Johnson v. Lewis

• Decision Date: 29 February 2000
• Citation: 12 S.W.3d 379
• Parties: (Mo.App. W.D. 2000) . Allen E. Johnson, Respondent, v. Mary C. (Johnson) Lewis, Appellant. WD56958 Missouri Court of Appeals Western District Handdown Date: 0
• Court: Missouri Court of Appeals

12 S.W.3d 379 (Mo.App. W.D. 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Allen E. Johnson, Respondent, v. Mary C. (Johnson) Lewis, Appellant.

WD56958

Missouri Court of Appeals Western District

Handdown Date: 02/29/2000

Appeal From: Circuit Court of Platte County, Hon. Daniel M. Czamanske

Counsel for Appellant: Donald J. Lock

Counsel for Respondent: Michael J. Svetlic

Opinion Summary:

Mary C. Lewis (Mother) appeals the decision of the trial court granting a motion to modify filed by Allen E. Johnson (Father), in which Father requested the court to change primary physical custody of their son Jason from Mother to Father. Mother asserts the trial court erred in granting this change of custody because (1) there was no showing of a substantial change in circumstances, and (2) even if there were a substantial change in circumstances, the modification of custody was not in the best interests of Jason. The trial court gave two grounds for finding a substantial change of circumstances existed: that Jason wanted to live with Father and that Father would provide a better home environment.

REVERSED AND REMANDED.

Division One holds: The trial court did not provide the required factual basis to find a sufficient "change of circumstances" existed supporting a change in the child's primary physical custodian. Before a court can change physical custody of a minor child as being in his or her best interests, it must first determine that there has been a substantial and continuing change of circumstances of the child or his custodian, not merely that there has been a change in the circumstances of the non-custodial parent. Here, the court specifically stated in its judgment that it based its decision to modify custody upon the facts that (1) Father's environment was superior to Mother's for raising a child and (2) Jason preferred to live with Father. Neither of these reasons constitutes a valid basis for finding a substantial change of circumstances because Mother, not Father, was Jason's custodian. In addition, the preference of a child as to his or her custodian is not a substantial change in circumstances unless the underlying reason the child wishes to change custodians itself constitutes a substantial change in the circumstances of the child. Here, Jason did not testify at all, much less explain why he wanted to live with Father. Father nonetheless argues that even if the reasons given by the court do not provide a valid basis to change custody, other bases for finding a substantial change of circumstances existed in the record. However, we cannot determine from the record that the trial court would have found the other bases alleged exist or found them sufficient to justify a change of custody in the absence of the two factors the judge specifically set forth in his decision. Therefore, we reverse and remand the case to the trial court for further proceedings to determine whether the other grounds asserted by Father to support the change of circumstances constitute a substantial change of circumstances, and if so, in light of Jason's medical and special education needs, whether it would be in Jason's best interest for custody to be changed to Father.

Opinion Author: Laura Denvir Stith, Presiding Judge

Opinion Vote: REVERSED AND REMANDED. Howard and Newton, J.J., concur.

Opinion:

Mary C. Lewis (Mother) appeals the decision of the trial court granting a motion to modify filed by Allen E. Johnson (Father), in which Father requested the court to change primary physical custody of their son Jason from Mother to Father. Mother asserts the trial court erred in granting this change of custody because (1) there was no showing of a substantial change in circumstances, and (2) even if there were a substantial change in circumstances, the modification of custody was not in the best interests of Jason. The trial court gave two grounds for finding a substantial change of circumstances existed: that Jason wanted to live with Father and that Father would provide a better home environment. We agree with Mother that, because neither of these circumstances constitutes a substantial and continuing change in circumstances of the child or his custodian, they did not provide a basis for the trial court to find a "change of circumstances" existed as that phrase is used in Section 452.410 RSMo 1994.

