Jones v. Jones

• Decision Date: 07 December 1999
• Parties: (Mo.App. W.D. 2000) Deborah A. Young, Respondent, v. Gregory S. Young, Appellant, and Saundra A. Rush, Intervenor-Respondent. WD56894 0
• Court: Missouri Court of Appeals

10 S.W.3d 528

JACKIE LEE JONES, Appellant, v. AMY ELIZABETH JONES, Defendant, and BETTY WARD, Respondent.

WD 56541

COURT OF APPEALS OF MISSOURI, WESTERN DISTRICT

December 7, 1999, Filed

Karen M. Hunt, Sedalia, MO, Attorney for Appellant.

Max E. Mitchell, Sedalia, MO, Attorney for Respondent.

Before: Ulrich, P.J., and Smith and Howard, JJ.

Jackie Lee Jones (the father) appeals the judgment of the Circuit Court of Pettis County modifying its decree dissolving his marriage to Amy Elizabeth Jones (the mother), by changing the legal custody of their son, Caleb Lee Jones (Caleb), from the father and mother and his physical custody from the mother to the respondent, Betty Ward, Caleb's maternal grandmother (the grandmother).

In his sole point on appeal, the father claims that the trial court erred in modifying its prior custody decree by awarding sole legal and physical custody of Caleb to the grandmother because, in doing so, the court misapplied the law, and its order was against the weight of the evidence.

We affirm.

Facts

Jackie Lee Jones and Amy Elizabeth Jones were married in January 1986. Their son, Caleb, was born on May 10, 1986. On July 21, 1988, the marriage was dissolved by decree of the Circuit Court of Pettis County, Missouri.

Pursuant to the court's decree, the father and mother were awarded joint legal custody of Caleb, with primary physical custody to the mother, provided that she continued to live in her parents' home. The court found that both parents had engaged in inappropriate and illegal behavior and that Caleb was being properly cared for in large part due to the influence of the mother's parents, especially the grandmother, Betty Ward. In order to move from her parents' home, the mother was required to file a written request with the court asking permission and provide a copy of that request to the father. The father was awarded reasonable visitation rights with Caleb, and was required to pay child support and maintain health insurance for him.

After her marriage was dissolved, the mother lived sporadically in her parents' home, while the grandmother provided support and care for Caleb. The grandmother oversaw his educational and social development, as well as taking care of all of his health needs. Caleb was diagnosed as having Attention Deficit Hyperactivity Disorder (ADHD) and began taking medication for the condition. The father testified that he was wary of Caleb's medication and expressed that alternatives should be explored in dealing with his condition. As a result of the grandmother's day-to-day supervision and care of Caleb, a very close and loving bond developed between them such that he thought of her as his mother. During this time, the father frequently exercised his visitation rights and also bonded with Caleb. In fact, Caleb testified that he loved his father and did not want to lose him.

Sometime in 1995, the mother's boyfriend, Dwight D. Smith, moved into the grandmother's residence. On October 10, 1995, the mother gave birth to Caleb's half-brother, Nathan M.P. Smith. On October 22, 1997, the grandmother petitioned for and received letters of guardianship for Nathan in the Circuit Court of Pettis County. In her petition, she alleged that Nathan's parents were unfit to serve as custodians in that his father was incarcerated and his mother was leading a lifestyle not suitable for custody of the child and was leaving him for extended periods of time with her to provide for his care and supervision. The grandmother did not petition for a guardianship as to Caleb nor did she advise Caleb's father as to the proceeding with respect to Nathan.

On November 26, 1997, the father filed a motion to modify the court's dissolution decree requesting a change of legal and physical custody to him, alleging that a substantial and continuing change had occurred in the mother's circumstances, specifically that she was not living with her parents and was continuing to engage in narcotic activities. The grandmother filed a motion to intervene in the case on December 26, 1997, and a motion to modify custody to her on January 21, 1998, also alleging that a substantial and continuing change of the mother's circumstances had occurred and that Caleb's best interests would be served by awarding her sole legal and physical custody.

