T.J.E. v. M.R.M.

• Decision Date: 14 January 2020
• Docket Number: No. ED 107697,ED 107697
• Citation: 592 S.W.3d 399
• Parties: T.J.E., Appellant, v. M.R.M., Respondent.
• Court: Missouri Court of Appeals

592 S.W.3d 399

T.J.E., Appellant,

v.M.R.M., Respondent.

No. ED 107697

Missouri Court of Appeals, Eastern District, DIVISION ONE.

Filed: January 14, 2020

FOR APPELLANT, Gail S. Zarosa, 8000 Bonhomme, Ste. 101, Clayton, MO 63105, Daniel R. Schramm, 121 Chesterfield Business Pkwy, Chesterfield, MO 63005.

FOR RESPONDENT, Deborah C.M. Henry, Katherine E. Henry, 130 South Bemiston Ave., Ste. 200, St. Louis, MO 63105, Elaine A. Pudlowski, Guardian Ad Litem, 231 South Bemiston, Ste. 1111, Clayton, MO 63105.

ROBERT M. CLAYTON III, Presiding Judge

T.J.E. ("Father") appeals from the trial court’s November 28, 2018 judgment, as amended by its judgment entered on March 11, 2019, granting in part and denying in part Father’s motion to modify legal custody, physical custody, and child support filed against M.R.M. ("Mother"). Because the trial court failed to make statutorily-required findings, we reverse and remand.

I. BACKGROUND

This case involves a procedural posture consisting of: an initial judgment of paternity, support, and custody entered in November 2012; two modification judgments entered in February 2014 and January 2017; and the modification judgment entered in November 2018 (which was subsequently amended in March 2019) that Father is appealing in the instant case.

A. The Initial Judgment of Paternity, Support, and Custody and the Two Subsequent Modification Judgments

On November 5, 2012, Judge Michael K. Mullen of the Circuit Court of the City of St. Louis entered the initial judgment of paternity, support, and custody, which: declared Father to be the natural father of E.A. ("Child"); awarded Father and Mother joint legal custody; awarded Mother sole physical custody; awarded Father reasonable visitation; and ordered Father to pay Mother $200.00 per month in child support.

Subsequently, on February 7, 2014, Judge Thomas J. Frawley of the Circuit Court of the City of St. Louis ("Judge Frawley") entered the first modification judgment in this case, which: found Father and Mother shall retain joint legal custody; modified physical custody, awarding Father and Mother joint physical custody; and modified child support, ordering Father to pay Mother $400.00 per month in child support. Then, on January 18, 2017, Judge Frawley entered the second modification judgment in this case, which: modified legal custody, awarding Mother sole legal custody; modified the terms of the joint physical custody arrangement of the parties; and modified child support, ordering Father to pay Mother $396.00 per month in child support.

B. The Procedural Posture Relevant to the Modification Judgment Father is Appealing in this Case

On January 29, 2018, Father filed a motion to modify legal custody, physical custody, and child support in the Circuit Court of the City of St. Louis. Father’s motion alleged that since the January 2017 modification judgment was entered, there had been a substantial and continuing change in the circumstances of the parties and Child as to make certain provisions of the custody order unreasonable and as to warrant a modification of custody. Father ultimately requested the parties be awarded joint legal custody and joint physical custody, with a physical custody arrangement that would award Father equal parenting time including physical custody of Child for alternating weeks during the summer. Father also requested a reduction in his child support obligation.

Father then filed a request for findings of fact and conclusions of law, and a bench trial was conducted on Father’s motion to modify on November 1, 2018 before Judge Theresa Counts Burke ("the trial court").

The trial court issued a modification judgment on November 28, 2018, which granted in part and denied in part Father’s motion to modify. In this modification judgment, the court granted Father’s request for a reduction in child support, decreasing his child support obligation from $396.00 per month to $315.00 per month.

