Smith v. Smith
| Decision Date | 26 March 2002 |
| Docket Number | No. WD 59247.,WD 59247. |
| Citation | 75 S.W.3d 815 |
| Parties | Nataan B. SMITH, Appellant, v. Tracy Lee SMITH, Respondent. |
| Court | Missouri Court of Appeals |
Mary Corinne Corley, Kansas City, for Appellant.
Kimberly Gale, Kansas City, for Respondent.
Before LISA WHITE HARDWICK, Presiding Judge, ROBERT G. ULRICH, Judge, and FOREST W. HANNA, Senior Judge.
The father, Nataan Smith, appeals from the judgment, which changed the primary physical custody of the parties' minor daughter to the mother, Tracy Smith. There is no substantial evidence to support the trial court's judgment changing custody, or awarding guardian ad litem fees; therefore, the judgment of the trial court is reversed and the case is remanded for further proceedings in accordance with this opinion.
Nataan and Tracy Smith were divorced in Wyandotte County, Kansas, on August 19, 1992. The court awarded joint legal and physical custody of the party's one child, Jessica, born June 2, 1990. The primary physical custody was placed with the father. The mother was given specific weekend, weekday, and holiday visitation. Subsequently, but independently of each other, both parents moved to Missouri. On June 7, 1998, the father sent the mother a certified letter informing her that his employer, Southwestern Bell, had transferred him to Dallas, Texas, and that their daughter, Jessica, would be going with him. As a result, on June 29, 1998, the mother filed a motion with the Wyandotte County court and received an ex parte order prohibiting the father from taking Jessica to Texas until a hearing could be held. On July 3, 1998, the father filed his motion with the Wyandotte County court. The court issued its order permitting the father to take the child to Texas on a temporary basis. The father and Jessica moved to Dallas, Texas, where he was now employed. On July 20, 1998, the Wyandotte County court declined jurisdiction, stating no reason, but presumably because both parties had moved to Missouri after the Kansas divorce decree was entered.
On November 18, 1998, the mother filed a motion to modify custody in Jackson County, Missouri. She alleged that the father had denied her visitation and access to medical records, and that he had moved away without leaving a forwarding address. The father filed a cross-motion, which sought, among other matters, the court's permission to relocate the minor child to Texas.
On January 14, 2000, by agreement of counsel, the Jackson County Circuit Court entered orders permitting Jessica to stay with the father during the pendency of the action, and specifying certain dates of visitation for the mother. The mother was given visitation during the spring break at the mother's residence in Kansas City, and on the last weekend of the months of February, March, and April to take place in Texas. Each party was ordered to pay the guardian ad litem $250.
At the time of trial, Jessica was ten years old, had lived with the father for nine years, and had lived with the father in Texas for over a year. The trial was held on August 16, 2000. The trial court changed custody by placing sole physical and legal custody with the mother, and granting the father specific visitation privileges. He was ordered to pay support, which is not in issue here.
The father raises five points on this appeal. Two of the points are directed at the court's failure to rule on the relocation issue. In the remaining points, the father argues that there was insufficient evidence to support the change of custody, the order for the payment of the guardian ad litem's fees and expenses, and the court's finding of contempt.
Our review is limited to the determination of whether the circuit court's judgment is supported by substantial evidence, whether it is against the weight of the evidence, or whether the circuit court erroneously declared or applied the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). In assessing the sufficiency of the evidence in a case modifying custody, the court of appeals will examine the evidence and its inferences in the light most favorable to the trial court's order, and defer to the trial court's assessment of the witnesses' credibility and accept the trial court's resolution of conflicting evidence, and presume that the trial court reviewed all of the evidence and based its decision on the child's best interest. Section 452.410.1; In re McIntire, 33 S.W.3d 565, 568 (Mo.App.2000). The court is presumed to act in the best interests of the child. In re Interest of S.E.P., 35 S.W.3d 862, 867 (Mo.App.2001).
The father argues that the trial court applied the wrong standard because it considered the changed circumstances as "continuing" and made reference to the changed circumstances of the "parties." He maintains that the court should have considered whether there was a change in circumstances of the minor child or the custodial parent, as required by § 452.410.1 RSMo, and that the standard should have been "substantial or significant" not "continuing." The father also argues that the change of custody is not supported by substantial evidence.
A trial court should base its decision regarding a change of custody of a minor child on whether there has been a change in circumstances of the child or the custodial parent, § 452.410, RSMo, and whether the changes are "substantial" or "significant." In re McIntire, 33 S.W.3d at 569. Furthermore, the trial court must determine that the change of custody is in the best interest of the child. Section 452.410, RSMo.
The trial court need not find that the change in circumstances is "continuing." In re McIntire, 33 S.W.3d at 569. However, it does not follow that the trial court incorrectly applied the wrong standard simply because it found that the change in circumstances were continuing. In certain cases, a "continuing" change in circumstances may be an appropriate finding. In this case the court concluded the change was substantial. Point denied.
The father makes much of the fact that the trial court referred to "the parties" instead of the custodial parent. The father was one of the parties. Although the trial court's entry does not make the distinction, a review of the record satisfies us that the trial court applied the changed circumstances standards to the custodial parent and child. Other than some incidental matters concerning the mother, the inquires of the parties and the court related to the father and the child.
At the conclusion of the evidence, the court requested proposed findings of fact and conclusions of law from both parties to be submitted by August 28. After requesting the findings and conclusions, the court immediately ordered a change of custody and directed, without delay, the physical transfer of Jessica to the mother. The court's two reasons for its order changing custody was the father's failure to cooperate with the guardian ad litem, and that he had failed to comply with the court's order regarding the payment of fees and costs.1 We will not presume that the court was satisfied that the two reasons orally stated were sufficient to change custody. Following the court's oral order changing custody, the court was provided, as it requested, with the parties' proposed findings of fact and conclusions of law.
The court expanded on its findings and the basis for its ruling in its written entry entered August 28. The trial court's written entry recited the following in support of its determination that there was a change in circumstances.
1) The petitioner father has removed the minor child from the State of Missouri without consent of respondent mother or permission of the Court,
2) the petitioner father has willfully and wantonly denied visitation to respondent continuously and with total disregard of court orders,
3) petitioner father has violated the court's order by refusing to involve respondent in decisions regarding the health, education, and welfare of the minor child,
4) the petitioner has refused to provide the respondent or the Guardian Ad Litem with access to the child's medical records,
5) the petitioner has refused to cooperate with the child's court appointed Guardian Ad Litem,
6) the petitioner has refused to attend court ordered mediation.
We will address each of these findings in the order expressed by the trial court's written entry. A careful review of the record, viewed in a light most favorable to the court's decision, reveals that there is substantial evidence to support only points five and six.
The trial court is presumed to have acted in the best interests of the child, and we defer to the trial court's assessment of what serves the child's best interests unless we are firmly convinced that the child's welfare requires some other disposition. In re Interest of S.E.P., 35 S.W.3d at 867. In a child custody proceeding, we give greater deference to the trial court's determination than in any other type of case. In re McIntire, 33 S.W.3d at 568.
In the first point found by the trial court, the court determines that a basis for change of custody was the father's failure to obtain permission from the court before he relocated to Texas.2 After receiving the father's certified letter of notification of the pending relocation to Texas, the mother filed an ex parte motion in the Wyandotte County, Kansas, District Court seeking to prohibit the father from relocating to the state of Texas. On July 2, 1998, the father's attorney filed an "oral" application with the Wyandotte County District Court to allow him to take Jessica with him to Texas. The court granted the motion and entered a temporary order permitting the relocation. The father and child then moved to...
To continue reading
Request your trial