Meyer v. Block
| Decision Date | 30 December 2003 |
| Docket Number | No. WD 62256.,WD 62256. |
| Citation | 123 S.W.3d 316 |
| Parties | Stacey Renee (Block) MEYER, Appellant, v. Travis Len BLOCK, Respondent. |
| Court | Missouri Court of Appeals |
John T. Kay, California, for Appellant.
Sara C. Michael, Jefferson City, for Respondent.
Stacey Meyer (Mother) appeals the modification judgment rendered in favor of Respondent Travis Block (Father) with regard to his motion to modify child custody, visitation, and support. We hold that the trial court erred in shifting legal custody from joint custody to sole custody by Father and in finding that Father did not owe a child support arrearage. We reverse and remand on those issues, but affirm the judgment below in all other respects.
Mother and Father were granted a judgment dissolving their marriage on December 23, 1998. Although the parties recite that the dissolution court awarded joint legal custody, our review of the original decree reveals that "custody and control" of the minor child was given to mother. While the parties agreed in their separation agreement that they would share joint legal custody, that provision was not included in the decree. Mother was awarded physical custody, and Father was granted reasonable visitation. Father was also ordered to pay child support in the amount of $400.001 per month, in addition to half of the daughter's health care costs that were not covered by insurance. Mother was directed to maintain insurance for the child and to pay for the remaining half of any health care expenses that were not paid for by insurance. Mother was also given sole responsibility for providing for the child's daycare expenses.
Shortly after the entry of the judgment of dissolution, the parties changed the visitation schedule by mutual agreement. The original visitation schedule provided that Father would have visitation with the child each week from 4:00 p.m. Wednesday until 7:00 am the following morning, and every other week from 6:30 p.m. Friday until 6:30 p.m. Sunday. About a month after the dissolution, Father was allowed to have the child each week from Wednesday afternoon to noon on Saturday, as it was more convenient for the parties. As a result of this change, Father's overnights with the child increased from 104 to 156 nights.
Following the dissolution, Mother experienced a series of financial difficulties. While Mother was awarded the marital home in the dissolution, she was financially unable to maintain the mortgage payments on the residence. Her financial difficulties resulted in her filing bankruptcy in 2000. After moving through a series of rental residences, Mother moved in with her parents, where she was living at the time of the modification hearing. At various points, Mother fell behind in paying the child's daycare expenses. Father paid those expenses on the child's behalf, though he also partially withheld child support payments. Ultimately, Father paid the child's daycare expenses from January 2002 through at least October 2002.
Mother experienced other difficulties following the dissolution. Mother admitted herself for psychiatric treatment for depression in April 2000. She left her employment with the state around that time and was unemployed for seven or eight months. While there was no evidence that Mother's depression presented any danger to the child, there was some evidence at trial that Mother's financial and personal problems were having an adverse effect on her daughter's emotional well-being.
On February 22, 2002, Father filed a motion to modify the terms of the original decree of dissolution, seeking to change the child custody and support provisions within the original judgment. Specifically, Father asked that the court grant him sole legal custody of the child, with the parties sharing joint physical custody. Father also sought a change in the visitation schedule to conform to the informal visitation schedule that had been followed by the parties, plus additional time on Saturdays. Father indicated his willingness to the entry of an order making him solely responsible for the child's health insurance, health care, and daycare/education expenses. Lastly, he asked that the trial court not enter any child support order, save directing each party to be responsible for food or clothing for the child while she was in that party's care.
Mother filed a cross-claim seeking modification of child support. She also sought a judgment of contempt against Father for nonpayment of child support, based upon his withholding of child support payments during the period he was making payments to the child's daycare provider.
In its judgment, the trial court found that there had been a substantial and continuing change of circumstances for the following reasons:
(a) The parties had entered into an informal agreement changing the visitation schedule from that provided in the original decree
(b) Mother's present financial circumstances rendered her "unable to insure a secure and stable home environment for the minor child free of threat of financial ruin."
