Soehlke v. Soehlke

• Court: Missouri Supreme Court
• Writing for the Court: PAUL C. WILSON
• Citation: Soehlke v. Soehlke, 398 S.W.3d 10 (Mo. 2013)
• Decision Date: 14 May 2013
• Docket Number: No. SC 92872.,SC 92872.
• Parties: In re the Marriage of Charles Matthew SOEHLKE and Angela Maria Soehlke, Charles Matthew Soehlke, Respondent, v. Angela Maria SOEHLKE, a/k/a Angela Maria Crumer–Soehlke, Appellant.

398 S.W.3d 10

In re the Marriage of Charles Matthew SOEHLKE and Angela Maria Soehlke, Charles Matthew Soehlke, Respondent,

v.Angela Maria SOEHLKE, a/k/a Angela Maria Crumer–Soehlke, Appellant.

No. SC 92872.

Supreme Court of Missouri, En Banc.

May 14, 2013.

Greg L. Roberts, Thomas H. Rolwing Jr., Roberts Law Firm PC, Chesterfield, Daniel R. Schramm, Daniel R. Schramm LLC, Chesterfields, for the Mother.

Michael L. Jackson, Law Offices of Michael L. Jackson LC, Jackson, for the Father.

PAUL C. WILSON, Judge.

Charles Soehlke (“Father”) sought a modification of the custody and support provisions of the judgment dissolving his marriage to Angela Crumer–Soehlke (“Mother”). Mother appeals from the trial court's judgment of modification granting some, but not all, of the relief sought by Father. The judgment is affirmed.

I. Background

The parties' marriage was dissolved on February 15, 2005, and Father and Mother were awarded joint legal and physical custody of their only child, who was nearly three years old. The 2005 judgment designated Mother's residence as the child's primary residence for mailing and educational purposes. Parenting time was to be shared equally, with the child moving between parents each week.

At the time of their dissolution, both Father and Mother lived in southeast Missouri. However, Mother soon moved (with proper notice) to Manhattan, Kansas. Accordingly,on July 14, 2008, the trial court entered a judgment modifying the custody and support provisions of the original 2005 judgment. This 2008 judgment incorporated a new parenting plan that had been agreed to by the parties and that continued joint legal and physical custody. However, the 2008 judgment eliminated the week-to-week custody exchanges. Instead, the 2008 judgment designated Mother's residence in Kansas as the child's primary residence for mailing and educational purposes and provided that the child would reside with Father during specified periods throughout the school year, as well as longer periods during summer vacation.

On May 19, 2009, Father filed the motion to modify now at issue. Father's amended motion, filed in July 2010, alleged that a modification was justified due to Mother's numerous refusals to comply with the 2008 judgment, including: (1) her refusal to communicate with Father regarding the child's education, grades, and extracurricular activities; (2) her refusal to communicate with Father regarding the child's health, accidents, injuries, and major medical decisions; (3) her refusal to communicate with Father regarding Mother's decision to expose the child to a new religion without consulting Father; (4) her decision to permit a man who is married to a third person to spend nights at Mother's residence while the child was staying with her; (5) her decision to tell the child that she would be moving and that the child would need to change schools; and (6) her purposeful efforts to enroll the child in extracurricular activities and plan the child's other outings to conflict with the periods when the child otherwise would be staying with Father in order to limit the child's time with Father and/or undermine Father's relationship with the child. Finally, Father alleged that his work schedule and the substantial distance to the court-ordered location for custody exchanges (i.e., roughly halfway between the parties' Kansas and Missouri residences) made it impractical for the child to stay with Father for the shorter periods (three days or less) during the school year that the 2008 judgment provided.

Based upon the forgoing changes in circumstances, Father alleged that the child's best interest required modifications to the custody and support provisions in the 2008 judgment. Specifically, Father requested the court grant Father sole legal and physical custody of the child. And, in the converse of the 2008 judgment, Father requested that the child's primary residence be changed from Mother's Kansas residence to Father's Missouri residence and that the court specify that the child will reside with Mother only for short periods during the school year and longer periods during the summer. Finally, Father asked the trial court to modify the transportation and exchange provisions so that each parent would be responsible for picking the child up at the other parent's residence.

