Tienter v. Tienter
| Decision Date | 23 February 2016 |
| Docket Number | No. ED 101752,ED 101752 |
| Parties | Dustyn Tienter, Respondent, v. Angela (Rue) Tienter, Appellant. |
| Court | Missouri Court of Appeals |
Susan M. Hais, 222 S. Central Ave, Ste 600, Clayton, MO. 63105, Julie D. Hixson–Lambson, Co–Counsel, Joseph A. Lambson, Co–Counsel, 222 S. Meramac Ave, Ste 300, Clayton, MO. 63105, for appellant.
Dustyn L. Tienter (Acting Pro Se), 40 Saxony Drive, Troy, MO. 63379, for respondent.
, Judge
Angela (Rue) Tienter ("Mother") appeals the trial court's judgment denying her motion to modify the 2007 judgment and decree of dissolution of marriage between Mother and Dustyn Tienter ("Father"). In her motion to modify, Mother sought sole legal custody and joint physical custody of the children, D.T. and L.T. She also requested the court award Father visitation and order him to pay reasonable child support. The court found there had not been a substantial change in circumstances warranting modification. On appeal, Mother alleges the trial court erred: (1) in denying her motion to modify legal and physical custody; (2) in failing to modify the visitation schedule; and (3) in failing to award Mother child support in the event she should have been awarded physical custody. We reverse the judgment and remand the case to the trial court.1
Mother and Father were married in 2000. During the marriage, they had two children, a son, D.T., and a daughter, L.T. ("the children"). D.T. was born in 2000 and L.T. was born in 2002. In April 2007, the trial court entered a judgment dissolving the parties' marriage. The dissolution judgment awarded the parties joint legal custody of the children, awarded Father sole physical custody of the children, and awarded Mother visitation. Mother had the children every other weekend during the school year. A different visitation schedule was set forth for the summer months, giving Mother more time with the children. Neither party was ordered to pay child support.
In 2013, Mother filed a motion to modify custody and support. Mother claimed there had been a substantial change in circumstances warranting a modification of the original custody arrangement. In her motion, Mother sought sole legal and joint physical custody of the children, with visitation awarded to Father every other weekend and overnight on Wednesday and Thursday on the weeks when Father did not have the weekend overnight. Mother also asked the court to order Father to pay her reasonable child support.
In January 2014, the trial court held a hearing on Mother's motion to modify. The court heard testimony from Mother, Father's parents—Fran and John Tienter ("Grandparents"), Father and his new wife, Evelyn Tienter ("Evelyn").2 In addition, the court interviewed L.T. and D.T. in camera. The following evidence was presented at the hearing.
Father was employed with the police department; his schedule required him to work shifts from noon until midnight. After the parties' 2007 dissolution, Father obtained a second job and he worked significant overtime hours each month at the police department. As a result of Father's work schedule, the children spent three to four nights a week with their paternal Grandparents.
After Father began dating and living with Evelyn, the children began spending more time at Father and Evelyn's home. Evelyn also worked two jobs—a full-time position and a part-time position in the evening. Therefore, the children at times were under the supervision of Evelyn's teenage son. After living together for a few years, Father and Evelyn married in 2013.
Mother and Grandparents testified that they had concerns Evelyn was mistreating the children. Mother stated that L.T. became upset and cried when Mother dropped her off at Father and Evelyn's home. Both Grandparents also noted the children became upset when they had to go to Father's home. In addition, Grandmother reported seeing bruising on L.T.'s arm when she was 8; Grandmother stated L.T. indicated Evelyn had punched her. Grandfather testified that he felt the situation in Father's home was causing the children to be depressed. He confirmed he saw bruising on L.T.'s arm.
Additionally, Grandfather recounted that L.T. told him about an incident where Evelyn tried to put an earring in L.T.'s ear and smothered L.T.'s face in a pillow while L.T. screamed. The incident was witnessed by D.T. Father testified he was called home from work after the incident happened and saw scratches on Evelyn. Neither Father nor Evelyn denied the incident occurred. Rather, Evelyn testified that she "ended up on top" of L.T. L.T. reported she was "freaking out" and the incident made her uncomfortable because she was afraid it would happen again, except "without an earring."
