Reeves-Weible v. Reeves

• Decision Date: 30 June 1999
• Docket Number: REEVES-WEIBL,No. WD,A,WD
• Citation: 995 S.W.2d 50
• Parties: Brenda Kayppellant, v. David Allen REEVES, Respondent. 56735.
• Court: Missouri Court of Appeals

Page 50

995 S.W.2d 50

Brenda Kay REEVES-WEIBLE, Appellant, v. David Allen REEVES, Respondent.

No. WD 56735.

Missouri Court of Appeals Western District.

June 30, 1999.

Thomas E. Hankins, Gladstone, for Appellant.

Nancy Caviar, Leawood, Kansas City, for Respondent.

Before: SPINDEN, P.J., and EDWIN H. SMITH and RIEDERER, JJ.

EDWIN H. SMITH, Judge.

Brenda Reeves-Weible (formerly Reeves) appeals the judgment of the circuit court modifying its decree of dissolution of marriage by ordering, inter alia, a change of primary physical custody of her two minor children from her to their father, David Reeves, the respondent.

The appellant raises eight points on appeal. In her first seven points, she claims that the trial court erred in modifying custody because the record did not support its required finding of § 452.410 ¹ that, since the prior decree, there had been a substantial and continuing change in the children's or her circumstances. In Point VIII, she claims that the trial court erred in modifying custody because there was no substantial evidence to support its required finding of § 452.410 that a modification of custody was necessary to serve the best interests of the children.

We reverse and remand.

Facts

The parties were married on April 4, 1981. Their first child, Lauren, was born on June 29, 1988, and their second child, Seth, was born on March 4, 1992. They separated in April 1996. On August 30, 1996, their marriage was dissolved by decree of the Circuit Court of Clay County, Missouri.

The parties were awarded joint legal custody of the children, with primary physical custody to the appellant. The respondent was awarded specific visitation with the children, which included every other weekend from Friday at 6 p.m. to Sunday at 6 p.m. and one evening per week from 5:30 p.m. to 8 p.m. In addition, he was awarded visitation every summer beginning on the first day after the children's last day of school through June 30 and again from August 1 until the day before the children's school year began. The time and expense of transporting the children to and from visitation with the respondent was to be borne by him. However, the court ordered that, if the appellant moved beyond a ninety-mile radius of Kansas City, Missouri, the issue of who would bear the time and expense of transportation could be revisited.

On October 3, 1997, the respondent filed a motion to modify custody, requesting, inter alia, primary physical custody of the children, or, in the alternative, that he be allowed additional visitation with them in the summer and on long weekends when he was not working. He also requested that his child support obligation be decreased to compensate for his costs incurred in the transportation of the children for visitation. On November 3, 1997, the appellant filed a cross-motion to modify, requesting that the respondent's child support obligation be increased and that his visitation schedule with the children be decreased. She also requested attorney's fees and costs.

Evidence was heard on the respondent's motion to modify on September 22 and 25, 1998. ² On November 16, 1998, the appellant filed a motion to re-open evidence. The trial court heard additional evidence on November 25, 1998. On December 7, 1998, the court entered its "order" modifying its dissolution decree, changing primary physical custody of the children from the appellant to the respondent and ordering her to pay him child support in the amount of $400 per month.

In changing custody, the trial court found a substantial and continuing change of circumstances had occurred in the circumstances of the appellant and the children in that: (1) the appellant had not provided proper adult supervision for the children and had left them alone on numerous occasions, which caused them stress, and she had attempted to mislead the court regarding the children's supervision; (2) since the original order of dissolution, the appellant had moved the children to two different cities, which had interfered with the respondent's visitation, and had refused to provide transportation for the children's visits with him; (3) Lauren had stated to the guardian ad litem and her school teacher that she wished to live with the respondent; (4) Seth had experienced school-related and emotional problems during his kindergarten year and the appellant had failed to pay proper attention to them; and (5) the appellant had changed the children's schools without advising or conferring with the respondent.

