Prach v. Westberg

• Decision Date: 03 March 2015
• Docket Number: WD77511
• Citation: 455 S.W.3d 513
• Parties: Sam Prach, Respondent, v. Darman (Prach) Westberg, Appellant.
• Court: Missouri Court of Appeals

455 S.W.3d 513

Sam Prach, Respondent

v.Darman (Prach) Westberg, Appellant.

WD77511

Missouri Court of Appeals, Western District.

OPINION FILED: March 3, 2015

Malia T. Parnell, Columbia, MO, Attorney for Respondent.

Melissa A. Faurot, Columbia, MO, Attorney for Appellant.

Before Division I: Cynthia L. Martin, Presiding Judge, and Thomas H. Newton and Mark D. Pfeiffer, Judges

Opinion

Mark D. Pfeiffer, Judge

Ms. Darman Westberg (“Mother”) appeals the judgment of the Circuit Court of Boone County, Missouri (“trial court”), denying Mother's motion to modify the judgment of dissolution of marriage between Mother and Mr. Sam Prach (“Father”). Specifically, Mother sought to modify the terms of the parenting plan by changing their children's residence for mailing and educational purposes from Father's address to Mother's address and by changing the parenting time schedule. On appeal, Mother claims that the trial court erred: (1) in using the wrong legal standard to determine whether a change in circumstances had occurred; (2) in determining that the best interests of the children did not warrant modification; (3) in denying Mother's motion requesting the trial court to conduct an in camera interview of the children; (4) in releasing the Guardian ad Litem (“GAL”) prior to the final hearing on the motion to modify; and (5) in awardingattorney's fees in the amount of $1,500 to Father. We affirm.

Factual and Procedural Background

Mother's and Father's marriage was dissolved in March of 2009. Mother and Father were awarded joint legal custody and joint physical custody of their children, L.O.P. (“Son”) and K.P. (“Daughter”), and they shared roughly equal parenting time with the children. On August 3, 2011, due to Mother's remarriage and relocation to South Carolina, the trial court entered a revised parenting plan, by agreement of the parties. The revised parenting plan continued the parents' joint legal custody and joint physical custody of the children, made Father's residence the residence of the children for mailing and educational purposes, and, with certain exceptions for holidays, awarded Father parenting time during the school year and Mother parenting time during the summer. Father worked nights, so he did not see the children much on the evenings he worked; the children stayed with Father's parents (“Grandfather” and “Grandmother”), who also lived in the home with them, while Father was at work.

When Son began fifth grade in 2012, Son began to have trouble in school. Although Son's behavior was not an issue, his fifth-grade teacher became concerned that Son was not finishing his class work in a timely manner, and his homework sheets were not being consistently signed by a parent.¹ Father did not feel capable to help Son with his homework, and due to his work schedule, he was not always home to make sure that Son completed his homework. Mother learned of Son's troubles and, through frequent email contact with Son's teacher, was able to “sign” some of Son's homework sheets electronically. Mother also, on at least one occasion, helped Son with his homework over the phone. But around this time, Mother filed her motion to modify, believing that she could better help Son with his school work if the children lived with her in South Carolina during the school year. Father was also notified of Son's teacher's concerns, and Father and the teacher eventually worked out an arrangement where Son could stay after school and receive tutoring from the teacher. This seemed to work well, and, in the fifth grade, Son's grades improved. The children spent the summer of 2013 in South Carolina with Mother.

When school began in the fall of 2013, Son's grades again became an issue. Son was not regularly finishing his in-school assignments, and he was not turning in homework assignments. Son received two Ds and two Fs in his first-semester core classes in the sixth grade. Son also failed his computer class and had to drop out of band after getting a late start because Father did not timely obtain Son's musical instrument for use in band class. In the winter of 2013, however, Father arranged for Son to go in before school regularly for extra help; Son's grades began to improve. Son was turning in more homework and becoming more confident. Son started to find his place and develop relationships with others. Son eventually obtained passing grades in all of his classes. But in February of 2014, around the time that Mother filed a motion to reopen the evidence in the case, Son began missing assignments again, and his teachers noticed him becoming nervous and withdrawn; Son's anxiety manifested itself in various physical “tics.” Son's anxiety became noticeably worse during a parent-teacher conference when Mother brought up Father's lack of support at home in Son's presence.