L.T., Father and Evelyn all testified L.T. had been disciplined in Father's home in various ways: by Evelyn spanking her, by having her door removed from the hinges, by having her books taken away, and by having to clean tile with a toothbrush. Father could not recall what L.T. did to warrant being punished. He maintained, however, that the discipline was appropriate.
Grandparents approached their son regarding the children's relationship with Evelyn. Grandparents testified that when things did not improve, they discussed the situation with Mother, who then contacted Father after speaking with L.T. and D.T. Mother indicated she hotlined the alleged abuse, but after a home visit the allegations were found to be unsubstantiated. L.T. and D.T. wrote Father a letter explaining they did not want to be alone with Evelyn. Evelyn found the letter and told Father about it.
Evidence was presented regarding the children's hygiene and medical care. Grandparents claimed L.T. and D.T. were going to school in dirty clothing. Moreover, L.T., who is four years younger than her stepbrother, wore his clothing to school one day. Father admitted the children had gone to school several times wearing the clothes that they slept in. In addition, Grandparents and Mother claimed that they noticed the children were not showering regularly. Grandparents purchased shampoo, conditioner, deodorant, toothbrushes, and toothpaste for the children to use. Father acknowledged his parents had bought these items, but he stated that supplies were available at home. Father also stated he was aware D.T. had been counseled by the school nurse regarding his hygiene and body odor. Both Father and Evelyn acknowledged D.T.'s clothes had been soiled by animal feces; seven cats and two dogs lived in their home.
In relation to their medical care, Father acknowledged he had not taken the children to the dentist since the divorce in 2007. Father explained he felt the children's school would have notified him if there was a need for dental care. Father also testified that the school informed him L.T. and D.T. needed glasses, but he did not take them to the eye doctor. Instead, Mother helped the children obtain their glasses. Father further acknowledged L.T. had been sent to school several times without her glasses and that D.T. had worn broken glasses for two weeks during the time of Father's wedding.
In addition to providing for the children's routine dental and eye care, Mother testified she took D.T. to a podiatrist because he had been suffering from a painful, ingrown toenail
. Father conceded D.T.'s condition was ongoing and Father had not sought medical care to treat it. Father testified that he flushed the pain medicine prescribed to treat D.T.'s condition down the toilet because it was not contained in the prescription bottle. Also, Father admitted D.T. had struggled with acne for over a year. Father testified he did not take D.T. to a dermatologist, but instead treated his acne with over-the-counter remedies. Evelyn added that D.T.'s acne problem had persisted for over three years and was not getting any better.
During 2013, L.T. had experienced stomach pain, nausea, and weight loss. Mother took her to a physician who prescribed medication for L.T. Father explained he did not take L.T. to a doctor for her symptoms as he did not feel her weight loss was significant.
When the court interviewed the children in camera, L.T. and D.T. indicated they wanted to live with Mother. Both children claimed the situation had improved at Father's home. D.T. clarified things had only gotten better, though, since Mother had sought the modification. While L.T. stated she had worked past issues and felt "safe" at Father's home, she also testified she was "on edge" and felt a false sense of security there, like something could happen to her "at any minute." With regard to interacting with Evelyn, L.T. acknowledged she had probably done some "stupid things." When asked his opinion on custody, Father stated he did not see any reason why the court should change things, but he also testified he felt the most important consideration in determining custody should be the children's wishes.
Following the hearing, the court entered its judgment denying Mother's motion to modify custody and support. The court stated it considered the testimony of each witness and "accepted some of the testimony of the witnesses as creditable and rejected other parts of the testimony as not creditable." However, the court did not specifically reference any testimony or evidence presented at trial. Instead, the court generally noted that its judgment was "consistent with the Court's determination of the creditability [sic] of the evidence and of the witnesses." The court then concluded there had not been a substantial change in circumstances warranting a modification of the 2007 judgment of dissolution. Thus, the court did not modify the visitation schedule or award Mother child support.
Mother filed a motion to amend the...
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