Moore v. Moore, WD

• Decision Date: 16 March 1993
• Docket Number: No. WD,WD
• Citation: 849 S.W.2d 652
• Parties: Michael Scott MOORE, Respondent, v. Carol Patrick MOORE, Appellant. 46012.
• Court: Missouri Court of Appeals

Page 652

849 S.W.2d 652

Michael Scott MOORE, Respondent, v. Carol Patrick MOORE, Appellant.

No. WD 46012.

Missouri Court of Appeals Western District.

March 16, 1993.

Joseph Y. DeCuyper, DeCuyper & Associates, Kansas City, for appellant.

Barton S. Blond, Sarah Recker Healy, Blond & Nigro, Kansas City, for respondent.

Before BERREY, P.J., and ULRICH and SMART, JJ.

ULRICH, Judge.

Carol Patrick Moore appeals from the March 4, 1992, judgment of the trial court modifying the court's July 5, 1984, decree dissolving her marriage with Michael Scott Moore and from the March 9, 1992, order of the trial court denying Ms. Moore's motion to fix an amount for and to approve a supersedeas bond. Ms. Moore contends the trial court erred in (1) modifying the child custody provisions of the prior decree, (2) overruling her cross-motion to modify the dissolution decree, and (3) overruling her motion to fix an amount for and to approve a supersedeas bond to stay the court's execution of its March 4, 1992, order. The March 4, 1992, modification order of the trial court is affirmed in part and reversed in part. The legal issues presented in point (3) are not addressed.

The marriage of Carol Patrick Moore and Michael Scott Moore was dissolved by entry of decree in the Circuit Court of Clay County, Missouri on July 5, 1984. Pursuant to the dissolution decree, Ms. Moore was awarded sole custody of the minor child of the marriage, Kevin Michael Moore, who was born April 2, 1982. Mr. Moore was granted express visitation rights with Kevin and was ordered to pay child support.

On May 7, 1990, Mr. Moore filed a "Motion to Modify Decree as to Child Custody, or in the Alternative, Motion to Modify Decree as to Visitation; Motion to Modify Decree as to Support; and Motion for Order to Show Cause Why Respondent Should Not Be Held in Contempt." ¹ Ms. Moore filed her answer to Mr. Moore's motions and filed a cross-motion to modify as to child support, medical and dental insurance coverage for Kevin, visitation, and attorney fees on June 25, 1990.

A hearing on the motions was held commencing on November 15, 1991, and concluding on January 22, 1992. On March 4, 1992, the trial court issued a "Modification Order" in which the court granted Mr. Moore's motion to modify as to custody and declared Ms. Moore's cross-motion to be moot. The trial court found that "a change in the circumstances" of Kevin or Ms. Moore had occurred which was "so substantial and continuing" as to require that the original dissolution decree be modified with respect to child custody in order to serve Kevin's best interests. The trial court ordered that Mr. Moore and Ms. Moore share joint legal and joint physical custody of Kevin and designated Mr. Moore as Kevin's primary physical custodian.

On March 5, 1992, Ms. Moore filed a "Motion to Fix Amount of Supersedes Bond and to Approve a Supersedes Bond" in order to stay the execution of the March 4, 1992, order of the trial court. The trial court overruled this motion after a hearing on March 9, 1992. Ms. Moore appeals both the trial court's March 4, 1992, modification order and its subsequent denial of the motion for supersedeas bond.

I.

As her first point on appeal, Ms. Moore alleges that the trial court erred in modifying the July 5, 1984, decree based upon the findings specifically mentioned by the trial court because such findings are against the weight of the evidence and do not comply with section 452.410, RSMo Supp.1991. Section 452.410 governs modification of child custody and provides [T]he 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. Notwithstanding any other provision of this section or sections 452.375 and 452.400, any custody order entered by any court in this state or any other state prior to August 13, 1984, may, subject to jurisdictional requirements, be modified to allow for joint custody in accordance with section 452.375, without any further showing.

§ 452.410.1. The changes in circumstances enumerated by the trial court as warranting the modification were:

(a) The mother has minimized the contact of the child with his father and has demonstrated an inability to allow the child the frequent and meaningful contact with his father that the child desires and deserves.

