Ndiaye v. Seye

• Decision Date: 10 May 2016
• Docket Number: WD 78558
• Citation: 489 S.W.3d 887
• Parties: Ndeye Marieme Ndiaye, Respondent, v. Cheikh Ibra Seye, Appellant.
• Court: Missouri Court of Appeals

489 S.W.3d 887

Ndeye Marieme Ndiaye, Respondent,

v.Cheikh Ibra Seye, Appellant.

WD 78558

Missouri Court of Appeals, Western District.

OPINION FILED: May 10, 2016

Linda G. Harris, Columbia, MO, Attorney for Respondent.

Patrick T. Ochs, St. Louis, MO, Attorney for Appellant.

Before Division Four: Alok Ahuja, Chief Judge, and Mark D. Pfeiffer and Karen King Mitchell, Judges

Karen King Mitchell

, Judge

Cheikh Ibra Seye (Father) appeals the trial court's judgment denying his motion to modify the parenting plan between himself and Ndeye Marieme Ndiaye (Mother), which was adopted by the court in 2012. The 2012 Judgment and Order granted the parents joint legal and physical custody of their two children, S.S. and M.S. In his motion to modify, Father sought sole legal custody and a modification of the joint physical custody of the children. He also requested that the trial court modify the child support award. The trial court found that there had not been a change in circumstances sufficient to warrant considering modification of either child support or custody. Father appeals. Finding no error, we affirm.

Background¹

The marriage of Father and Mother, which was dissolved in 2008, produced two children: S.S., born in 2003, and M.S., born in 2006. Sometime following the dissolution, Father moved to Indianapolis to take a new job. The parenting plan and child support award were modified in 2012 (the 2012 modification).

The 2012 modification accepted a parenting plan presented by Mother as being in the best interest of the children. The plan granted both parents joint legal and physical custody of the children. It stated that the children would reside with Mother during the school year and that they would attend the Islamic School of Columbia “until they are no longer able to attend due to age.” Father was granted custody on every other weekend during the school year, most of the summer, and on certain holidays. The 2012 modification set out scheduled times for the children to call Father if the parents were not able to agree on a phone schedule. As a part of the findings required by § 452.375,² the 2012 modification also noted “that [Mother] and [Father] have had an acrimonious relationship” and that the “failure to communicate only worsened when [Father] relocated to the state of Indiana.” Presumably due, at least in part, to this acrimonious relationship, the 2012 modification ordered the parents to communicate only through text or email. The 2012 modification adopted Mother's Form 14 as the correct presumed child support amount and ordered Father to pay child support to Mother in the amount of $1,369.00 per month.

During the 2013–14 school year, M.S., who was in second grade, began having academic difficulties and was failing three subjects. In October, the Islamic School informed Mother that it was “not serving [M.S.'s] academic needs” because, due to the limited students of M.S.'s age, M.S. had been enrolled “in a combined 2/3^rd grade class ... [that] had been taught more on the third grade level.” The school concluded that it “d[id] not have an appropriate class for [M.S.].” The next day, Mother removed both of the children from the Islamic School and enrolled them in Mill Creek Elementary School, a public school in the district where they reside. However, on the children's first day at Mill Creek, Father contacted the school's principal to express his objections to their enrollment. As a result, the children were removed from Mill Creek and Mother began homeschooling them.

Father filed a motion for contempt, and both parents consented to an order holding Mother in contempt, with the contempt to be purged by Mother re-enrolling the children in the Islamic School. When Mother went to enroll the children in December of 2013, the school agreed to accept S.S., but reiterated that it did not have an appropriate placement for M.S. Mother continued to homeschool M.S. until January, when, with Father's consent, M.S. was enrolled at Mill Creek.

In May of 2014, Father filed a motion to modify custody and child support. Father requested sole legal and joint physical custody of the children, with a modified parenting plan that made the children's primary residence his home in Indianapolis during the school year. Father filed a Form 14, showing that Mother should pay Father $709 per month, reflecting that, with the modification, Father would have physical custody of the children the majority of the year.

