Timmerman v. Timmerman

• Court: Missouri Court of Appeals
• Writing for the Court: Robert G. Ulrich
• Citation: Timmerman v. Timmerman, 139 S.W.3d 230 (Mo. App. 2004)
• Decision Date: 27 July 2004
• Docket Number: No. WD 62002.,WD 62002.
• Parties: Dianne R. TIMMERMAN, now known as Dianne E. Bernhard, Respondent, v. Timothy Steven TIMMERMAN, Appellant.

139 S.W.3d 230

Dianne R. TIMMERMAN, now known as Dianne E. Bernhard, Respondent, v. Timothy Steven TIMMERMAN, Appellant.

No. WD 62002.

Missouri Court of Appeals, Western District, En Banc.

July 27, 2004.

Appeal from the Circuit Court, Boone County, Cary George Augustine, J Susan F. Robertson, Columbia, MO, for Appellant.

Charles J. Dykhouse, Columbia, MO, for Respondent.

Before JOSEPH M. ELLIS, C.J., HAROLD L. LOWENSTEIN, ROBERT G. ULRICH, PATRICIA BRECKENRIDGE, PAUL M. SPINDEN, JAMES M. SMART, JR., EDWIN H. SMITH, VICTOR C. HOWARD, THOMAS H. NEWTON, RONALD R. HOLLIGER, and LISA WHITE HARDWICK, JJ.

ROBERT G. ULRICH, Judge.

Timothy Timmerman appeals the judgment of the trial court modifying his custody rights with his four-year-old child. In his sole point on appeal, Mr. Timmerman claims that the trial court's modification resulted in a drastic and significant change in his physical custody rights that was not supported with evidence of a substantial change in circumstances as required by section 452.410.¹ Alternatively, he contends that even if the trial court's judgment resulted only in a modification of his visitation rights, the trial court failed to find that such modification was necessary or in the child's best interests as required by section 452.400.² The judgment of the trial court is affirmed.

Timothy Timmerman (Father) and Dianne Bernhard (Mother) were divorced in January 2000. At the time of the divorce, both Father and Mother were employed by the Columbia Police Department and both worked a rotating schedule of four days working and two days off. In the dissolution decree, Father and Mother were awarded joint legal and physical custody of their daughter. The trial court ordered the parties to share physical custody equally as follows:

Both [Father] and [Mother] acknowledge that both [Father] and [Mother's] jobs require shift work which can fluctuate from year-to-year. As it is impossible to predict their future work schedules, [Father] and [Mother] agree to act in the best interests of the child in determining future visitation schedules. At the time of this Separation Agreement, [Father] and [Mother] both work a rotating schedule of four days working and two days off. [Father] works from 2:30 p.m. to 11:00 p.m. [Mother] works from 10:30 p.m. to 7:00 a.m. [Father] will have custody of the child on scheduled work days from 11:00 p.m. until 2:00 p.m. on the following day. [Mother] shall have custody of the child from 2:00 p.m. until 11:00 p.m. on scheduled work days. In addition, [Mother] shall have the minor child on the first scheduled day off until 8:00 p.m. that night, or until a time mutually agreed upon by both [Father] and [Mother]. [Mother] shall have custody of the minor child from 8:00 p.m. on the first night off and during the entire second day off and night. The above-mentioned schedule for scheduled work days will then begin again....

In January 2001, however, the parties deviated from the schedule. Father had custody of the child on his two days off. He obtained his daughter from Mother after he finished his fourth day of work and returned her to Mother on the morning he returned to work. For example, if Tuesday were the fourth day of Father's shift, he would have custody of the child from Tuesday evening until Friday morning.

In January 2002, Mother's work schedule changed from shift work to a regular schedule Monday through Friday, 7:30 a.m. to 3:30 a.m. With this change in Mother's schedule, the parties were unable to agree on the time the child was to be with each parent (parenting time). Additionally, the parties were unable to agree on whether to send the child to preschool. Mother wanted to enroll the child in preschool to provide her with interaction with other children in a structured environment and to prepare her for kindergarten. Father, on the other hand, wanted his fiancee to watch the child when he was working. Finally, the parties were unable to agree on whether to send the child to a public or private school when she reaches school age. Mother preferred a public school while Father preferred a private school. As a result of these disagreements, Mother filed a motion to modify in February 2002, seeking primary physical custody³ of the child.⁴

At the hearing on the motion, Mother testified that although Father is a good father, with the change in her work schedule, she believes that she can provide the child with a more consistent, stable schedule. Father testified that he has been very active in the child's life and that he doesn't want to be relegated to a weekend dad.

