Tilley v. Tilley, 21606

• Citation: 968 S.W.2d 208
• Decision Date: 30 April 1998
• Docket Number: No. 21606,21606
• Parties: Peggy S. TILLEY, Petitioner-Respondent, v. John M. TILLEY, Respondent-Appellant.
• Court: Court of Appeal of Missouri (US)

Page 208

968 S.W.2d 208

Peggy S. TILLEY, Petitioner-Respondent, v. John M. TILLEY, Respondent-Appellant.

No. 21606.

Missouri Court of Appeals,

Southern District,

Division Two.

April 30, 1998.

James M. McClellan, Sikeston, for Appellant.

James R. Tweedy, Bloomfield, for Respondent.

SHRUM, Judge.

In this domestic relations case, the trial court initially approved a plan of joint legal and physical custody for three children as proposed by John Tilley (Father) and Peggy Tilley (Mother). This plan called for alternating physical custody of the children between Father and Mother every other week. Approximately a year after the original judgment, Father moved for its modification. Specifically, Father asked for sole physical and legal custody of the children. Mother filed a cross-motion in which she sought their sole physical and legal custody. The trial court denied Father's motion but modified the judgment per Mother's request.

Father appeals, contending that (1) the trial court erred by not finding a substantial change in circumstances as alleged in his motion to modify; and (2) the trial court erred in finding a substantial change in circumstances as alleged by Mother and ordering the modification requested by Mother. We affirm that part of the judgment denying Father's motion to modify. We reverse and remand that part of the judgment granting Mother's cross-motion.

FACTS

Father and Mother were married in 1982. Three children were born of the marriage. Mother and Father entered into a separation agreement on February 15, 1995. On the same day, a decree of dissolution was entered incorporating the terms of the separation agreement.

The custody arrangements agreed to by Mother and Father and decreed by the court gave Father and Mother joint legal custody of the children. As part of this plan, Mother and Father agreed to keep each other informed and confer on issues such as doctors and surgeons.

Mother and Father also agreed to a joint physical custody plan. Under this plan, the physical custody of the children alternated every other week between Mother and Father. Mother and Father were entitled to visitation on alternate legal holidays, with separate provisions for Christmas, Mother's Day, and Father's Day. Mother and Father both declined child support due to the joint custody arrangements.

Within a year--on March 7, 1996--Father moved to modify the custody provisions of the dissolution decree so that he would have sole legal and physical custody of the children. In his motion, Father claimed a continuing and substantial change in circumstances resulting from: denial of visitation by Mother; Mother did not comply with the joint custody plan; Mother left the children alone; Mother resided with a paramour and Mother's lifestyle was detrimental to the children; Mother failed to dress the children appropriately for the weather; Mother failed to help with medical care and transport the children for medical care; Mother used and abused alcohol; Mother, paramour, and one child slept in the same bed; and Father provided a more stable and loving environment.

Mother filed a cross-motion to modify custody seeking both physical and legal custody of the children and child support. Her motion claimed a substantial and continuing change in circumstances resulting from: Father's noncompliance with the joint custody plan; Father leaving the children with his mother during his custody time; Father not informing Mother of children's medical needs; Father having an overnight guest when children were present; and Mother providing a more stable and loving environment.

A hearing on the motions was held on July 22, 1996. Evidence produced by Father included his testimony, the testimony of his grandmother, the testimony of his sister, the testimony of Mother's husband, a family photo album, medical records, other photographs Additional facts will be set out in the discussion section of this opinion.

and his Form 14. Mother's evidence consisted of her testimony and her Form 14. The trial court entered its judgment finding a substantial and continuing change of circumstances making the custody provisions of the original decree unreasonable. The modification granted Mother legal and physical custody of the children and granted father visitation. The trial court also required Father to pay $178 per month per child in child support. This appeal followed.

STANDARD OF REVIEW

Our review of a judgment modifying a dissolution decree is governed by Rule 73.01(c) ¹ and the principles enunciated in Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976). In re Marriage of Pobst, 957 S.W.2d 769, 771 (Mo.App.1997). Thus, we must affirm the judgment of the trial court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Id. at 771.

