A.J.K. by R.K. v. J.L., 73365

• Decision Date: 22 September 1998
• Docket Number: No. 73365,73365
• Citation: 980 S.W.2d 81
• Parties: A.J.K., by his next friend, R.K., and R.K., individually, Respondent/Cross-Appellant, v. J.L. Appellant/Cross-Respondent.
• Court: Missouri Court of Appeals

Page 81

980 S.W.2d 81

A.J.K., by his next friend, R.K., and R.K., individually Respondent/Cross-Appellant, v. J.L. Appellant/Cross-Respondent.

No. 73365.

Missouri Court of Appeals,

Eastern District,

Division Five.

Sept. 22, 1998.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Nov. 6, 1998.

Application for Transfer Denied Dec. 22, 1998.

Briegel & Baylard, P.C., David L. Baylard, Union, for appellant.

Craig E. Hellmann, Washington, for respondent.

KAROHL, Judge.

Mother appeals modification of child custody decree granting Father joint legal and physical custody of her son, age six, and denial of her post-trial motions to reopen or for a new trial. Father cross-appeals the court's modifications of child support. We affirm as to Mother's appeal. We reverse and remand as to Father's appeal.

R.K. (Father) and J.L. (Mother) had one child, A.J. K., born on January 28, 1991. On June 1, 1993, the court entered a paternity judgment after finding R.K. was the natural father of A.J.K. On January 28, 1994, the court entered a decree that granted Mother primary care, custody, and control of A.J.K., subject to Father's rights of reasonable visitation. The court also awarded Mother $900.00 per month in child support. On August 23, 1995, Father filed a motion to modify the decree, seeking to lower his court-ordered child support obligation. On January 16, 1996, Mother filed a counter-motion to modify, seeking an increase in child support. She also filed a motion to cite and find Father in contempt. On July 12, 1996, Father amended his motion seeking joint custody.

On June 26, 1997, the court entered a judgment of modification with findings of facts and conclusions of law. It found there had been "a substantial and continuing change in the circumstances of both parents and the child since the original decree such that the original decree with respect to child custody, support, and visitation was [then] unreasonable." It concluded "the best interest of the child require[d] a modification," and "the best interest of the child [would] be served by a joint legal custody arrangement." It awarded each parent joint physical custody for alternating periods of two weeks. On the issue of child support, the court rejected the Form 14 child support calculations "submitted by both parties as being incorrect and improper under the findings of the Court." It found the total child support was $763 per month. However, it adjusted the amount to $613 per month because it found there would be an increased financial burden on Father after the modification of legal and physical custody.

On July 25, 1997, following the modification judgment, Mother filed a motion for new trial, or in the alternative, to reopen the evidence. She filed affidavits in support of her motion. On August 18, 1997, Father filed affidavits in opposition to Mother's motion. On October 3, 1997, she supplemented her motion and filed a motion for appointment of a Guardian Ad Litem. On October 23, 1997, the court denied her motions. She appealed. Father cross-appealed.

Rule 73.01(c) and the principles set forth in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976) govern our review. In reviewing modifications of a child custody decree, we will affirm the judgment of the trial court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or it erroneously misapplies the law. Guier v. Guier, 918 S.W.2d 940, 946 (Mo.App.W.D.1996). We give greater deference to the determination of the trial court in child custody matters than in other cases. Id. Since the trial court is in the best position to weigh all of the evidence, we affirm its judgment under any reasonable theory supported by the evidence. Id. "When there is conflicting evidence, the trial court has the discretion to determine the credibility of witnesses, accepting or rejecting all, part, or none of the testimony it hears." Id. We will not overturn the modification of the court unless appellant demonstrates that it was not in the best interest of the child. In Re Larkins v. Larkins, 921 S.W.2d 152, 153 (Mo.App.E.D.1996).

Mother raises three points of error. First, she argues the court erred in modifying the parties' prior child custody decree because there was no evidence to support a finding of a change of circumstances of Mother or child that would make a such a modification necessary to serve the best interests of the child pursuant to section 452.410 RSMo Cum.Supp.1996. This section governs the modification of an existing child custody decree, and states in relevant part:

... the 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....