The grandmother's motion to intervene was allowed over the father's objection. The trial court heard evidence on the parties' motions to modify on September 24, 1998. The court sustained the grandmother's motion on two stated grounds: (1) it found that the father would not pay proper attention to Caleb's ADHD condition; and (2) it found that Caleb had bonded with the grandmother and that he treated her as his mother, such that it would not be in his best interests to remove him from the grandmother's home.

This appeal follows.

Standard of Review

Our standard of review in a modification of custody case is governed, as in other judge-tried cases, by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), interpreting what is now Rule 73.01(c). McCreary v. McCreary, 954 S.W.2d 433, 438-39 (Mo. App. 1997). Under this standard, we will affirm the judgment of the trial court unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Id.; Reeves-Weible v. Reeves, 995 S.W.2d 50, 55 (Mo. App. 1999); Rogers v. Rogers, 923 S.W.2d 381, 383 (Mo. App. 1996). "Because the trial court is in the best position to weigh all the evidence and render a judgment based on the evidence, the judgment is to be affirmed under any reasonable theory supported by the evidence." Guier v. Guier, 918 S.W.2d 940, 946 (Mo. App. 1996)(citation omitted).

In reviewing an order modifying child custody,

[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 a firm belief that the judgment of the trial court was incorrect. In child custody matters the trial court's determination must be given greater deference than in other cases.

Id. (citations omitted). We will view the evidence in the light most favorable to the decision of the trial court. McCreary, 954 S.W.2d at 439. "When there is conflicting evidence, the trial court has the discretion to determine the credibility of the witnesses, accepting or rejecting all, part, or none of the testimony it hears." Guier, 918 S.W.2d at 946.

I.

In two subpoints of his sole point on appeal, the father claims that the trial court erred in modifying its prior custody decree by awarding sole legal and physical custody of Caleb to the grandmother because: (1) in doing so, it misapplied the law; and (2) its order was against the weight of the evidence. In claiming that the circuit court misapplied the law in modifying its custody decree, the father contends that the court misapplied §§ 452.410.1 and 452.375.5(5)(a). Specifically, he contends that the trial court was required to apply the "parental presumption," found in § 452.375.5(5)(a), and failed to do so such that its award of custody to the grandmother misapplied the law of this statute.

Section 452.410 governs the modification of a custody decree. It sets forth the standard which must be met before the trial court can modify its decree with respect to its provisions concerning the custody of a minor child. McCreary, 954 S.W.2d at 439. Section 452.410.1 provides, in pertinent part:

the court shall not modify a prior custody decree unless it has jurisdiction under the provisions of section 452.450 and 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.

"A finding of changed circumstances under this section, is 'a precursor to a finding that the best interests of the child necessitate a modification of a prior custody decree . . . .'" McCreary, 954 S.W.2d at 439 (quoting Guier, 918 S.W.2d at 947). There is no dispute on appeal as to there being a change of circumstances sufficient to support modification of custody under § 452.410.1. Both the father, as the movant, and the grandmother, as the intervenor/movant, sought a change of custody below, alleging that there was a substantial and continuing change in the circumstances of the mother necessitating a change in Caleb's custody. For her part, the record does not reflect whether the mother filed an answer to the father's or grandmother's motion to modify. Further, although she did appear pro se at the hearing on the motions of the father and grandmother, she did not testify and does not appeal from the trial court's decree of modification. Thus, the only dispute on appeal is over who should have custody, the father or the grandmother.

In its voluntary findings on the record at the close of the hearing, the trial court stated that the original decree [made] a finding that both parents engaged in inappropriate and illegal behavior. And that finding caused the Court to believe that there was no suitable parental custodian. And the law required that a third party could not have custody unless that third party were actually a party in the lawsuit. And so the Court fashioned a relief which put this child with Betty Ward [the grandmother]. And that was because of the misconduct of both parties.

With respect to the court's statement that the law at the time of the father and mother's dissolution required the joinder of a third party receiving custody, § 452.375.5(5)(a)presently requires, inter alia, that: "Before the court awards custody, temporary custody or visitation to a third person under this subdivision, the court shall make that person a party to the action." The version of the statute which went into effect on August 13,...