Under Rule 73.01(c)(2), we give due regard to the trial court's opportunity to judge the credibility of the witnesses. Pobst, 957 S.W.2d at 772. The trial judge may believe or disbelieve all, part, or none of the testimony of any witness, and the court may disbelieve testimony even when uncontradicted. Id. at 772. A trial court is better able to assess the credibility of the parties and other intangibles that are not completely revealed by the record on appeal. Id. at 772.

All fact issues upon which no specific findings are made shall be considered as having been found according to the result reached. Rule 73.01(a)(3).

We defer to the trial court's findings on custody modification matters unless we are convinced the best interests of the child require a different disposition. Pobst, 957 S.W.2d at 771.

DISCUSSION AND DECISION

Point I: Denial of Father's Motion to Modify

Father's first point asserts that the trial court erred when it refused to modify the custody provisions of the dissolution decree as he requested because he presented "overwhelming and credible evidence" showing a substantial and continuing change in circumstances from the time of the dissolution decree. We disagree.

In his brief, Father reprises many of his trial claims but often does not develop arguments about why the trial court committed reversible error. To the extent that Father does develop some arguments, he often ignores contrary testimony and evidence presented by Mother. Father simply recounts evidence favorable to his position, argues inferences from that evidence, challenges the credibility of Mother, and then asks this court to rule contrary to the trial court. In denying Father's motion to modify, the court apparently found Mother's evidence to be credible. Rule 73.01(a)(3); Pobst, 957 S.W.2d at 772. We defer to the trial court's credibility determinations. Id.

Father's "weight of the evidence" argument also is without merit. The record supports a conclusion that Father did not prove the substantial and ongoing change of circumstances that was a precursor to a finding that the best interests of the children require rejection of the joint physical custody plan. Guier v. Guier, 918 S.W.2d 940, 947 (Mo.App.1996).

Based on our limited review we cannot say that the trial court abused its discretion when it refused to modify the decree to vest Father with sole physical custody and sole legal custody. The judgment in that regard is supported by substantial evidence, is not against the weight of the evidence, and no error of law appears. An opinion on Father's claim for modification would have no precedential value and merely lengthen this opinion. In keeping with the spirit of Rule 84.16(b), Father's contentions regarding the denial of his motion to modify are denied without discussion. Point I is denied.

Point II: Granting Mother's Motion to Modify

Father's second point maintains that the trial court erred in finding substantial and continuing change in circumstances that warranted a modification from joint legal and physical custody to Mother's sole legal and physical custody. We agree.

A finding of a change in circumstances making the prior decree unreasonable is a " 'precursor to a finding that the best interests of the child necessitate modification.' " Bomar v. Kurtz, 951 S.W.2d 657, 660 (Mo.App.1997) (quoting Guier, 918 S.W.2d at 947). If the evidence " 'wholly fails' " to show a change in circumstances that makes the prior decree unreasonable, then there is not a change in circumstances upon which a modification of child custody can be based. Guier, 918 S.W.2d at 947. Once custody is adjudicated, the presumption is that the custody as originally decreed remains suitable and the burden of showing a substantial change of condition is on the moving party. Ijames v. Ijames, 909 S.W.2d 378, 380 (Mo.App.1995).

Here, the trial court's judgment modifies both physical custody and legal custody provisions of the original decree. Consequently, the evidence must show a substantial and continuing change in circumstances regarding both physical and legal custody.

We look first at evidence of changes affecting the joint physical custody plan. The only evidence adduced on this subject was (1) testimony about problems with or lack of cooperation as to certain holiday visitation and (2) the guardian ad litem's report that the two older children "did not like ... living one week with one parent and one week with the other, that it's too much changing for them constantly."

Interference by a parent with the visitation rights of the other parent is a change in circumstances which may justify modification of custody, especially where the evidence shows an unjustified and flagrant pattern of willful denial of visitation. See Lindell v. Coen, 896 S.W.2d 525, 528 (Mo.App.1995). Ordinarily, however, interference with custody rights is not a conclusive factor, but a relevant factor to be considered in a modification proceeding. Conoyer v. Conoyer, 695 S.W.2d 480, 483 (Mo.App.1985).

Here, Mother testified that Father had the children both...