Morgan v. Morgan

Citation497 S.W.3d 359
Decision Date30 August 2016
Docket NumberED 103426
Parties Jamie Morgan, Appellant, v. Justin Morgan, Respondent.
CourtCourt of Appeal of Missouri (US)

Daniel R. Schramm, Chesterfield, MO, for appellant.

George E. Tillman, St. Charles, MO, for respondent.

Lisa P. Page
, Judge

This is an appeal by Jamie Morgan (Mother) from the trial court's judgment modifying a previous judgment dissolving her marriage to Justin Morgan (Father). We affirm.


On or about April 11, 2011, the marriage as between Mother and Father was dissolved pursuant to a consent judgment (“Dissolution Judgment”) entered by the Circuit Court of St. Charles County. Therein, the court awarded Mother and Father joint legal custody of their two minor children born of the marriage: K.M. (then age 6) and O.M. (then age 4) (collectively, “Minor Children”). Additionally, Mother was awarded “primary physical custody ... subject to [Father's] rights of temporary custody and visitation pursuant to the Parenting Plan.” The Dissolution Judgment also awarded Mother $935 per month as and for the support of two children to be paid by Father.

Pursuant to the Dissolution Judgment, during the school year, Father was awarded physical custody of Minor Children every other weekend (beginning Friday at 6:00 P.M. and ending on Sunday at 6:00 P.M.) and one weekly visitation (beginning at 5:00 P.M. and ending at 8:00 P.M. on the same evening). During summer break, Father's weekly visitation converted to a weekly overnight visitation, in addition to the continued every other weekend schedule. Further, during summer break, Father was awarded six weeks (to be exercised in two-week intervals) of custody. Throughout the year, Mother and Father alternated holidays and birthdays. At all other times therein, Mother was awarded physical custody of Minor Children.

Two years after the entry of the Dissolution Judgment, on April 12, 2013, Father filed a motion to modify the Dissolution Judgment in which he sought sole legal custody, sole physical custody, and other relief. Mother filed a cross-motion to modify, seeking sole legal custody, a modification of father's visitation, and other relief. Mother also filed a cross-motion for contempt in which she sought, inter alia , interest on father's past-due child support. A Guardian ad litem was appointed (“GAL”).

After trial, the trial court awarded, inter alia , Father sole legal and sole physical custody of Minor Children, with rights of visitation afforded to Mother (“Modification Judgment”). In effect, Mother was awarded almost the exact amount of physical custody as Father was previously awarded under the Dissolution Judgment. Furthermore, the Modification Judgment ordered Mother to pay Father $236 per month as and for the support of two children. Mother was also ordered to pay approximately $4,500 of Father's attorney's fees.

This appeal now follows.


Mother contends, in four separate points on appeal, the trial court erred in entering the Modification Judgment. Specifically, Mother claims the Modification Judgment improperly adjudicated physical and legal custody of Minor Children, child support arrears, and attorney's fees. We will discuss, in considerable detail, the particulars of each point throughout the analysis.

Standard of Review

The applicable standard of review requires this court to affirm the trial court's judgment unless it is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976)

; see also Dawson v. Dawson, 366 S.W.3d 107, 112 (Mo.App.W.D.2012). The trial court's determination is given greater deference in child custody cases than in other cases. Huffman v. Huffman, 11 S.W.3d 882, 885 (Mo.App.W.D.2000) ; Beshers v. Beshers, 433 S.W.3d 498, 505 (Mo.App.S.D.2014) (“An appellant seeking to reverse a trial court's ruling concerning custody of a child has to overcome a high standard of review.”).

The trial court is in a superior position to weigh all the evidence and render a judgment based upon that evidence; as such, the judgment is to be affirmed under any reasonable theory supported by the evidence. Love v. Love, 75 S.W.3d 747, 754 (Mo.App.W.D.2002)

. “The trial court's determination of custody will not be disturbed on appeal unless this court is firmly convinced it is erroneous and the award is against the child's best interests[.] Bather v. Bather, 170 S.W.3d 487, 492 (Mo.App.W.D.2005).

