McCauley v. Schenkel

• Decision Date: 28 July 1998
• Docket Number: No. 72766,72766
• Citation: 977 S.W.2d 45
• Parties: Robin E. McCAULEY, Appellant, v. Steven SCHENKEL, Respondent.
• Court: Missouri Court of Appeals

Page 45

977 S.W.2d 45

Robin E. McCAULEY, Appellant, v. Steven SCHENKEL, Respondent.

No. 72766.

Missouri Court of Appeals,

Eastern District,

Division Five.

July 28, 1998.

Rehearing Denied Sept. 30, 1998.

Susan M. Hais, James P. Carmody, Clayton, for appellant.

Lynn C. Ricci, St. Louis, for respondent.

RICHARD B. TEITLEMAN, Judge.

Robin E. McCauley (Mother) and Steven Schenkel (Father) each respectively filed motions to modify their dissolution decree which had awarded the parties joint legal custody and joint physical custody of their daughter, Claire. In their respective motions to modify, each party sought primary physical and legal custody of Claire. Mother appeals the trial court's order which (a) continued joint legal custody and (b) modified the physical custody schedule to a divided custody/alternating week schedule. Mother contends, inter alia, that the trial court's determination that continued joint legal custody would be in the best interests of the child is not supported by substantial evidence, and that the court also erred in its provisions concerning the physical custody arrangement. We reverse and remand with directions.

Background

Mother and Father were married in October, 1986. Both are professionals. Mother is a doctor of chiropractic and associate professor at Logan College of Chiropractic, and Father is a music Ph.D. and professor of music and media at Webster University. Mother and Father had one child, Claire, born on September 10, 1991.

The parties separated in April, 1994. A Decree of Dissolution was granted on August 2, 1994. The decree incorporated the provisions of a rather detailed "Property Settlement Agreement and Child Care Plan," which had been prepared by a mediator. Mother and Father were awarded joint legal custody and joint physical custody of Claire. Under the decree, Claire changed households four times during the week, alternating between Mother and Father. Additionally, the decree contained provisions for holidays, special days and vacations. Those provisions alternated six major holidays between the parties and also set a schedule for birthdays, Mother's Day and Father's Day. There were no specified vacation periods, but the decree stated:

At any time during the year ... each parent shall have the option of having Claire in his or her care for travel outside the St. Louis metropolitan area for up to eight weeks each year in periods not to exceed four consecutive weeks in length with at least 60 days written notice.

The decree stated that "holiday and special day plans shall supersede week-to-week arrangements, and out-of-town vacation plans supersede both week-to-week and holiday and special day arrangements, except Christmas."

The decree had separate sections concerning health care and education decisions. Generally, on education, it provided that: "Both parents are committed to private school education for Claire, and will discuss and agree on any decision regarding changes of schools, private schooling, special education needs, counseling, or tutoring."

Problems Following the Decree

Numerous problems began to occur almost immediately after the decree, particularly regarding the physical custody schedule. The problems included, but were not limited to, obvious signs of stress and difficulties caused for Claire by the frequency of back and forth household changes.

Additionally, personal tension, acrimony and constant bickering between Mother and Father were also a problem. Mother accused Father of being verbally abusive in telephone conversations and, at Mother's insistence, the two agreed to communicate with each other by written letters.

Disputes arose concerning Mother's plans to travel with Claire over certain holidays. The decree contained a "vacation loophole" provision that gave out-of-town trips priority over holiday and custody time. Mother twice attempted to use this loophole. Father and Mother disputed Mother's plans to travel with Claire over the July 4 th, 1995 holiday. Mother sent Father a notice in late April or early May 1995 that she would be traveling out-of-town with Claire over the July 4 th holiday. She claimed she had been unable to schedule the trip earlier because of Father's out-of-town plans. Though this notification was within the provision of the decree regarding out-of-town travel, Father responded by sending Mother a schedule of his "future travel plans" for himself and Claire. This schedule included most major holidays through the year 2001.