(c) Mother had failed to consult with Father regarding the health, education and welfare of the child. Specifically, Mother had failed to discuss with Father his proposal to change daycare provider as well as the child's schooling options.
(d) Mother had failed to maintain health insurance for the child, resulting in Father having to pay a $102.00 doctor bill.
(e) Father had been forced to pay the child's daycare expenses from January 2002 through October 2002.
Finding changed circumstances, the trial court modified the custody, visitation, and support provisions of the original dissolution decree, granting essentially all the relief sought by Father. The major modifications were as follows:
(1) Sole legal custody of the parties' daughter was awarded to Father, with the parents sharing joint physical custody.
(2) Mother was awarded visitation, on alternating weeks, from 4:00pm on Saturday or from 10:00am on Sunday until 4:00pm Wednesday.2
(3) Mother was found to have a presumed child support amount of $241.00 per month, which the court found was rebutted as unjust and inappropriate. It ordered that each party provide for the food and clothing expenses incurred by the child when she was in that party's custody and that neither party pay child support to the other.
(4) Father was ordered to provide health insurance for the child as well as pay all uninsured medical, dental, or related expenses.
(5) Father was ordered to pay the child's daycare and parochial school expenses.
(6) Father was found to have no support arrearage, based upon his payments of the child's daycare expenses from 01/2002 until the date of the modification judgment.
Mother now appeals the trial court's judgment.
Our standard of review in regard to an appeal of a judgment modifying child custody is akin to any other bench-tried case, and we proceed under the standard contained in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Brethorst v. Brethorst, 50 S.W.3d 864, 866 (Mo.App. 2001). We will affirm the judgment below unless it is not supported by substantial evidence, is against the weight of the evidence, or misstates or misapplies the law. Murphy, 536 S.W.2d at 32.
Because of the trial court's superior vantage in viewing the evidence and live testimony, we show deference to its determinations, viewing the evidence and the reasonable inferences that may be drawn therefrom in the light most favorable to the court's judgment. See Dixon v. Dixon, 62 S.W.3d 589, 592 (Mo.App.2001). Contrary evidence is disregarded. Brethorst, 50 S.W.3d at 866. That deference is even greater in child custody matters, where we presume that the trial court has acted in the child's best interests. See Dixon, 62 S.W.3d at 592. We will typically affirm the judgment on appeal, unless we are "firmly convinced that the [child's] welfare requires some other disposition." Id.
In the first of six points on appeal, Mother contends that the trial court's findings of changed circumstances were not supported by substantial evidence and were against the weight of the evidence.
Following an original custody adjudication, a presumption arises that the custodial parent remains suitable to retain custody. Humphrey v. Humphrey, 888 S.W.2d 342, 345 (Mo.App.1994). Therefore, to prevail upon a motion to modify child custody, the movant bears the burden to show evidence that (1) a change of circumstances has occurred regarding the child or the child's custodian and (2) that modification of the custody terms of the original decree is necessary to serve the child's best interests. See Sumnicht v. Sackman, 906 S.W.2d 725, 726 (Mo.App. 1995). Not every change of circumstances justifies modification of custody. Instead, the changed circumstances must be significant enough that the child would benefit from a change of custody and that such a change is necessary for the child's welfare. Smith v. Smith, 75 S.W.3d 815, 827 (Mo. App.2002).
The evidence was undisputed that the parties had voluntarily agreed on a different visitation schedule than that ordered in the decree. Father contends that this constituted a substantial change of circumstances regarding the child's visitation since the dissolution, and that this justified modifying the visitation schedule to conform with that agreement. Mother contends that this agreement cannot constitute a change of circumstances unless the evidence shows it resulted from a unilateral action by her contrary to the custody order. We disagree. On hearing a motion to modify, the court must consider claimed changes of circumstances in light of the last order (in this case the dissolution decree). See Weaver v. Kelling, 53 S.W.3d 610, 613 (Mo.App.2001). For nearly four years after the dissolution, the parties had, by...
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