Section 452.410 breeds two differing burdens of proof for purposes of motions to modify. Id. at 364-65. Always, the party seeking a modification under § 452.410 must make the basic showing (1) that a change has occurred in the circumstances of the child or his custodian based upon facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, and (2) that a modification is necessary to serve the best interests of the child. Id. at 364. But the burden in step one is increased when, for example, both parents were awarded joint physical custody in the previous child custody decree and a modification is sought to award only one parent sole physical custody (with rights of visitation to the other parent). Id. at 365-66. In that case, what Morgan refers to as the "Section 452.410 Case Law Standard" applies, and the party seeking modification must demonstrate a substantial change in circumstances. Id. at 365.

In essence, "the type of custody modification requested determines the nature of the change in circumstances required." Tienter v. Tienter , 482 S.W.3d 483, 490 (Mo. App. E.D. 2016). Indeed, just as a "drastic change in the custodial arrangement" must be supported by a substantial change in circumstances, id. (emphasis added), it follows also that any modification of legal custody by its nature requires a legal-custody-related change in circumstances, and any modification of physical custody a physical-custody-related change. Specifically, a modification of the terms of joint legal custody must be supported by a change in the circumstances of the parents' exercise of such custody—i.e., how they have shared the decision-making rights, responsibilities, and authority relating to the health, education, and welfare of the child. And a modification of the terms of joint physical custody must be supported by a change in the circumstances of the parents' use of parenting time and their sharing of it in such a way as to assure the child of frequent, continuing, and meaningful contact with both parents.

This is because courts considering modification requests must determine, in the first step of the two-part inquiry laid out above, specifically whether the sort of change in circumstances has occurred that would make a particular aspect of the prior custody decree unreasonable. See, e.g., Wallace v. Chapman, 64 S.W.3d 853 (Mo. App. W.D. 2002) ("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."). Not every change in circumstances calls for a transfer of child custody. Eastes v. Eastes, 590 S.W.2d 405, 408 (Mo. App. E.D. 1979). It is only those changes that actually relate to the modification requested that matter.

This Court reasoned in Bewig v. Bewig, 708 S.W.2d 769, 771 (Mo. App. E.D. 1986) that "[t]he...