Mother also desired to schedule a trip with Claire to visit relatives from December 15 until December 20, 1995. Father initially said it would be "fine" for Claire to go, so Mother booked a flight. Subsequently, Father requested two separate "compensation days" with Claire and he declared that if Mother did not "respond in the affirmative," then she should "not plan on any travel with Claire during the month of December." Mother agreed to the requested "compensation days," but also informed Father that she anticipated the Christmas holiday would be scheduled according to the decree, rather than under a looser arrangement that he wanted. Dissatisfied, Father asked Mother shortly before the trip if she still planned to leave town with Claire. When she told Father that she was still planning to go, Father told her, in Claire's presence, that he would "have [Mother] arrested" when she arrived if she took the trip with Claire. Father then contacted the local police department and reported that Mother was going to travel with Claire without his consent. A police officer came to Mother's house and spoke to Mother and Claire about the planned trip and took no further action.

Father never reconsidered his position and Mother cancelled the trip. On December 19th, which would have been the second to the last day of Mother's trip with Claire, Father sent Mother a note enclosing an article from the St. Louis Post Dispatch concerning the arrest of a mother for kidnapping her 3-year old son. Father signed the note "Love, Steve."

Disputes over education-related matters also arose. For instance, Mother enrolled Claire in a dance class during Father's custody time without consulting him first. Mother also enrolled Claire in a program called "Broken Rainbow" that Father objected to because of what he perceived to be its "anti-father bias."

Additionally, the parties disagreed as to whether Mother could occasionally ask someone else to pick up Claire from pre-school. At times, Mother had asked a woman named Louise Keney to pick up Claire from pre-school during Mother's physical custody periods. Ms. Keney has known Mother and Father for about ten (10) years and she has watched Claire at Father's request as well as Mother's. In January 1996, after Ms. Keney had picked up Claire at pre-school, Father wrote a letter to Claire's school stating:

As of this date, Claire is not to be picked up from school by anyone other than her Mother or me on any occasion without my written permission for that specific occasion.

Shortly after writing the letter, Father kept Claire home from school, and when Ms. Keney tried to pick up Claire at Father's house at Mother's request, he would not release Claire until the police were involved.

Motions to Modify and the Rohan Woods School Dispute

In January, 1996, Mother filed a Motion to Modify the Decree, seeking to terminate joint legal and joint physical custody, and seeking an award of primary physical and legal custody of Claire, subject to reasonable rights of temporary visitation and temporary custody of Father.

In April, 1996, Father filed his cross Motion to Modify the Decree seeking sole custody. Father stated that if he were awarded sole custody, he would equally share custody with Mother.

While the Motions were pending, a much more serious dispute developed involving Claire's placement in Rohan Woods School. Both parents had agreed that they desired for Claire to attend Rohan Woods. However, when the school sent Claire's acceptance letter and contract to Mother, and sent a carbon copy to Father, Father became very angry and sent a letter to the Rohan Woods Headmaster. Father stated, in pertinent part:

I apparently did not make myself clear during our visit last month. I will be party to no agreement that I have not read. I will make no payments for tuition to your school unless I am fully a part of all transactions and mailings. [Mother] does not have sole or primary custody of my daughter; we have joint custody.... I insist on being a major participant in Claire's education.

I am not interested in being "CC'ed" on letters to [Mother]. I have a name and an identity separate from my ex-wife's. If I am to be a financial participant in Claire's life I must insist on also being regarded as a full parent with full rights and opportunities to contribute to Claire's upbringing. Anything less is totally unacceptable to me.

As a result of this letter, the Headmaster wrote Father back and withdrew Claire's acceptance to Rohan Woods because it was "apparent from the content and tone of your letter that there are some unsettled issues in the divorce." In response, Father sent the Headmaster a letter thanking him for "understanding the plight of the divorced father."

In the meantime, other private schools in the area were wait-listing students who had not already been accepted. Mother contacted every major private school regarding enrollment for that fall and found one, Andrews Academy, that Claire could still attend. Mother scheduled Claire for a Kindergarten evaluation at Andrews Academy, then informed Father of the appointment. In response, Father cancelled the appointment at Andrews Academy and sent Mother a letter stating he had "never heard of Andrews Academy" and accusing Mother of attempting to "subvert [his] role in raising [their] daughter." Mother proceeded in attempting to get Claire evaluated and accepted into Andrews Academy, then sent Father a letter...