Rosito v. Rosito

• Decision Date: 05 August 2008
• Docket Number: No. WD 68689.,WD 68689.
• Citation: 268 S.W.3d 410
• Parties: Jill Suzanne ROSITO, Appellant, v. Mario Estuardo ROSITO, Respondent.
• Court: Missouri Court of Appeals

268 S.W.3d 410

Jill Suzanne ROSITO, Appellant, v. Mario Estuardo ROSITO, Respondent.

No. WD 68689.

Missouri Court of Appeals, Western District.

August 5, 2008.

Regina K. Bass, Esq., Leawood, KS, D. Adam Leatherwood, Esq., Co-Counsel, Kansas City, MO, for appellant.

William H. Reynolds, Esq., Kansas City, MO, for respondent.

Before Div IV: HOWARD, C.J., LOWENSTEIN and WELSH, JJ.

HAROLD L. LOWENSTEIN, Judge.

FACTS

Appellant Jill Rosito (Mother) and Respondent Mario Rosito (Father) were married in Topeka, Kansas, in the summer of 2000. The couple lived briefly in Kansas City, where Mother had spent most of her adult life. In the fall of 2000, they relocated to Guatemala City in Guatemala, Father's birthplace. When they had lived in Guatemala for a little less than one year, the couple's daughter (Child) was born. Mother and Father began experiencing marital difficulties soon after the relocation. In January 2003, the family returned to the United States on a vacation to visit Mother's family in Kansas. While they were in Kansas, Mother filed for divorce.

In October 2003, a Kansas divorce decree awarded joint legal custody to the parents and described the physical custody arrangement as "the primary residency of such child being with [Mother], subject to parenting time of [Father]." Mother was awarded $327 per month in child support, and Father was required to provide health insurance for Child. The judgment incorporated a parenting agreement which provided that Father's parenting time would take place in Topeka and that Father would surrender his passport during such visits until Child reached the age of three.

Later in 2003, Mother and Child moved to Jackson County, Missouri. On August 6, 2006, the Jackson County Circuit Court registered the Kansas divorce decree. Mother then brought this motion to modify with respect to custody and child support. She appeals from the modification judgment entered in June of 2007.

In her motion to modify, Mother sought sole legal custody, increased child support, and restrictions on Father's visitation so that he could not take Child outside the country, could not exercise periods of visitation longer than one week at a time until after Child's fifth birthday, and could not remove Child from school for visitation purposes. Father filed a counter motion to modify, requesting joint legal and joint physical custody, increased parenting time, and attorney fees.

The judgment under review preserved joint legal custody and awarded joint physical custody to the parties, placing Child with Mother except for such times as were designated for Father. Under this judgment, Father was allowed significantly more time with Child, including specific multi-week periods and one-half of Child's summer breaks between school semesters. Also, Father was allowed to take Child to Guatemala during these periods. The court increased Father's child support obligation, requiring him to pay $550 per month.

Mother brings six points on appeal. She asserts that the trial court erred in (1) awarding joint legal and joint physical custody and allowing Father to take Child from the country without making findings pursuant to section 452.375, RSMo; (2) rejecting each party's custody suggestion without making findings pursuant to section 452.375, RSMo; (3) awarding only $550 per month in child support; (4) arbitrarily choosing a retroactive date for enforcement of the new child support award; (5) allowing Father to take Child to Guatemala where the Hague Convention on the Civil Aspects of International Child Abduction may not be fully enforceable; and (6) allowing Father to travel internationally with Child even though the evidence showed that Child did not speak Spanish and that long periods of time spent with Father would be problematic.

STANDARD OF REVIEW

The standard of review in a custody modification case is provided by Murphy v. Carron, 536 S.W.2d 30 (1976). In re McIntire, 33 S.W.3d 565, 568 (Mo.App. 2000). The appellate court "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 erroneously declares or applies the law." Id.

POINTS I & II

In her first and second points, Mother asserts that the trial court erred in failing to make findings as to the factors from section 452.375 on which the court based its custody decision and its decision to reject the proposed custodial arrangements suggested by the parties. Father counters that there was no change in the custodial arrangement but merely a change in "parenting time" and, therefore, findings are not required under section 452.375.