On December 29, 1998, the trial court entered a judgment nunc pro tunc, amending the title of its earlier "Order of Modification" to "Judgment of Modification." On December 30, 1998, the appellant filed a motion for an order setting supersedeas bond. On January 4, 1999, the respondent filed his answer to the appellant's motion and filed a cross-motion for temporary custody pending appeal. On this same date, the appellant filed her notice of appeal to this court. On January 8, 1999, the trial court granted the appellant's motion for order setting supersedeas bond and the respondent's motion for temporary custody of the children pending appeal.

This appeal follows.

Standard of Review

Our review of a judgment modifying child custody is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Bomar v. Kurtz, 951 S.W.2d 657, 659 (Mo.App.1997). We will affirm the judgment so long as it is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law. Id. " 'When there is conflicting evidence, the trial court has the discretion to determine the credibility of the witnesses, accepting or rejecting all, part, or none of the testimony it hears.' " Id. (quoting Guier v. Guier, 918 S.W.2d 940, 946 (Mo.App.1996)). " 'Because the trial court is in the best position to weigh all the evidence and render a judgment based on the evidence, the judgment is to be affirmed under any reasonable theory supported by the evidence.' " Id. (quoting Guier, 918 S.W.2d at 946).

In reviewing a judgment modifying child custody "[a] great deal of caution should be exercised in considering whether a judgment should be set aside on the ground that it is against the weight of the evidence, and only then upon a firm belief that the judgment of the trial court was incorrect. In child custody matters the trial court's determination must be given greater deference than in other cases."

Id. (quoting Guier, 918 S.W.2d at 946). In our review, we must view the evidence in the light most favorable to the decision of the trial court. Id.

I.

In her first seven points, the appellant claims that the trial court erred in modifying custody because the record did not support its required finding of § 452.410 that, since the prior decree, there had been a substantial and continuing change in the children's or her circumstances. Specifically, she attacks the trial court's findings in its written judgment on which it relied to determine that there had been a substantial and continuing change of circumstances, requiring a modification of custody. In this respect, the trial court found that:

a. [The appellant] has not provided proper adult supervision for the minor children and has left them alone on numerous occasions. The Court, after an interview in chambers, finds that the actions of [the appellant] have caused the children significant stress. [The appellant] attempted to mislead the Court regarding the supervision of the children, as well as on other issues.

b. Since the original order [the appellant] has moved the children to two different cities, a significant distance from the Respondent, which has interfered with Respondent's weekly visitation. [The Appellant] has continually refused to provide any of the transportation for Respondent's visitation.

c. The minor child, Lauren Reeves, has stated to the Guardian Ad Litem and her teacher that she wishes to live with Respondent.

d. The minor child, Seth Reeves, had school related and emotional problems during his kindergarten year and [the appellant] failed to pay proper attention to these problems.

e. [The appellant] has further changed the children's school without advising or conferring with the Respondent.

As to the change of circumstances found, the appellant claims that: (1) they were not supported by substantial evidence; and (2) even if they were, they did not support a finding of a substantial and continuing change of circumstances requiring a change of custody pursuant to § 452.410. Inasmuch as the appellant's first seven points all deal with the same issue, we will address them as one point.

Section 452.410.1 sets forth what the trial court must find before modifying a prior custody decree. It provides, in pertinent part, that:

the court shall not modify a prior custody decree unless it has jurisdiction under the provisions of § 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. Under this subsection, before a court can change physical custody of a minor child as being in his or her best interests, it must first determine that there has been a substantial and continuing change of circumstances of the child or custodian. Bomar, 951 S.W.2d at 660.

There is a presumption that the party awarded custody in the original decree is a suitable custodial parent. Guier, 918 S.W.2d at 947. As such, the party seeking to change custody has the burden of proving a change in circumstances requiring modification. Id. This required finding of a change in circumstances must relate to the circumstances of the child or the custodial parent, not the noncustodial parent. McCreary v. McCreary, 954 S.W.2d 433, 439 (Mo.App.1997). The...