Speer v. Colon, No. 25685 (MO 8/31/2004)
| Decision Date | 31 August 2004 |
| Docket Number | No. 25685,25685 |
| Parties | BRIAN SPEER, Petitioner-Appellant, v. NEYSA COLON, f/k/a NEYSA ROSARIO, Respondent-Respondent. |
| Court | Missouri Supreme Court |
Appeal from the Circuit Court of Jasper County, Honorable Jon Dermott, Circuit Judge.
Sara Luce Reeder, Attorney for Appellant.
Aaron W. Farber, Attorney for Respondent.
En Banc.
Brian Speer ("Father") appeals from a "Judgment of Modification" entered pursuant to his motion by which he sought to modify child custody and child support. He raises three points on appeal; the first two challenging the sufficiency of the trial court's findings with regard to child custody and child support, respectively; and the third complaining that the trial court failed to rule on his motion for contempt.1
The record reveals that Father and Neysa Colon ("Mother") were married on July 17, 1989 in Oklahoma. J.A.S., born October 30, 1994, was the only child born of the marriage. When the marriage of Mother and Father was dissolved on December 6, 1996, the trial court awarded Father and Mother "joint legal and joint physical custody" of J.A.S., and granted "primary care and custody" to Mother with liberal visitation to Father. Father was required to pay $8 per month in child support.
On March 4, 1999, Mother filed a motion to modify the initial judgment, and Father filed a counter-motion to modify. The trial court's "Order of Modification of Judgment Entry" filed on March 7, 2000 ("the March 2000 modification") awarded joint physical and legal custody of J.A.S. to the parties, with Mother to be the primary physical custodian.2 Further, Father's child support obligation was increased to $155 per month. Both the March 2000 modification and the initial judgment indicated that as part of Father's specified visitation Father "shall have the option to have the minor child during the working hours of Mother."
On October 22, 2001, a petition was filed by the Juvenile Office of Jasper County ("the juvenile office") alleging that J.A.S. had been excessively spanked by Mother. The petition resulted from Father discovering bruises on J.A.S. When Father took J.A.S. to the emergency room of a local hospital, the findings were documented as J.A.S. stated that Mother had spanked him, an allegation which Mother confirmed. The Circuit Court of Jasper County entered an order for protective custody on November 2, 2001, and removed J.A.S. from the custody of both Father and Mother.
On November 14, 2001, Father filed a motion to modify the March 2000 judgment based on the physical abuse of J.A.S. by Mother. In his motion, Father sought primary physical custody of J.A.S. and alleged that Mother's abuse was a substantial and continuing change of circumstances that warranted a change in custody. Father also requested that the court order that his child support obligation cease. On February 1, 2002, Father filed a motion to consolidate his motion to modify with the pending juvenile case filed by the Department of Family Services ("DFS"). According to the motion to consolidate, Father had care and custody of J.A.S. at that time.
On February 21, 2002, following a hearing, the trial court entered a finding of jurisdiction over the juvenile case. On June 3, 2002, however, the juvenile office requested that the trial court dismiss jurisdiction, based on a psychologist's recommendation that J.A.S. be returned to Mother. Additionally, both DFS and J.A.S.'s guardian ad litem suggested that the trial court's jurisdiction over J.A.S. was no longer necessary. Thereafter, the petition was dismissed on June 3, 2002.
On August 23, 2002, Father filed a motion for psychological evaluation. The trial court subsequently granted the request and ordered Mother to produce J.A.S. for a psychological evaluation to be performed by a psychologist of Father's choosing. Father later filed an "Application for Contempt Citation," alleging that Mother had refused to allow Father visitation on the child's birthday and had failed to produce J.A.S. for the psychological evaluation as previously ordered.
