Schuppan v. Ramos

• Decision Date: 31 March 2023
• Docket Number: SD37503
• Parties: DESIREE (RAMOS) SCHUPPAN, Petitioner-Appellant, v. TONY W. RAMOS, IV, Respondent-Respondent.
• Court: Missouri Court of Appeals

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DESIREE (RAMOS) SCHUPPAN, Petitioner-Appellant, v. TONY W. RAMOS, IV, Respondent-Respondent.

No. SD37503

Court of Appeals of Missouri, Southern District

March 31, 2023

APPEAL FROM THE CIRCUIT COURT OF JASPER COUNTY Honorable Jerry L Holcomb

AFFIRMED IN PART, VACATED IN PART, AND REMANDED WITH DIRECTIONS

Desiree (Ramos) Schuppan ("Mother") appeals the Judgment and Decree of Modification (the "judgment") entered by the trial court. Mother raises two points on appeal claiming in Point I that the judgment misapplies Section 452.377^[1] by including a provision automatically changing parenting time should Mother relocate to the Joplin area in the future; and claiming in Point II that the judgment is not in Child's best interests because the trial court did not follow the recommendation of the guardian ad litem ("GAL"). Finding merit in Point I, we vacate those portions of the judgment related to Mother's potential future relocation to the Joplin area, affirm the judgment in all other respects, and remand for entry of an amended judgment consistent with this opinion.

Factual Background and Procedural History

Mother and Tony W. Ramos, IV ("Father") are the parents of a minor female child ("Child"), who was to start kindergarten in August 2022. Mother and Father divorced in 2020. Based on a stipulation between Mother and Father, the trial court entered a Judgment and Decree of Dissolution of Marriage (the "2020 judgment") awarding Mother and Father joint legal custody and joint physical custody of Child. The 2020 judgment awarded Mother supervised visitation with Child every other weekend, with all other parenting time awarded to Father.

On January 20, 2021, within six months of the 2020 judgment Mother moved to modify the 2020 judgment. Mother requested sole legal custody and sole physical custody with supervised visitation for Father. Mother asserted Father had been arrested and charged with second-degree burglary for breaking into Mother's home, which Mother alleged constituted a continuing and substantial change in circumstances justifying a modification of the 2020 judgment. Father filed a counter-motion to modify requesting sole legal custody and joint physical custody with unsupervised visitation for Mother. Father also filed a motion asking the trial court to appoint a GAL, which was granted.

The trial court held a bench trial on March 16, 2022. Mother and Father each presented evidence in support of their motions to modify custody. We need not summarize that evidence given the narrow legal issues presented by this appeal. The GAL testified and recommended the trial court grant Mother sole legal custody and sole physical custody with supervised visitation for Father by Father's parents every other weekend. The entirety of the GAL's recommendation was: "Your Honor, in light of the evidence that's been presented today, my recommendation is sole physical and sole legal custody with [Mother]; [Father] to have every other weekend supervised by [Father's] parents."

The trial court entered its judgment on March 16, 2022. The judgment awarded Mother and Father joint legal custody and joint physical custody of Child. The judgment awarded Mother unsupervised parenting time on two weekends per month, with all other parenting time awarded to Father. The judgment included the following provisions:

If [Mother] continues to reside out of county as she presently is, [Mother] shall have [parenting] time with [Child] on the first and third weekends of each month from 6:00 p.m. Friday until 6:00 p.m. Sunday, with [Mother] to use all best efforts she does not work on those weekends. Whatever it takes, [Mother] is not to be obligated to work on her weekends. The first weekend of the month begins with the first Saturday of the month and includes the [parenting] time of the Friday before.

In the event [Mother] relocates to the Joplin metropolitan area including Joplin, Webb City, Oronogo and Carl Junction, [Mother] and [Father] shall share [parenting] time, week on, week off, from 6:00 p.m. Friday to 6:00 p.m. the following Friday.

Mother timely appealed the judgment.

Point I

In Point I, Mother asserts "[t]he trial court erred in entering a parenting plan that includes an automatic change to a term relating to child custody upon the happening of some event in the future because such a parenting plan misapplies [] Section 452.377[.]" Specifically, Mother challenges the following provision in the judgment:

In the event [Mother] relocates to the Joplin metropolitan area including Joplin, Webb City, Oronogo and Carl Junction, [Mother] and [Father] shall share [parenting] time, week on, week off, from 6:00 p.m. Friday to 6:00 p.m. the following Friday.

