Robertson v. Nelson

• Decision Date: 25 October 2016
• Docket Number: WD 79278
• Parties: Bradley M. Robertson Individually and as Next Friend for Olivia Y. Robertson, Appellant, v. Lorna Nelson, Respondent.
• Court: Missouri Court of Appeals

502 S.W.3d 627

Bradley M. Robertson Individually and as Next Friend for Olivia Y. Robertson, Appellant,

v.Lorna Nelson, Respondent.

WD 79278

Missouri Court of Appeals, Western District.

OPINION FILED: OCTOBER 25, 2016

Lance Matthew McClamroch, Jefferson City, MO, Counsel for Appellant

Jeffrey R. Kays, Ashland, MO, Counsel for Respondent

Before Division One: Anthony Rex Gabbert, P.J., Thomas H. Newton, and Alok Ahuja, JJ.

Anthony Rex Gabbert, Judge

Bradley M. Robertson (Father) appeals the circuit court's modification of paternity judgment on Father's "Motion to Modify as to Child Support" and Lorna Nelson's (Mother) "Counter-Motion to Modify." Father asserts ten points on appeal. First, he contends that the circuit court erred in changing physical custody with regard to Father's and Mother's child because there was insufficient evidence that a change in the circumstances of the child or her custodian occurred. Second, Father contends that the circuit court erred in changing physical custody regarding the child because it was against the weight of the evidence that a change in physical custody was in the child's best interest. Third, Father contends that the circuit court erred in changing legal custody because there was insufficient evidence a change in the circumstances of the child or her custodian occurred. Fourth, Father contends that the court erred in admitting evidence of facts that predate the prior judgment. Fifth, Father contends that the court erred in restricting his parenting time because there was insufficient evidence that unrestricted contact would endanger the child's physical health or impair her emotional development and it was against the weight of the evidence that restricted parenting time was in the child's best interest. Sixth, Father claims that the circuit court erred in ordering a graduated visitation regime because it erroneously applied the law in that child visitation may only be modified upon a showing that the modification is in the child's best interest and the trial court's parenting plan automatically modifies future visitation without first finding the modification is in the child's best interest based on the circumstances then existing. Seventh, Father contends that the court erred in failing to award him any overnight holiday, vacation, or weekday parenting time because it was against the weight of the evidence to award him such limited parenting time in that he has a positive relationship with the child and is entitled to frequent, meaningful and continuing contact. Eighth, Father argues that the circuit court erred in imputing income of $2,000 per month to him because there was insufficient evidence Father is able to earn that sum of money in that his qualifications, employment potential, and the available job opportunities in the community showed he could only earn minimum wage. Ninth, Father contends that the circuit court erred in failing to award him a credit on Line 2C of Form 14 because the court erroneously applied the law in that Father was entitled to a credit on Line 2C for a son of Father's that primarily resided with Father since before the prior judgment. Tenth, Father claims that the circuit court erred in failing to modify his child support downward because it was against the weight of the evidence that Father showed a substantial and continuing change in circumstances such that the terms of the prior judgment as to child support were unreasonable. We affirm in part and reverse in part.

Factual and Procedural Background

Olivia Robertson (the child) was born March 28, 2011, to Father and Mother. On December 5, 2013, the circuit court entered a Judgment and Declaration of Paternity and Order of Child Custody and Support. Therein the court declared Father to be the child's biological father, incorporated the parties' Joint Parenting Plan, and established child support based on the parties' agreement within the Joint Parenting Plan. The Joint Parenting Plan awarded the child's legal and physical custody jointly to both parents. Mother was to "have physical custody of the minor child at all times except those times when Mother and Father agree it is in the best interests of the minor child to have visits with Father." However, in the event the parents could not agree, Father was to have parenting time every other weekend from 5:00 p.m. Friday until 10:00 a.m. Monday, and in alternate weeks from 5:00 p.m. Sunday to 10:00 a.m. Monday. Father received four nonconsecutive weeks of parenting time in the summer and the parties shared holidays with the child. Father's child support was calculated to be $548 per month, however the parties considered this unjust and inappropriate and agreed to Father paying $400 per month.