Point I: Modification of Physical Custody

In her first point on appeal, Mother contends the trial court erred in entering the Modification Judgment and ordering a change in sole physical custody of Minor Children from Mother to Father. Specifically, Mother maintains the trial court's determination is against the weight of the evidence, in that the trial court: (1) was “overly-influenced” by the GAL's recommendation regarding the appropriate school district for Minor Children; (2) relied upon “stale” evidence when assessing Minor Children's school attendance records; (3) failed to account for or give proper weight to Father's admission that Minor Children were succeeding in Mother's school district; (4) conferred undue weight to Father's testimony regarding the quantity of Mother's relocations since the Dissolution Judgment; (5) accorded undue weight to Mother's failure to provide Father's contact information to the Minor Children's schools; and (6) assigned undue weight to Mother's unanswered requests for admissions. Ostensibly, Mother's Point I argues the trial court erred in modifying the physical custody arrangement because said modification was not in Minor Children's best interest.

It should be noted that although not expressly set forth in a separate point on appeal, Mother also contends, via her analysis and argument under Point I, the trial court erroneously declared or applied the law in finding substantial change in circumstances as to Mother (the custodian under the Dissolution Judgment) or the Minor Children.1 Specifically, Mother argues the trial court's finding of substantial change of circumstances related to Father, the noncustodial parent.

A. Physical Custody Modification Standards

Initially, there appears to be significant confusion regarding the standard applicable to the modification of the physical custody at issue. The confusion springs from both the complex nature of our custody statutes and appellate court attempts to create clarity in an area of law that is increasingly challenged by evolving societal standards. We, herein, attempt to provide precision and simplicity for future trial courts and litigants confronted with motions to modify.

In Missouri, two distinct statutes “govern the modification of prior parenting arrangements.” Russell v. Russell, 210 S.W.3d 191, 196 (Mo.banc 2007)

; see Sections 452.410, 452.400.2. The separate statutes give rise to differing standards regarding the modification of physical custody arrangements. We will address each statute, and the modification standards springing therefrom.

1. Modification Standards

Section 452.410 governs the modification of child custody decrees. Frantz v. Frantz, 488 S.W.3d 167, 175 (Mo.App.E.D.2016)

(citing Russell, 210 S.W.3d at 196 ). Generally, a modification of a child custody decree can reasonably be interpreted to apply to those instances where a court is requested to modify the “custody” designation. Prach v. Westberg, 455 S.W.3d 513, 516 (Mo.App.W.D.2015). A “custody” designation refers to joint legal custody, sole legal custody, joint physical custody, and sole physical custody. See Section 452.375.1(1).

Pursuant to Section 452.410, when deciding a motion to modify a child custody decree, the trial court must engage in a two-step analysis. In re Marriage of Swallows, 172 S.W.3d 912, 914 (Mo.App.S.D.2005)

(“That statute [Section 452.410.1] provides a two-step process that courts must follow when determining whether or not to modify an earlier custody order.”). First, as a threshold matter, a modification of a child custody decree is justified if “a change has occurred in the circumstances of the child or his custodian based upon “facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree[.] Section 452.410.1 (emphasis added). Second, if the trial court finds a change of circumstances as to the child or his custodian, then the trial court must determine whether a modification “is necessary to serve the best interests of the child.” Id;see also Tienter v. Tienter, 482 S.W.3d 483, 488–89 (Mo.App.E.D.2016). A finding of a change in circumstances is a precursor to a finding that the best interests of the child necessitates modification. Tilley v. Tilley, 968 S.W.2d 208, 212 (Mo.App.S.D.1998).

Typically, uncertainty and perplexity arise as to whether the parent seeking to modify must prove either a “change in circumstances” or a substantial change in circumstances.” See Russell, 210 S.W.3d at 196–98

. Thus, the recognition of these two related, but distinct, standards implies Section 452.410 breeds two differing burdens of proof for purposes of motions to modify. The application of each depends on the modification sought, so as to conform to this State's declared public policy. We address the application of each burden of proof.

Section 452.410 Statutory Standard

First, the “change in circumstances” burden of proof—or the Section 452.410 Statutory Standard”—applies in those instances where the modification sought does not “deprive one custodial parent of custody altogether.” Russell, 210 S.W.3d at 194

. Accordingly, by definition, this Section 452.410 Statutory Standard” applies in only two circumstances:

(1) Joint Physical Custody to Joint Physical Custody : When a joint physical custodial parent seeks to modify the physical custody arrangement, but requests that both parties remain joint physical custodians, the Section 452.410 Statutory Standard” a

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