The trial court’s November 2018 modification judgment denied Father’s motion to modify to the extent he requested an award of joint legal custody, and the court ordered Mother continue to be awarded sole legal custody subject to some new restrictions in the parenting plan. As to physical custody of Child, the court’s November 2018 modification judgment granted in part and denied in part Father’s motion to modify. Specifically, the trial court granted Father’s request for additional physical custody of Child for alternating weeks during the summer (in addition to the periods of custody awarded in the January 2017 modification judgment), and the court denied Father’s request for equal parenting time.¹

Subsequently, Father and Mother each filed a timely post-trial motion. Father’s motion to amend asserted that, inter alia , the trial court’s November 2018 modification judgment failed to make sufficient findings required under section 452.375 RSMo 2016.² And Mother’s motion to amend alleged that, inter alia , the trial court should adjust the child support order in the November 2018 modification judgment to include the cost of health insurance paid by Mother on behalf of Child.

On March 11, 2019, the trial court entered an amended judgment, which: denied Father’s motion to amend; granted Mother’s motion to amend to the extent she requested the court to adjust the child support order to include the cost of health insurance paid by Mother on behalf of Child; and ordered Father to pay child support in the amount of $366.00 per month instead of the amount of $315.00 per month as previously ordered in the November 2018 modification judgment.

Father now appeals from the trial court’s November 2018 modification judgment, as amended by its judgment entered in March 2019.

II. GENERAL STANDARD OF REVIEW

In a court-tried case, we review a trial court’s judgment pursuant to Murphy v. Carron , 536 S.W.2d 30, 32 (Mo. banc 1976). T.S.I. v. A.L.(C.)B. , 521 S.W.3d 317, 320 (Mo. App. E.D. 2017). Accordingly, we will affirm the trial court’s judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Id.

III. DISCUSSION

In Father’s first point on appeal, he argues the trial court’s November 2018 modification judgment, as amended by its judgment entered in March 2019, is erroneous as a matter of law because it fails to make sufficient findings required under section 452.375.³ For the reasons discussed below, we agree.⁴

A. Relevant Law

Section 452.375.6 states:

If the parties have not agreed to a custodial arrangement, or the court determines such arrangement is not in the best interest of the child, the court shall include a written finding in the judgment or order based on the public policy in [section 452.375.4] and each of the factors listed in subdivisions (1) to (8) of [section 452.375.2] detailing the specific relevant factors that made a particular arrangement in the best interest of the child. If a proposed custodial arrangement is rejected by the court, the court shall include a written finding in the judgment or order detailing the specific relevant factors resulting in the rejection of such arrangement.

(emphasis added).

In addition, the public policy in section 452.375.4 is as follows:

The general assembly finds and declares that it is the public policy of this state that frequent, continuing and meaningful contact with both parents after the parents have separated or dissolved their marriage is in the best interest of the child, except for cases where the court specifically finds that such contact is not in the best interest of the child, and that it is the public policy of this state to encourage parents to participate in decisions affecting the health, education and welfare of their children, and to resolve disputes involving their children amicably through alternative dispute resolution. In order to effectuate these policies, the court shall determine the custody arrangement which will best assure both parents participate in such decisions and have frequent, continuing and meaningful contact with their children so long as it is in the best interests of the child.

(emphasis added).

Finally, section 452.375.2 provides:

The court shall determine custody in accordance with the best interests of the child. When the parties have not reached an agreement on all issues related to custody, the court shall consider all relevant factors and enter written findings of fact and conclusions of law, including, but not limited to, the following:

(1) The wishes of the child’s parents as to custody and the proposed parenting plan submitted by both parties;

(2) The needs of the child for a frequent, continuing and meaningful relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child;

(3) The interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child’s best interests;

(4) Which parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent;

(5) The child’s adjustment to the child’s home, school, and community;

(6) The mental and physical health of all individuals involved, including any history of abuse of any individuals involved. If the court finds that a pattern of domestic violence as defined in section 455.010 has occurred, and, if the court also finds that awarding custody to the abusive parent is in the best interest of the child, then the court shall enter written findings of fact and conclusions of law. Custody and visitation rights shall be ordered in a manner that best protects the child and any other child or children for whom the parent has custodial or visitation rights, and the parent or other family or household member who is the victim of domestic violence from any further harm;

(7) The intention of either parent to relocate the principal residence of the child; and

(8) The

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