Jones v. Jones and Ward
| Decision Date | 07 December 1999 |
| Citation | 10 S.W.3d 528 |
| Parties | (Mo.App. W.D. 1999) . Jackie Lee Jones, Appellant v. Amy Elizabeth Jones, Defendnat, and Betty Ward, Respondent WD56541 Missouri Court of Appeals Western District Handdown Date: |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of Pettis County, Hon. Gary W. Fleming, Judge
Counsel for Appellant:
Counsel for Respondent:
Opinion Summary:
Jackie Lee Jones (the father) appeals the circuit court judgment modifying its decree dissolving his marriage to Amy Elizabeth Jones (the mother), by changing the legal custody of their son from the father and mother and his physical custody from the mother to the respondent, Betty Ward, their son's maternal grandmother (the grandmother).
AFFIRMED.
Division Three holds:
Section 452.410 governs the modification of a custody decree. It requires a court to first find changed circumstances of the child or custodial parent, then that the child's best interests require a modification of the prior custody decree. There is no dispute in this case that a change in circumstances has occurred to warrant a modification.
This case does not involve the changing of physical custody of a child from a third-party custodian, but the changing of physical custody from a natural parent. This fact is significant in that it determines whether the parental presumption found in section 452.375.5(5)(a) would apply, as contended by the father. Because a noncustodial parent and a noncustodial grandparent both are seeking a change of custody from a custodial parent, the grandmother, to be entitled to custody, was required to rebut the parental presumption in favor of the father.
If either the fitness or welfare basis is shown, the statute then requires that the trial court determine whether it is in the best interests of the child to award custody to any other person deemed by the court to be suitable and able to provide an adequate and stable environment for the child. As such, if the presumption is not rebutted by proof of either the fitness or welfare basis, the question of the child's best interests is never reached.
In the case at bar, the grandmother did not plead or prove, or assert on appeal, nor did the trial court find, that the father, at the time of the modification hearing, was unfit, unsuitable, or unable to be a custodian. Thus, before the trial court here could award custody to the grandmother, it first had to find that she had rebutted the parental presumption in favor of the father by pleading and proving the "welfare" basis found in the statute, that Caleb's welfare required an award of third-party custody. The totality of the circumstances evidenced on the record, which included significant bonding between the grandmother and Caleb, was sufficient to determine that the grandmother had rebutted the parental presumption.
Having determined that the evidence was sufficient to rebut the father's parental presumption does not end the inquiry. In deciding whether the trial court erred in awarding Caleb's custody to the grandmother, section 452.375.5(5)(a) still requires determining whether the evidence was sufficient to establish that it was in Caleb's best interests to award custody to the grandmother. In looking at the record and viewing it in a light most favorable to the trial court's decision, sufficient evidence exists from which the trial court could have found that it was in Caleb's best interests to award his custody to the grandmother. Therefore, the trial court did not misapply the law in awarding custody of Caleb to the grandmother, and that its decision in doing so was not against the weight of the evidence.
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.
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.
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).1 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...
To continue reading
Request your trial
-
Jones v. Jones
... 10 S.W.3d 528 ... JACKIE LEE JONES, Appellant, ... 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 ... [10 ... ...