A three-day trial was held. Father offered evidence that Mother made no effort to discuss with him removing the children from the Islamic School; Mother's primary motivation for doing so was money; there was a similar private school near Father's home in Indianapolis that would provide grade-appropriate education for the children; and either Father or his new wife could care for the children at all times they were not in school, while Mother relies on babysitters while she worked three 12–hour shifts per week as a nurse. Father also provided evidence that M.S. needed special care due to his diagnosis of ADHD with oppositional defiance, that M.S. and S.S. both respond well when they are with Father due to his consistent approach to discipline, and that it would be in the children's best interest to live with Father. Father also testified to a number of occasions when Mother allegedly made custody exchanges difficult by refusing to deliver or pick up the children on time, as well as Mother's failure to allow the children to call Father at the times specified in the 2012 modification.

Mother presented evidence that, despite her efforts to communicate with him, Father had refused to discuss removing the children from the Islamic School; that she removed the children from private school for a number of reasons, including Father's failure to pay tuition as required by the 2012 modification and the lack of a second grade classroom for M.S.; and that Mother has the same job that she had at the time of the 2012 modification and works substantially the same schedule. Mother also offered evidence that she works frequently with M.S. to address his behaviors, that he is attending counseling and generally responding positively, and that he is doing well in school.

The trial court issued its Judgment and Order, denying Father's motions because no “change has occurred in the circumstances of the children or their custodians such that modification [of custody] is necessary,” and “there have [not] been any changes of circumstances so substantial and continuing as to make the child support terms unreasonable.” Father timely appealed.³

Standard of Review

In this court-tried case, we affirm the circuit court's decision “if the judgment is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law.” Speer v. Colon, 155 S.W.3d 60, 61 (Mo. banc 2005)

. We “accept as true evidence and inferences favorable to the trial court's judgment while disregarding contrary evidence” and inferences. Higgins v. Ferrari, 474 S.W.3d 630, 639 (Mo.App.W.D. 2015).

Analysis

Father raises three points on appeal: (1) the trial court erred in determining that no change had occurred sufficient to warrant consideration of a child custody modification; (2) the trial court erred in not making the “best interest” findings required by § 452.375.6; and (3) the trial court's decision not to modify child support was against the weight of the evidence in that Father's Form 14 resulted in a twenty percent change from the existing support amount. For ease of analysis, we will address Points I and II together.

I. The trial court did not err in either determining that there was no change of circumstances sufficient to warrant considering modification or in not making best interest findings.

In his first point, Father argues that the trial court erred in determining that there was no change in circumstances to warrant considering modification of custody. Custody modifications are governed by section 452.410.1, which provides that a court may modify custody if the court 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[ren] or [their] custodian and that the modification is necessary to serve the best interests of the child[ren].” § 452.410.1. The finding of a change in circumstances “is a threshold matter; if the trial court finds that a change in circumstances has occurred, it then must determine whether a modification to the prior decree and parenting plan is warranted, considering the best interests of the children.” Prach v. Westberg, 455 S.W.3d 513, 517 (Mo.App.W.D. 2015)

. Here, in denying Father's motion to modify, the trial court found that no change in circumstances warranting considering modification had occurred. Therefore, the court did not reach the issue of whether a modification would be in the best interests of the children.

The parties disagree over the standard to apply to determine whether there has been a change in circumstances sufficient to warrant considering modification, with Father arguing that the statute requires only a “change” of circumstances, while Mother argues that a “substantial change” is required. Both parents are partially correct. Father seeks two different types of modification: a change from joint to sole legal custody, and a continuation of joint physical custody, subject to a modification of the children's legal residence and resulting changes in the parenting plan. These two different types of modifications require the application of different standards for determining whether a change in circumstances has occurred.

The term “custody” is defined by section 452.375.1(1). “Custody,” for purposes of chapter 452 includes “joint legal custody, sole legal custody, joint physical custody or sole physical custody or any combination thereof.” § 452.375.1(1)....