Standard of Review

"When reviewing a judgment of modification, this Court will affirm if the trial court's findings are supported by substantial evidence, are not against the weight of the evidence, and the judgment does not erroneously declare or apply the law." Soehlke v. Soehlke, 398 S.W.3d 10, 16 (Mo. banc 2013) (citing Speer v. Colon, 155 S.W.3d 60, 61 (Mo. banc 2005)). "If the issue is one of law, this Court reviews de novo to see if the circuit court misapplied the law." Clippard v. Clippard, 642 S.W.3d 761, 764 (Mo.App. 2022) (quoting JAS Apartments, Inc. v. Naji, 354 S.W.3d 175, 182 (Mo. banc 2011)).

Analysis

Father asserts we need not determine Point I because Mother lacks standing to challenge the future contingent change in parenting time. Father acknowledges Mother "is no doubt 'aggrieved' by the custody provisions of the [j]udgment[,]" but "the future contingent change in [parenting time] does not aggrieve [Mother] because it results in more [parenting] time than [Mother] would otherwise be entitled to in the absence of the future contingent change."

"Determining whether a party has standing to appeal is a threshold issue that we review de novo." Est. of Freebairn, 481 S.W.3d 555, 558 (Mo.App 2015) (citing In re R.C.H., 419 S.W.3d 158, 160 (Mo.App. 2013); Est. of Whittaker, 261 S.W.3d 615, 617 (Mo.App. 2008)). Section 512.020 affords the right of appeal to "[a]ny party to a suit aggrieved by any judgment of any trial court in any civil cause[.]" "A party is not aggrieved by, and cannot appeal, a judgment that grants all relief sought by the party, but a party can appeal a judgment that grants only part of the relief sought." Blanchette v. Blanchette, 476 S.W.3d 273, 278 (Mo. banc 2015) (citing Smith v. City of St. Louis, 395 S.W.3d 20, 27 (Mo. banc 2013)). "A party is aggrieved when, as an immediate consequence, the judgment operates prejudicially and directly on her rights or interests." Id. (citing Hertz Corp. v. State TaxComm'n, 528 S.W.2d 952, 954 (Mo. banc 1975)).

Here, as in Blanchette, Mother challenges a judgment that did not grant all of the relief she sought. Mother sought sole legal custody and sole physical custody of Child, but the judgment granted Mother only joint legal custody and joint physical custody. "Insofar as the circuit court did not grant all the relief sought, and because [Mother]'s custodial rights are immediately and directly affected by the registration of custody orders that she challenges as void, [Mother] is sufficiently aggrieved to bring this appeal." Id. Mother has standing to bring her claim even if the provision appears to help Mother by increasing her parenting time should Mother relocate to the Joplin area in the future. Contrary to Father's argument, Mother is aggrieved by that provision in that it may or may not result in more parenting time for Mother than that to which she would be entitled. We do not know whether the provision benefits her because the provision involves unknown events at unknown points. And, Mother did not have the option of waiting to see if the future contingent parenting time provision ultimately benefits her; if she did not timely appeal the judgment, she would waive any right to challenge the judgment. See Rules 81.04; 81.05. Thus, Mother has standing to appeal.

Turning to the merits of Point I, Mother asserts the trial court misapplied Section 452.377 in including in the judgment a provision changing parenting time if Mother relocates to the Joplin area. Section 452.377 provides a procedure for relocation of a child or of any party entitled to custody or visitation of a child and provides in relevant part:

2. Notice of a proposed relocation of the residence of the child, or any party entitled to custody or visitation of the child, shall be given in writing by certified mail, return receipt requested, to any party with custody or visitation rights. Absent exigent circumstances as determined by a court with jurisdiction, written notice shall be provided at least sixty days in advance of the proposed relocation. The notice of the proposed relocation shall include the following information:

(1) The intended new residence, including the specific address and mailing address, if known, and if not known, the city;

(2) The home telephone number of the new residence, if known;

(3) The date of the intended move or proposed relocation; (4) A brief statement of the specific reasons for the proposed relocation of a child, if applicable;

(5) A proposal for a revised schedule of custody or visitation with the child, if applicable; and

(6) The other party's right, if that party is a parent, to file a motion, pursuant to this section, seeking an order to prevent the relocation and an accompanying affidavit setting forth the specific good-faith factual basis for opposing the relocation within thirty days of receipt of the notice.

Mother asserts the judgment misapplied Section 452.377 in that the judgment predetermines Mother's parenting time with Child should Mother relocate to the Joplin area in...