Mother conceded that the 2008 judgment was no longer workable and that some modification was in the child's best interest. At trial, Mother proposed a new parenting plan that not only would continue Mother's residence in Kansas as the child's primary residence but also would award Mother sole legal custody of the child and reduce Father's parenting time substantially.

On August 18, 2011, Father's amended motion to modify was ready to be tried. Both parties appeared in person and by counsel and announced they were ready to proceed. Father and Mother each offered evidence, both parties rested, and Father's motion was submitted. On September 14, 2011, the court entered its judgment of modification continuing the parties' joint legal and physical custody but imposing new custody terms that essentially are the mirror-image of those in the 2008 judgment. Specifically, where the 2008 judgment had designated Mother's residence as the child's primary residence for mailing and educational purposes and specified certain times during the school year and the parts of each summer that the child would stay with Father, the September 14 judgment designated Father's residence as the child's primary residence and specified certain times during the school year and the parts of each summer that the child would stay with Mother. Finally, the court denied Father's request to modify the transportation and exchange provisions, and these continued the same in the September 14 judgment as in the 2008 judgment.

Even though the child's school year was beginning, Mother refused to comply with the September 14 judgment on the grounds that its custody provisions were “vague” because they failed to specify when—if ever—the child was to reside with Father. Seeking to compel Mother's compliance as quickly as possible, Father filed a motion on October 5, 2011, requesting that the court add language to the September 14 judgment clarifying that the child was to reside with Father at all times not specifically set apart to Mother. Father's motion was titled “Motion for Amendment of Parenting Plan Nunc Pro Tunc” and cited Rule 74.06(a) as the court's authority to make this clarification.

On October 7, the trial court entered its “Judgment and Order for Amendment of Parenting Plan Nunc Pro Tunc,” which stated that the child “shall be primarily in [Father's] physical care, custody and control at all times not specifically set aside under [the September 14] Parenting Plan.” Attached to and incorporated in this October 7 judgment was an amended parenting plan. Other than the addition of the word “Amended” to the title, this parenting plan was identical to the one incorporated in the September 14 judgment, with the addition of the following clarification:

The minor child shall be primarily in the Mother's physical care, custody, and control during those periods set aside to Mother under the custody schedule which is attached hereto as “Exhibit 1—A” and incorporated herein by this reference. The minor child shall be primarily in the Father's physical care, custody, and control at Father's residence in the State of Missouri (or wherever Father may be), at all times not specifically set aside to Mother under the custody schedule which is attached hereto as “Exhibit 1—A.”

This “Exhibit 1—A” is the list of school holidays and weekends (and longer periods during the child's summer vacations) that were set aside to Mother. “Exhibit 1—A” is identical to “Exhibit 1” that was attached to and incorporated in the September 14 judgment.

On October 12, Mother's new counsel ¹ filed suggestions in opposition to Father's motion, as well as Mother's “Motion for a New Trial or in the Alternative to Amend the Judgment.” Mother also filed a “notice” purporting to set her new trial motion—and her objections to Father's motion—for hearing some four weeks later, i.e., November 10, 2011.

In Mother's objections to Father's motion seeking clarification of the September 14 judgment, she argued that Father's motionpresented “an improper legal theory to give the Court jurisdiction to amend the Court's findings as requested by [Father].” In addition to this procedural objection, Mother responded to the substance of Father's motion in her new trial motion. There, she argued that the child custody provisions in the September 14 judgment were “vague” and “indefinite.”

Mother noted, by way of example, that the judgment specified the periods during which the child would stay with her but never specified which periods—if any—the child was to stay with Father. Mother also argued that, even though the September 14 judgment changed the child's primary residence for mailing and educational purposes from Mother's residence to Father's, it did not specifically order the child to live with Father or attend school there. Finally, Mother argued that, if the trial court had intended for the child to live at the Father's residence and attend school there, the September 14 judgment failed to specify a “date certain” by which these changes were to occur. In other words, even though she never had claimed any difficulty understanding the substantially similar (albeit converse) provisions in the 2008 judgment, Mother asserted that she was unable to determine what the September 14 judgment required and, therefore, could not comply with it.

On October 14, 2011, without waiting the four weeks suggested in Mother's notice, the trial court overruled Mother's motion for a new trial. Mother timely filed her notice of appeal and, after this Court granted Mother's application to transfer the appeal pursuant to Rule 83.04, this Court has...