McIntosh v. McIntosh, ED 99303.

• Decision Date: 11 June 2013
• Docket Number: No. ED 99303.,ED 99303.
• Citation: 400 S.W.3d 860
• Parties: Mattox Kelley McINTOSH, b/n/f Michela Danielle Steinmeyer, Respondent, v. Justin William McINTOSH, Respondent, and Valerie Steinmeyer and Michael Steinmeyer, Appellants.
• Court: Missouri Court of Appeals

400 S.W.3d 860

Mattox Kelley McINTOSH, b/n/f Michela Danielle Steinmeyer, Respondent,
v.
Justin William McINTOSH, Respondent,
and
Valerie Steinmeyer and Michael Steinmeyer, Appellants.

No. ED 99303.

Missouri Court of Appeals,
Eastern District,
Southern Division.

June 11, 2013.

[400 S.W.3d 861]

Alan Agathen, Clayton, MO, for appellant.

David M. Remley, Cape Girardeau, MO, for respondent.

ROBERT G. DOWD, JR., Judge.

Valerie and Michael Steinmeyer (“Grandparents”) appeal from the judgment of the trial court modifying a 2009 custody order and awarding Michela Steinmeyer (“Mother”) sole legal and physical custody of her daughter. Grandparents argue the trial court erred because: (1) it incorrectly used Section 452.375.5 ¹ to

[400 S.W.3d 862]

modify the 2009 custody order rather than Section 452.410; and (2) it incorrectly found a change in circumstances sufficient to warrant modification under Section 452.410. We affirm.

Prior to 2009, Mother had sole custody of Child following a 2006 court order establishing paternity. In 2009, Mother and Grandparents engaged in mediation and agreed it was in Child's best interest for Mother and Grandparents to have joint legal and physical custody. Under the arrangement, Grandparents had physical custody of Child on Monday through Thursday from 3:00 p.m. to 7:00 p.m. and from Friday at 3:00 p.m. until Saturday at 4:00 p.m.

Mother filed a Motion to Modify the 2009 order, alleging a change in circumstances requiring modification. Specifically, Mother had secured gainful employment and gotten married. Following a hearing, the trial court granted Mother's motion, giving her sole legal and physical custody of Child and granting Grandparents visitation rights on Monday through Thursday from 3:00 p.m. until 7:00 p.m. This appeal follows.

For their first point, Grandparents argue the trial court erred in using Section 452.375.5 to modify the custody order rather than Section 452.410. We disagree.

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. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We presume the trial court's order is correct and grant the trial court greater deference in child custody cases. Alt v. Alt, 896 S.W.2d 519, 520 (Mo.App. W.D.1995).

Modification of a child custody decree is governed by Section 452.410 which 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.” Section 452.410 (emphasis added). Section 452.375.5, on the other hand, provides that custody may be awarded to a non-parent when both parents are found...