Searcy v. Seedorff

• Decision Date: 21 December 1999
• Citation: 8 S.W.3d 113
• Parties: (Mo.banc 1999) . Hannah Searcy, Respondent, v. John and Linda Seedorff, Appellants, Ricki Lee Searcy and James Kennedy, Respondents. Case Number: SC81760 Supreme Court of Missouri Handdown Date:
• Court: Missouri Supreme Court

8 S.W.3d 113 (Mo.banc 1999)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Hannah Searcy, Respondent, v. John and Linda Seedorff, Appellants, Ricki Lee Searcy and James Kennedy, Respondents.

Case Number: SC81760

Supreme Court of Missouri

Handdown Date: 12/21/99

Appeal From: Circuit Court of Ray County, Hon. Werner A. Moentmann

Counsel for Appellant: David K. Holdsworth

Counsel for Respondent: George A. Pickett and Christy L. Fisher, Ricki Lee Searcy, M. Corinne Corley and Stanley M. Thompson

Opinion Summary:

Custody of four minors was awarded to the grandparents of two of them. Four months later, the natural mother sought to modify custody, and the court transferred custody to her. The grandparents appeal.

REVERSED AND REMANDED.

Court en banc holds:

To change custody, section 452.410.1 requires a change in circumstances of the children or custodians. Cases prior to section 452.410's enactment permitted custody modification based on a change in the natural parent's circumstances. But the statute does not provide for this exception. To change custody at any time because of the parent's conduct or circumstances poses a constant threat to the child's stable environment. The parental presumption applies only where the custodian is first determined, not in modifications. To the extent that cases conflict with this rule, they are overruled

The mother failed to show that the circumstances of the children or the custodians had substantially changed. Specifically, the failure of the grandparents to obtain foster care status does not constitute such a change, and the evidence failed to show a pattern of willful denial of visitation to provide such a change. Therefore, the mother did not satisfy the threshold requirement to invoke section 452.410.1.

Opinion Author: PER CURIAM

Opinion Vote: REVERSED AND REMANDED. All concur.

Opinion:

PER CURIAM¹

John and Linda Seedorff appeal the judgment of the trial court transferring custody of four minor children to their natural mother, Hannah Searcy. The Seedorffs contend the trial court erred in transferring custody because: (1) Ms. Searcy failed to meet the standard of proof required for modification of child custody under section 452.410², and (2) the modification of custody was not supported by the evidence and was against the weight of the evidence. The judgment of the trial court is reversed, and the cause is remanded.

All four children were born during the marriage of Hannah Searcy and Ricki Lee Searcy. This marriage was dissolved, and custody of all the children was given to the Seedorffs, the grandparents of two of the children. Ms. Searcy, Mr. Searcy, and Mr. Kennedy, the natural father of two of the children, were granted rights of "reasonable, limited, and restricted visitation."

Four months after the trial court entered its judgment, Ms. Searcy filed a motion to modify the custody of the four children, alleging that a substantial and continuing change in circumstances had occurred. She asserted that she was gainfully employed and capable of providing a stable and secure home for the four children, that the Seedorffs had persistently withheld visitation from her without justification, and that the best interests of the children required that they be returned to her custody.

The trial court conducted a hearing on Ms. Searcy's motion to modify. At trial, evidence was adduced regarding Ms. Searcy's alleged change in circumstances. The trial court subsequently entered the judgment challenged in this case. The court found that a substantial change in circumstances exists that warrants the transfer of custody from the Seedorffs to Ms. Searcy, found that Ms. Searcy is a fit and proper person to have custody and control of the children, and ordered that custody of the four minor children be placed with Ms. Searcy.

The decision of the trial court in this case will be affirmed on appeal unless no substantial evidence supports it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The power to set aside a trial court's judgment on the ground that it is against the weight of the evidence should be exercised with caution and with a firm belief that the decree or judgment is wrong. Spradlin v. City of Fulton, 982 S.W.2d 255, 263 (Mo. banc 1998). In reviewing a contention that the evidence is insufficient, the evidence is viewed in the light most favorable to the verdict, and deference is accorded to the trial court's assessment of credibility. Dent v. Dent, 965 S.W.2d 230, 235 (Mo. App. 1998).

The Seedorffs first contend the trial court erred in modifying child custody and transferring custody because Ms. Searcy failed to establish the required standard of proof for a modification of custody. Specifically, the Seedorffs argue that to modify child custody under section 452.410.1, Ms. Searcy was required to show that a substantial change in the circumstances of either the children or the custodian had occurred since the prior custody decree and that the modification of the prior decree was necessary to serve the best interests of the children. Section 452.410.1. The Seedorffs contend that because Ms. Searcy presented evidence focusing solely on what she perceived to be significant changes in her own circumstances, she failed to show any change in the circumstances of either the children or themselves and, therefore, failed to meet the burden of proof required to modify child custody under section 452.410.1.

The standard governing the modification of a decree of custody is set forth in section 452.410.1 and provides that:

[t]he 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.

The Seedorffs are correct that the change in circumstances required by section 452.410.1 must relate to the children or their custodian, not the noncustodial parent. An anomalous exception to this rule has been recognized in two districts of the court of appeals where custody of a child has been awarded to a third party and a noncustodial parent seeks modification of the custodial order. See Anderson v. Hall, 823 S.W.2d 109, 110-11 (Mo. App. 1991); Shortt v. Lasswell, 765 S.W.2d 387, 389 (Mo. App. 1989); Esry v. Esry, 628 S.W.2d 700 (Mo. App. 1982); Callaway v. Callaway, 590 S.W.2d 700 (Mo. App. 1979); Meinking v. Meinking, 529 S.W.2d 440 (Mo. App. 975). Under the exception, a change in circumstances of a "reformed" noncustodial parent, absent any showing of a change in the circumstances of the child or the custodian, has been accepted as an exception to the provision of section 452.410.1, thereby allowing the court to consider a change in circumstances of the noncustodial parent as the basis for modifying custody. See Anderson, 823 S.W.2d at 110-11; Shortt, 765 S.W.2d at 389.

Prior to the enactment of section 452.410.1, case law provided that modification of child custody only required proof of a "material change of circumstances" and a showing that modification was in the best interests of the child. See J.G.W. v. J.L.S., 414 S.W.2d 352, 354 (Mo. App. 1967). Under the old standard, courts commonly modified custody upon a showing of a change in the circumstances of the natural parent. See, e.g., Meinking, 529 S.W.2d at 443-44; Swan v. Swan, 262 S.W.2d 312 (Mo. App. 1953). The enactment of section 452.410.1 in 1974 added the requirement that the change providing the basis for modification of custody must be in the circumstances of either the child or the custodian. Section 452.410.1. After the enactment of 452.410.1, the courts did not address the effect and implications of the statute on the prior modification standards. Some courts, therefore, continued to apply the modification standards set forth in the prior case law. See Esry v. Esry, 628 S.W.2d 700 (Mo. App. 1982); Callaway v. Callaway, 590 S.W.2d 700 (Mo. App. 1979). The courts in Shortt v. Lasswell and in Anderson v. Hall relied on such cases to establish the third party exception to the custody modification statute. See Anderson, 823 S.W.2d at 110-11; Shortt, 765 S.W.2d at 389.

The plain language of section 452.410.1, however, provides no exception to the requirement that a moving party, any moving party, who seeks to modify a custody order must first establish that a substantial "change in circumstances of the child or his custodian" has occurred. Section 452.410.1. Information pertaining to...