(b) The mother has refused to allow the child to spend time with his father unless specifically required by the visitation order of July 5, 1984, in spite of the knowledge that the child and father desire to spend more time together, one example of which was her consistent refusal to let the father take care of the child when the mother was in need of child care providers or sitters.

(c) The child is older and in greater need of time with his father.

(d) The father has remarried, has a stable occupational and homelife, and now has a sincere desire to be a constructive influence in his son's life.

(e) The father has become the more likely of the two parents to allow the child frequent and meaningful contact with the other parent.

The scope of review of the trial court's findings in this court-tried civil case is defined in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The decree of the trial court will be sustained unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Id.

Examination of the transcript of the hearing on the motions reveals that the first two changes of circumstances found by the trial court are against the weight of the evidence. (Changes (a) and (b).) Mr. Moore admitted during the hearing that from the time of the divorce until he filed his motion to modify custody he "got Kevin when [he] was supposed to get him" according to the visitation provisions of original dissolution decree. Furthermore, Mr. Moore admitted that Ms. Moore had allowed him additional visitation with Kevin, over and above that required by the decree, until he filed the motion to modify. Ms. Moore testified that she had given Mr. Moore additional visitation with Kevin in the past but that after she received the motion to modify, she stopped allowing additional visitation, with only a few exceptions, on the advice of her attorney to "just go by the court's order." The evidence presented showed that rather than inhibiting visitation, Ms. Moore not only followed the visitation provisions of the divorce decree but also allowed Mr. Moore some, although not all, of the additional visitation with Kevin he had requested in the past.

The third change in circumstances found by the trial court (Change (c)) does not support transfer of Kevin's primary physical custody from Ms. Moore to Mr. Moore. It is true that at the time of the modification hearing Kevin was seven and one-half years older than he was at the time the original decree was rendered. However, the fact that a child has grown older is not, in and of itself, a change of condition sufficient to warrant a custody change. Betterton v. Betterton, 752 S.W.2d 417, 419 (Mo.App.1988).

Each party elicited expert psychiatric testimony regarding Kevin's need to have more time with his father. Mr. Moore's expert witness testified that Kevin needed additional time with his father. Ms. Moore's expert testified that Kevin should remain in his mother's custody but noted that the visitation provided Mr. Moore and Kevin was insufficient.

The trial court's finding that Kevin, now older, is in greater need of more time with his father is not trivial, but Kevin's need for additional time with his father can be appeased by granting additional visitation rights to Kevin's father. The close proximity of the parties' residences facilitates more frequent visitation between Kevin and his father.

The fourth change of circumstances found by the trial court (change (d)) concerns Mr. Moore. The change in circumstances required by section 452.410 must relate to the child or his custodian. Id. "The remarriage of a non-custodial parent is not alone enough to support a finding of changed circumstances." Id. Mr. Moore's circumstances are relevant only to a determination of whether his home is an acceptable place for Kevin to live, not as the evidence needed for a modification of his custody. Id.

The final change of circumstances cited by the trial court (change (e)) is against the weight of the evidence. Both Mr. Moore and Ms. Moore testified that Ms. Moore had complied with the court's orders in the past. ² While Ms. Moore had not granted every request made by Mr. Moore for increased visitation with Kevin and perhaps she had refused more times than she had granted, no evidence that Ms. Moore prevented Kevin from having "frequent and meaningful contact" with Mr. Moore was presented.

Missouri courts have found that there is much value in allowing children to remain with the parent who has had custody over a long period of time as against uprooting them to settle elsewhere. Id. As a result, once custody has been adjudicated, it is presumed that the custodian remains suitable and the burden of proving a change of circumstances justifying a change of custody is on the party seeking the change. Shoemaker v. Shoemaker, 812 S.W.2d 250, 254 (Mo.App.1991). Mr. Moore has not met his burden.

Mr. Moore argues in rebuttal that he did not need to show a change in the circumstances regarding Kevin or Ms. Moore in order for the trial court to modify custody. Mr. Moore maintains that as a result of the last sentence of section 452.410.1, which states that "[n]otwithstanding any other provision of this section or sections 452.375 and 452.400, any custody...