These "changes in circumstances" that the statute requires concern the child or custodial parent, but do not include the changed circumstances of the non-custodial parent. Nichols v. Ralston, 929 S.W.2d 302, 305 (Mo.App.S.D.1996). Once the court awards custody, a presumption arises that the custodial parent will continue to be suitable, and therefore, the burden of showing circumstances which would warrant a change of custody is on the moving party. Guier, 918 S.W.2d at 947. Courts should not move children "from one environment to another upon slight changes of status" concerning their parents. Id. The change in circumstances necessary to support modification of custody must be significant, such that the child will substantially benefit from the transfer of custody. Senciboy v. Thorpe, 947 S.W.2d 116, 119 (Mo.App.W.D.1997). The movant also has the burden of proving the modification is necessary to serve the best interests of the child, applying the factors set forth in Section 452.375.2(2) RSMo Cum.Supp. (1996); Cook v. Warren, 916 S.W.2d 409, 413 (Mo.App. W.D.1996).

At the time of the original child custody, visitation, and support decree, A.J.K. was two years old. He resided with Mother in St. Louis, Missouri. Father resided in Washington, Missouri. After the decree, Mother moved to Owensville, Missouri, and then to St. James, Missouri. A.J.K. continued to reside with Mother at both these locations. In November 1995, Mother married C.P. They had one child, who was ten months old at the time of the hearing on the motions. Sometime in April or May of 1996, she moved to Washington, Missouri where she resided with her new family. Father married after the original decree and has two other children. His family lived in Washington, Missouri at the time of the modification hearing. Their residence was approximately three miles from Mother's. At the time of the modification hearing, A.J.K. was five years old.

Based partially on these facts, the trial court found:

11. [T]here has been a substantial and continuing change in circumstances of both parents and the child since the original decree such that as the original decree with respect to child custody, support and visitation is unreasonable, for the following reasons, in part:

A. At the time of the original decree of custody both parties were single, the child having been born to them out of wedlock.

B. Since the original decree both parties have married and both have had at least one other child as a result of such marriage.

C. The child is now three years older.

D. At the time of the original decree the parties resided some 75+ miles apart and now reside in the same community. ....

F. Both parties are now better able to provide a stable and normal home atmosphere for child rearing.

G. The best interest of the child requires a modification.

The facts support finding a substantial change in the circumstances of Mother and A.J.K. has occurred and a modification of the original child custody decree is necessary to serve the best interests of the child. Mother argues that Father, as movant, also must prove that the "changed circumstances" has yielded an "adverse impact" on the child, and that such condition is a condition precedent to an order modifying custody. The statute does not require evidence to support a finding that changes had an adverse impact. The issue is best interest of the child. Point denied.

Mother's second point argues the trial court erred in modifying the original custody decree since: (1.) the modification did not contain a proper "joint custody plan" as required by Section 452.375.8 RSMo Cum.Supp.1996; (2.) the evidence supported a finding the parties could not communicate or cooperate with each other; (3.) the modification would cause an unhealthy shuttling of a six-year old every two weeks between homes; and (4.) the order confines the child to one school district without consideration of any factors that might justify a move.

"Joint legal custody" means that parents are to share in decision-making regarding the important events in their child's life. J.L.S. v. D.K.S., 943 S.W.2d 766, 774 (Mo.App.E.D.1997). Joint legal custody "was not designed to insure that a parent maintains his or her relationship with the child, but was designed to facilitate the best interest of the child by allowing both parents to share in the decision-making of raising the child." Id.

In the first part of her second point of error, Mother argues the modification did not contain a proper "joint custody plan." Section 452.375.8 RSMo Cum.Supp. (1996) states:

Any decree providing for joint custody shall include a specific written plan setting forth the terms of such custody. Such a plan may be suggested by both parents acting in concert, or one parent acting individually, or if neither of the foregoing occurs, the plan shall be provided by the court. The plan may include a provision for mediation of disputes in all cases, the joint custody plan approved and ordered by...