On March 21, 2014, after several evidentiary hearings, the trial court entered a judgment finding that there had “not been a continuing change of circumstances warranting modification.” The trial court also concluded that it was not in the best interests of the minor children to modify parenting time or residence for mailing and educational purposes. It awarded Father $1,500 in attorney's fees. This appeal follows.

Standard of Review

“We will affirm the judgment of the trial court unless it is not supported by substantial evidence; it is against the weight of the evidence; or it misstates or misapplies the law.” Clayton v. Sarratt, 387 S.W.3d 439, 444 (Mo.App.W.D.2013) (internal quotation omitted). “We will not reverse the trial court's judgment on the basis that it is against the weight of the evidence unless we have a firm basis for concluding that the judgment is wrong or that it is against the logic of the circumstances.” Id. (internal quotation omitted). We will not disturb the trial court's determination of custody issues unless we are firmly convinced of its error and that the award is against the best interests of the children. Id. “When there is conflicting evidence, the trial court has the discretion to determine the credibility of witnesses, accepting all, part, or none of the testimony it hears.” McCreary v. McCreary, 954 S.W.2d 433, 439 (Mo.App.W.D.1997) (internal quotation omitted). We recognize that the trial court is in the better position to judge the credibility of the witnesses. Armstrong v. Armstrong, 877 S.W.2d 127, 130 (Mo.App.E.D.1994).

Analysis

Mother's first point on appeal is that the trial court erred in applying the wrong standard as to whether a change in circumstances had occurred to warrant a modification to the parenting plan under section 452.410.1. That section provides:

Except as provided in subsection 2 of this section, the 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.

§ 452.410.1.

If a motion to modify seeks to change the “custody” of the children, for example, from joint legal or physical custody to sole legal or physical custody or from sole custody in one parent to sole custody in the other parent, the “change in circumstances” must be substantial. Russell v. Russell, 210 S.W.3d 191, 194, 197 (Mo. banc 2007). However, when the motion to modify seeks only changes in terms “related to the custodial arrangement,” such as changes in the parenting time schedule or to the minor child's address for mailing and educational purposes, the plain language of the statute controls, and the change in circumstances need not be substantial. Id. ; Clayton, 387 S.W.3d at 445–46. The trial court's judgment discussed both standards, but ultimately concluded, without really stating which standard it was applying, that “under either standard, there has not been a continuing change of circumstances warranting modification.” (Emphasis added.)

Mother's challenge is that the judgment appeared to require a “continuing” change in circumstances, whether or not it concluded that the “continuing” change also needed to be “substantial.” Mother is correct; “continuing” changes are required only for modification of child support, not custody. Hightower v. Myers, 304 S.W.3d 727, 734 (Mo. banc 2010). However, in this case, the standard used by the trial court to determine whether a change in circumstances had occurred is not dispositive.

The finding by a trial court 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. Ronquille v. Ronquille, 263 S.W.3d 770, 773 (Mo.App.W.D.2008) ; McCreary, 954 S.W.2d at 439. In this case, irrespective of the “change in circumstances” standard used by the trial court, the trial court additionally (and perhaps out of an abundance of caution) analyzed the “best interests” of the children and concluded that modification was not warranted. Therefore, Mother fails to demonstrate any prejudice from the trial court's having evaluated the alleged “change in circumstances” under an incorrect legal standard.

Point I is denied.

We next review the trial court's “best interests” analysis, which is the subject of Mother's second point on appeal. Section 452.375.2 directs the court to determine the best interests of the child or children considering “all relevant factors including”:

• “The wishes of the child's parents as to custody and the proposed parenting plan submitted by both parties.” The court found that this factor favored neither Mother nor Father, because both Mother and Father wished to have custody of (and school-year parenting time with) their children.

• “The needs of the child for

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