On August 20, 2014, less than nine months after the paternity judgment, Father filed a "Motion to Modify as to Child Support." He alleged therein that his former employer, Jim Robertson's Chevrolet, sold the business to Kirksville Motor Company, and that Kirksville Motor Company subsequently terminated Father's employment. He alleged that he had been unsuccessful in seeking alternative employment and that his sole source of income was from unemployment benefits.

On September 12, 2014, Mother filed an answer to that motion and on November 3, 2014, filed a Counter-Motion to Modify requesting a modification of custody. Mother alleged that, on October 25, 2014, Father was arrested and charged with the class B felony of Distribution/Manufacturing a Controlled Substance with the Intent to Distribute and the class D felony of Unlawful Use of Drug Paraphernalia. A Guardian ad Litem was appointed to represent the best interests of the child.

The court heard evidence on November 2 and November 19, 2015. In issuing its Judgment the court made the following findings which are not disputed on appeal:

A search warrant was executed on [Father's] home on October 24, 2014. The Police searched his home and garage. In the garage they found substantial evidence of the manufacturing of methamphetamine, including numerous HCL generators, used to make meth. At least one of the HCL generators tested positive for meth. In the home they found a ‘secret room’ built off the master bedroom, filled with equipment and materials to grow marijuana. [Father] told the police he used the items to grow tomatoes. In Court he testified that he was "just thinking" about growing marijuana because he thought someday it might be legal. Neither explanation was credible. He denied any knowledge of the meth lab but admitted that he had ‘blacked out’ the windows to the garage because he didn't like people ‘snooping.’ He testified that it must have been [another named individual] making meth in his garage. He said he had no idea a meth lab was in his garage, and gave an elaborate explanation as to why each meth making item was in his garage. His denials were not credible in light of Respondent's testimony. Respondent testified that she had seen Petitioner make and use meth, including times with [the named individual]. Respondent testified she left Petitioner when she asked him to promise to stop using meth. He refused.

Petitioner is currently married to ‘Dakota’ who he admits has ‘drug problems.’ Petitioner's home is currently no place for a young child.

Petitioner is not employed, by choice. He uses gifts from his parents to pay just enough child support so that his driver's license is not suspended. He testified that he could obtain employment, but chooses not to because after his child support is deducted, he would not have ‘enough money for gas.’

Standard of Review

We view the evidence in the light most favorable to the circuit court's judgment and will affirm the judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Blanchette v. Blanchette , 476 S.W.3d 273, 277–278 (Mo. banc 2015). We defer to the circuit court's credibility determinations. Id. at 278 n1.

Points I and IV

In Father's first point on appeal he contends that the circuit court erred in changing physical custody with regard to the child because there was insufficient evidence that a change in the circumstances of the child or her custodian occurred in that the drug charges against Father were filed thirteen months prior to trial, those charges were dismissed, there was no evidence Father used drugs since the date of the prior judgment, there was no other evidence showing a change occurred, and there was no evidence any facts were unknown to the court at the time of the prior judgment. In his fourth point on appeal, Father contends that the circuit court erred in admitting evidence of facts that predate the prior judgment because it erroneously applied the law in finding that evidence relevant in that only facts arising since the date of the prior judgment are considered under Section 452.410, RSMo Cum. Supp. 2015, and there was no evidence any facts were unknown to the court at the time of the prior judgment. As Father's arguments regarding Points I and IV overlap, we discuss them together.

Pursuant to Section 452.410,

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.

"Before a custody decree can be modified, there must be a significant or substantial change in circumstances." Scherder v. Sonntag , 450 S.W.3d 856, 859 (Mo. App. 2014).

We first note that, the court's judgment, which includes numerous findings of fact that are uncontested on appeal, reveals on its face a significant change in circumstances arising after the prior decree, or that were unknown to the court at the time of the prior decree, of both Father and the child. The prior...