Section 452.375 provides that, in cases where the parties have not agreed to a custodial arrangement or the court determines that such arrangement is not in the best interests of the child, the court must make written findings based on the public policy statement of subsection 452.375.4 and the factors found in subsection 452.375.2. § 452.375.6, RSMo Cum. Supp.2007. The court must also make such findings when it rejects a custodial arrangement proposed by a party. Id. In either case, the findings must detail the "specific relevant factors" that support the court's decision. Id. Subsection 452.375.4 notes that it is the policy of this state to promote "frequent, continuing, and meaningful contact with both parents" and to encourage both parents to participate in decisions affecting their child.¹ Subsection 452.375.2 provides that,

The court shall determine custody in accordance with the best interests of the child. The court shall consider all relevant factors including:

(1) The wishes of the child's parents as to custody and the proposed parenting plan submitted by both parties;

(2) The needs of the child for a frequent, continuing and meaningful relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child

(3) The interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child's best interests;

(4) Which parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent;

(5) The child's adjustment to the child's home, school, and community;

(6) The mental and physical health of all individuals involved, including any history of abuse of any individuals involved. If the court finds that a pattern of domestic violence has occurred, and, if the court also finds that awarding custody to the abusive parent is in the best interest of the child, then the court shall enter written findings of fact and conclusions of law. Custody and visitation rights shall be ordered in a manner that best protects the child and any other child or children for whom the parent has custodial or visitation rights, and the parent or other family or household member who is the victim of domestic violence from any further harm;

(7) The intention of either parent to relocate the principal residence of the child; and

(8) The wishes of a child as to the child's custodian.

Although the trial court does not need to discuss factors that are not relevant to the particular case, it is required to discuss those that are. Davis v. Schmidt, 210 S.W.3d 494, 503 (Mo.App.2007). If the required findings are not made, this court must reverse the custody award and remand to the trial court for its entry of such findings. Id.

In contrast to Father's suggestion, subsection 452.375.6 does not condition its requirement of findings on whether a modification court actually makes changes to the prior custody award. "`So long as any issue or sub-issue of custody is subject to contest between the parties and resolution by the court, written findings that include discussion of the applicable factors from subsection 452.375.2 are required.'" Davis, 210 S.W.3d at 503 (quoting Buchanan v. Buchanan, 167 S.W.3d 698, 701-02 (Mo. banc 2005)). In this case, Mother sought sole legal custody, and joint physical custody and Father sought joint legal and joint physical custody. Clearly, the parties did not agree to a custodial arrangement. Furthermore, the court rejected custodial arrangements submitted by both parents.

Father's argument that the required findings of Section 452.375 have not been triggered since all that was changed after the motion to modify was visitation, and, more particularly, the time, place, and arrangements thereof is arguable, but not well taken. The Kansas decree indicates that physical custody is solely with Mother. In this suit, Father asked for joint physical custody and in that effort he was successful. This court in Buchanan, stated that custody and custodial arrangements of children in dissolution actions is one of the most important and difficult decisions the judge has to decide. 167 S.W.3d at 702. This interpretation carries over to motions to modify, and in a case such as this one, where the parties had not agreed to the custodial arrangements and were not just solely seeking a change of visitation. Speer v. Colon, 155 S.W.3d 60-1 (Mo. banc 2005).

This case is not similar to Wood v. Wood, 94 S.W.3d 397 (Mo.App.2003). In Wood this court found that in a modification judgment where the trial court expressly found that there had not been a substantial change of circumstances warranting a change of custody, the trial court is not required to reach the issue of best interests and, therefore, § 452.375.6 is not triggered. If § 452.375.6 is not triggered, the findings required by § 452.375.2 are not required.

In this case the trial court specifically found the age of the child, the geographical distance, the lack of contact between father and daughter, the fact that Respondent has no family in Kansas and the opportunity for the child to experience two different cultures were substantial and continuing changes in circumstance such that the best...