Nichols v. Ralston

• Decision Date: 23 September 1996
• Docket Number: No. 20306,20306
• Citation: Nichols v. Ralston, 929 S.W.2d 302 (Mo. App. 1996)
• Parties: Guy Wayne NICHOLS, Plaintiff/Appellant, v. Melissa Renee RALSTON, Defendant, and Kari Lynn Schulze, Defendant/Respondent.
• Court: Missouri Court of Appeals

Page 302

929 S.W.2d 302

Guy Wayne NICHOLS, Plaintiff/Appellant, v. Melissa Renee RALSTON, Defendant and Kari Lynn Schulze, Defendant/Respondent.

No. 20306.

Missouri Court of Appeals,

Southern District,

Division Two.

Sept. 23, 1996.

Stephen P. Carlton, Carlton & Mayo, P.C., Carthage, for plaintiff/appellant.

Sarah Luce Reeder, Joplin, for defendant/respondent.

CROW, Presiding Judge.

This is a dispute between the parents of Melissa Renee Ralston about custody and visitation. For brevity and clarity, we refer to Melissa's mother, Kari Lynn Schulze (nee Ralston) as Mother, and to Melissa's father, Guy Wayne Nichols, as Father.

This is the second time a dispute between Mother and Father about Melissa has been to this court. The first occasion was Nichols v. Ralston, 825 S.W.2d 347 (Mo.App. S.D.1992). We henceforth refer to it as Nichols-I. It should be read as a preface to the present opinion.

In Nichols-I, an appeal by Mother, this court affirmed a judgment entered May 6, 1991, granting Mother "[c]are and custody" of Melissa and awarding Father:

"... reasonable visitation and specifically every other weekend from 5:00 p.m. Friday to 5:00 p.m. Sunday beginning April 19, 1991; Christmas Day, Memorial Day weekend, and Labor Day weekend in odd numbered years; Christmas Eve, Easter, July 4th and Thanksgiving in even numbered years; July 1 through July 15 and Father's Day of each year."

We henceforth refer to the judgment affirmed by this court in Nichols-I as "the 1991 judgment."

After Nichols-I, an armistice existed until Mother filed a motion to modify on December 29, 1994. An ensuing trial on May 10, 1995, resulted in a judgment providing that Father's contact with Melissa shall be limited to "supervised visitation" as follows:

"Visitation ... shall take place within the [presence] of [Mother] or if she so elects with Christie Burger. Supervised visitation shall take place on the following days:

Every first, third and fifth, if applicable, Saturday of each month, unless the parties agree on the Sunday following such Saturday, from 9:30 a.m. to 7:30 p.m. and on Christmas Day, Memorial Day weekend, on either Monday, unless the parties can agree on the Saturday or Sunday of Memorial Day weekend and similarly on Labor Day weekend, from 1:00 p.m. to 7:30 p.m. in odd numbered years and in even numbered years Christmas Eve, Easter Sunday, unless the parties can agree on Saturday, July 4th and Thanksgiving from 1:00 p.m. to 7:30 p.m.

The Court further orders that no visitation shall occur or continue to occur if the [Father] consume [sic] alcoholic beverages prior to his exercising visitation, that day or if he consume [sic] any alcoholic [beverages] during the time of visitation.

The Court further order [sic] that so long as [Father's] visitation is to be supervised, he is not to operate a motor vehicle while ... Melissa ... is in such motor vehicle."

We henceforth refer to the above judgment as "the 1995 judgment."

Father brings the present appeal from the 1995 judgment. His sole point relied on maintains the trial court erred by requiring supervised visitation in that the evidence "did not establish a substantial change of circumstance from the [1991] judgement." Father's brief tells us the statute "which appears to be relevant" is § 452.400.2, RSMo 1994. It reads:

"The court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child, but the court shall not restrict a parent's visitation rights unless it finds that the visitation would endanger the child's physical health or impair his emotional development. When a court restricts a parent's visitation rights or when a court orders supervised visitation because of allegations of abuse or domestic violence, a showing of proof of treatment and rehabilitation shall be made to the court before unsupervised visitation may be ordered. ' Supervised visitation', as used in this section, is visitation which takes place in the presence of a responsible adult appointed by the court for the protection of the child."

Inasmuch as the above statute says nothing about a change of circumstances, Father's contention that the evidence was insufficient to demonstrate "a substantial change of circumstance" appears to be irrelevant. However, another statute does require a change in circumstances as a condition precedent to modification of a "prior custody decree." That statute, § 452.410.1, RSMo 1994, reads:

"... 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...."