While Father alleges that other bases for finding a substantial change of circumstances existed, we cannot determine on this record that the trial court found these bases to exist or found them sufficient to constitute a substantial change in circumstances. We therefore remand for the trial court to determine whether the other grounds asserted by Father below to support the change of circumstances constitute a substantial change of circumstances, and, if so, whether it would be in Jason's best interest for custody to be changed to Father. In determining the latter issue, the court should consider whether Jason has special education needs, as alleged by Mother, and, if so, whether those needs will be met by the parent given primary physical custody of Jason.

I. FACTUAL AND PROCEDURAL HISTORY

The marriage of Mother and Father was dissolved on November 26, 1984. Two children had been born to them during the marriage: Anthony, born September 12, 1975, and Zachary, born September 9, 1980. In the dissolution decree, the court awarded custody of the then minor children to Mother. On February 4, 1987, the court found that a third child, Jason, born April 30, 1986, was also the child of Mother and Father, and awarded custody of Jason to Mother.

Mother and Father both became involved in a variety of relationships following the dissolution. Father remarried on four separate occasions. On the third occasion, Father married Cheryl, but they divorced in 1997. After Father and Cheryl's divorce, Father married another woman, Susan. Father was in the process of dissolving his marriage to Susan at the time of the modification hearing and was living with and said to be engaged to be married again to his former wife, Cheryl. He said that once they married, he and Cheryl planned to move to Arkansas, and wanted Jason to move with them.

Sometime after the dissolution, Mother became involved in a relationship with a man named Jim Bradley. The parties' oldest child, Anthony, did not get along well with Mr. Bradley, and in 1992 he expressed a desire to live with his Father. Mother consented to this arrangement, and, on April 14, 1993, an order of modification was entered awarding custody of Anthony, then 17 years old, to Father. Mother retained custody of the two younger children, Zachary and Jason, and the order permitted her to relocate with the children to Minnesota. Mother later began a relationship with Peter Lewis, and married him in early 1997. Mother, Peter, Zachary and Jason all lived together in New York. At this time, Jason was having difficulty in school and was diagnosed with attention deficit hyperactivity disorder (ADHD). Jason was enrolled in special education at school and was taken to special tutoring classes two nights each week.

On October 23, 1997, Mother filed a motion to modify child support, visitation, and a determination of monies due. On December 1, 1997, Father responded. He requested additional visitation, abatement of child support during visitation, joint legal custody, and for hospital insurance to be paid by Mother's new husband. In the Summer of 1998, Jason spent six weeks of visitation with his Father. During this time, Father asserted, Jason expressed a desire to live with Father and Cheryl once they remarried. However, Jason did not testify and thus there was no direct evidence as to his wishes. On July 21, 1998, Father filed a cross-motion to modify in which he requested custody of Jason and permission to move with Jason to Arkansas. On August 19, 1998, the court held a hearing on both motions. Much of the evidence concerned Father's alleged change of circumstances in light of his planned remarriage to Cheryl and planned move to Arkansas. It also addressed the best interests of Jason. Mother testified as to Jason's diagnoses of cerebral palsy, ADHD and a learning disability, his participation in the special education program at public school, as well as his regular attendance at a private learning center. Mother stated that she meets with Jason's teachers periodically to track his progress, and explained that whenever she attempts to speak with Father about Jason's problems, Father hangs up the telephone. Father, on the other hand, stated that he was not a firm believer that Jason is in need of special education, and noted his belief that that Mother is an alarmist and that she exaggerates Jason's situation. He stated that if Jason has problems, he will address them, and stated that he had taken steps to speak with the public school district in Arkansas about its special education program. He also alleged Mother failed to keep him informed as to Jason's medical and educational problems.

On November 3, 1998, the court entered its order modifying its dissolution decree, finding a substantial change in circumstances existed that warranted a change in the primary physical custody of Jason from Mother to Father because (1) Jason wanted to live with Father, and (2) Father's living environment was superior. Mother appeals.

II. STANDARD OF REVIEW

Our review of a judgment modifying child custody is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). We will 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.; Bomar v. Kurtz, 951 S.W.2d 657, 659 (Mo. App. 1997). We give greater deference to the trial court in child custody cases than in other types of cases because the trial court is in the best position to judge the credibility of the...