The trial court entered a modification judgment on May 7, 2003, which is the subject of this appeal (the "latest modification"). In that judgment, the trial court awarded joint legal custody but granted "primary physical custody" of J.A.S. to Mother with Father to have "liberal and specific visitation," including every other weekend, alternating holidays (New Year's Day, Memorial Day, Labor Day, Christmas Day, J.A.S.'s birthday, Easter, Fourth of July, Thanksgiving Day, Christmas Eve), five weeks during the summer, and weekly phone contact. This judgment differed from the March 2000 modification in that the earlier award of joint physical custody was deleted, Father's summer visitation was increased from three weeks to five weeks, and Father's previous option of having the child during Mother's working hours was omitted. Additionally, Father's child support obligation was increased from $155 to $262.44 per month. The trial court also ultimately denied Father's motion to hold Mother in contempt.3 This appeal followed.
On review we affirm the judgment in a custody modification case if it is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law. In re D.M.S., 96 S.W.3d 167, 171 (Mo.App. S.D. 2003). When there is conflicting evidence, it is within the trial court's discretion to determine the credibility of the witnesses, and accept or reject all, part, or none of the testimony it hears. In re Marriage of Eikermann, 48 S.W.3d 605, 608 (Mo.App. S.D. 2001). In assessing the sufficiency of the evidence, we examine the evidence and its inferences in the light most favorable to the judgment. In re McIntire, 33 S.W.3d 565, 568 (Mo.App. W.D. 2000). Greater deference is given to a trial court's determination in matters involving child custody than in any other type of case. In re D.M.S. at 171. We exercise extreme caution in considering whether a judgment should be set aside on the ground that it is against the weight of the evidence, and will do so only upon a firm belief that the judgment was wrong. Id.
In his first point, Father complains that the trial court erred in modifying custody by changing it from "joint legal and joint physical custody" to joint legal and "primary physical custody" in Mother, and by changing his periods of custody. Specifically, he complains that the trial court did not consider or make specific findings required by Sections 452.375.2 and 452.410;4 it failed to determine the best interests of the child as required by Section 452.375.6; it did not consider or make findings with reference to the public policy declared in Section 452.375.4 as required by Section 452.375.6; it reduced his custody without making a specific finding that visitation would endanger the child as required by Section 452.400.2; and it did not consider the physical abuse of the child by Mother and make specific findings as to how the visitation arrangements serve the welfare of the child as required by Section 452.400.1.
It is first necessary to determine whether the judgment at issue here resulted in a modification of a child custody decree or was a change in visitation. If it was a modification of a custody decree, Section 452.410.1 requires that the trial court have jurisdiction under the provisions of Section 452.450,5 and that it find, 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. Section 452.410.1; In re D.M.S. at 173. If the judgment resulted in a change in visitation, the applicable standard is the best interests of the child, with no precursor finding of a substantial change in circumstances necessary. Section 452.400.2; In re D.M.S. at 173. Thus, the trial court is required to find that there has been a substantial change in circumstances warranting the modification, and that the modification is necessary to serve the best interests of the child, only if there is a modification of custody. Beckwith v. Giles, 32 S.W.3d 659, 664 (Mo.App. W.D. 2000).
Here, Father and Mother were initially awarded joint legal and physical custody, with Mother granted the primary care and custody with liberal visitation in Father. The March 2000 modification specified that the parties would have joint physical and legal custody, Mother was designated the primary physical custodian, and there were specified times when J.A.S. would "reside" with Father. The judgment entered in the latest modification provided that the parties would have joint legal custody, Mother would have primary physical custody and Father was awarded "liberal and specific visitation" specified above. Father seems to argue that here there was a modification of custody because the latest modification eliminated the earlier award of joint physical custody and awarded primary physical custody to Mother with liberal visitation in himself.
Under some authority, the elimination of the award of joint physical custody would, itself, establish that there has been a modification of custody. See Timmerman v. Timmerman, No. 62002 (Mo.App. W.D., filed July 27, 2004).6 The label chosen by the trial court, i.e. custody or visitation, however, is not solely determinative. Rather, it is the substance of the finding that controls whether we are dealing with custody or visitation. In fact, by way of Section 452.375.1(3), "joint physical custody" is defined as an award to each of the parents of significant, but not necessarily equal, periods of time during which the child resides with or...
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