Following the hearing, the trial court entered judgment modifying the parties' parenting time. It provided that the primary residence of the child shall be with Mother during the school year and that the child shall attend preschool until she reaches school age at which time she shall attend the public elementary school in the school district in which Mother resides. Father was granted parenting time every other weekend from Friday morning at 9 a.m. through Monday evening at 5:00 p.m. He also has parenting time with the child every Wednesday from 9:00 a.m. until Thursday morning at 9:00 a.m. During the summer, the parties alternate parenting time of the child every week with the noncustodial parent having custody of the child for two days and an overnight. The trial court also set out a holiday schedule. This schedule calculates to approximately 140 overnight parenting times plus half of the holidays per year for Father. Father appeals.

Standard of Review

This is a court-tried case; therefore, the judgment of the trial court will be affirmed unless no substantial evidence supports it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

Issue on Appeal

In his sole point on appeal, Father claims that the trial court's modification resulted in a drastic and significant change in his physical custody rights that was not supported with proof of a substantial change in circumstances as required by section 452.410. Alternatively, he contends that even if the trial court's judgment resulted only in a modification of his visitation rights, the trial court failed to find that such modification was necessary or in the child's best interests as required by section 452.400.

Section 452.410 governs modification of custody decrees. Under the statute a court shall not modify a prior custody decree unless it finds

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 modification is necessary to serve the best interests of the child.

§ 452.410.1. A change of visitation, on the other hand, is governed by section 452.400.2. Under section 452.400.2, a court may modify a parent's visitation rights "whenever modification would serve the best interests of the child." Proof of a substantial change of circumstances is not required to modify visitation under section 452.400.2. Stirling v. Maxwell, 45 S.W.3d 914, 916 (Mo.App. W.D.2001). Because different standards apply depending on whether custody or visitation is being modified, a court must necessarily determine which is being modified.

Custody is defined in section 452.375.1(1) as "joint legal custody, sole legal custody, joint physical custody or sole physical custody or any combination thereof." Joint physical custody is defined as:

[A]n order awarding each of the parents significant, but not necessarily equal, periods of time during which a child resides with or is under the care and supervision of each of the parents. Joint physical custody shall be shared by the parents in such a way as to assure the child of frequent, continuing and meaningful contact with both parents.

§ 452.375.1(3). Sole physical custody is not defined. Given the definition of joint physical custody, however, sole physical custody would logically "encompass custodial arrangements in which one of the parents is not awarded significant periods of custodial time." Loumiet v. Loumiet, 103 S.W.3d 332, 336-37 (Mo.App. W.D.2003). Under section 452.400.1, a parent "not granted custody of the child" is entitled to visitation. Thus, by definition, visitation is ordered where sole physical custody is awarded to a parent; not under a joint physical custody plan. Loumiet, 103 S.W.3d at 337-38.

What constitutes significant periods of custodial time for purposes of joint physical custody is not defined but left for the trial court's determination. Id. at 337. Consequently, appellate courts have found that the designation of either joint or sole physical custody with liberal visitation has little or no practical effect. Id.; Stewart v. Stewart, 988 S.W.2d 622, 624 (Mo.App. W.D.1999). For instance, in Stewart, in reviewing a claim of trial court abuse in designating one parent as primary physical custodian, this court held that the custody decree that awarded mother primary physical custody with liberal visitation to father should be considered an award of joint physical custody. 988 S.W.2d at 625.

The Southern District has extended such analysis to determination of which standard to apply in cases involving modification of custody decrees. In re D.M.S., 96 S.W.3d 167, 173 (Mo.App. S.D.2003); Baker v. Welborn, 77 S.W.3d 711, 716 (Mo.App. S.D.2002). In Baker, on an appeal from a modification of a custody decree, the Southern District first analyzed the nature of the physical custody arrangement in both the original decree and the modified decree. 77 S.W.3d at 718-19. Although the original decree did not denominate the custody arrangement as joint physical custody, the appellate court determined that the original decree effectively awarded joint physical custody because both parents were given significant periods of time with the children....