Because § 452.400.2 governs modification of visitation rights, and § 452.410.1 governs modification of a custody decree, we must, in identifying the statute that applies in the present appeal, ascertain whether the right granted Father to keep Melissa during the periods specified in the 1991 judgment was an award of custody or an award of visitation rights.

In seeking the answer, we find this in § 452.375.1(2), RSMo 1994:

" 'Joint physical custody' means an order awarding each of the parents significant periods of time during which a child resides with or is under the care and supervision of each of the parents."

We find no statutory definition of "visitation rights." However, § 452.400.1, RSMo 1994, refers to a parent who is "not granted custody of the child" as a "noncustodial" parent.

As we have seen, the 1991 judgment allowed Father to keep Melissa on alternate weekends for 48 consecutive hours. It also allowed him to keep her 15 consecutive days once each summer. In addition, the 1991 judgment allowed Father to have Melissa with him on other occasions, alternating between even numbered and odd numbered years. According to our reckoning, the 1991 judgment placed Melissa under Father's care and supervision almost 20 percent of each year.

In Nix v. Nix, 862 S.W.2d 948, 951 (Mo.App. S.D.1993), this court concluded that a similar arrangement regarding physical custody of a child constituted joint physical custody as defined in § 452.375.1(2), RSMo Cum.Supp.1990. ¹ Consistent with Nix, we hold the 1991 judgment granted Father and Mother joint physical custody of Melissa, with Mother having physical custody approximately 80 percent of the time and Father having physical custody approximately 20 percent of the time.

The 1995 judgment reduces Father's time with Melissa to a ten-hour period twice a month (or in some instances thrice a month ²) plus a six-and-a-half-hour period on a few designated days alternating between even numbered and odd numbered years. Under the 1995 judgment, Melissa is never with Father overnight. Consequently, Father no longer has any significant period of time during which Melissa resides with him or is under his care and supervision.

Applying the definition of joint physical custody in § 452.375.1(2), we hold the 1995 judgment terminates joint physical custody of Melissa and places her in the sole physical custody of Mother, leaving Father only supervised visitation. Because of that drastic modification, we hold the evidence in support of the 1995 judgment had to satisfy § 452.410.1 (quoted supra ).

The change in circumstances required by § 452.410.1 must be in the circumstances of the child or his custodian. Moore v. Moore, 849 S.W.2d 652, 655 (Mo.App. W.D.1993). However, because Father and Mother had joint physical custody of Melissa under the 1991 judgment, each parent was a custodian within the meaning of § 452.410.1. Cf. Clark v. Clark, 805 S.W.2d 290, 294 (Mo.App. E.D.1991).

The 1995 judgment mentions no change in Mother's circumstances. The 1995 judgment states its modification of the 1991 judgment is based on:

"... [Father's] continuing instances of alcohol abuse and consumption. [Father's] disregard for the Laws of Missouri and his violence and mood changes when he consumes alcohol. [Father's] lack of regard for proper supervision of ... Melissa ... while in his care. As well as the lack of proper house hold [sic] sanitary conditions evidence [sic] by frequency with which the child has returned to the primary custodian house of the mother with head lice."

In reviewing Father's claim that the evidence was insufficient to establish a substantial change in circumstances since the 1991 judgment, we accept as true the evidence and inferences from it favorable to the 1995 judgment and disregard all contrary evidence. Clark, 805 S.W.2d at 291, citing T.B.G. v. C.A.G., 772 S.W.2d 653, 654 (Mo. banc 1989). We must affirm the 1995 judgment unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Clark, 805 S.W.2d at 291, citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

Melissa, born April 15, 1988, was in the first grade at time of trial.

In addition to Melissa, Father has another daughter, Amber. She was eleven years old at time of trial. Father testified Amber "was born ... of a marriage." Father has physical custody of Amber from June 1 until September 1 each year, plus "every other weekend." Father coordinated his alternate weekend custody of Amber with his ex-wife so Amber and Melissa were with him on the same weekends.

Viewed favorably to the trial court's finding regarding Father's "alcohol abuse and consumption" and the trial court's finding regarding Father's disregard for Missouri laws, the evidence established that Father was convicted November 18, 1994, of driving while intoxicated and sentenced to sixty days in jail. He was simultaneously convicted of assault of a law enforcement officer in the third degree. According to Father, both crimes occurred...