Traxel v. Traxel
| Decision Date | 13 October 2009 |
| Docket Number | No. WD 70121.,WD 70121. |
| Citation | 295 S.W.3d 215 |
| Parties | Brooke Nicole TRAXEL, Respondent, v. Richard Louis TRAXEL, Appellant. |
| Court | Missouri Court of Appeals |
Steve D. Burmeister, Independence, MO, for Respondent.
Allen S. Russell, Jr., Kansas City, MO, for Appellant.
Before Division III: THOMAS H. NEWTON, Chief Judge, and JAMES E. WELSH and KAREN KING MITCHELL, Judges.
This is an appeal from a final judgment of modification of a parenting plan. The trial court entered the modified plan based upon consent of the parties. Appellant objected to certain terms of the modified plan, and moved for a new trial as to those aspects of the modified plan. The court denied the motion and this appeal follows. We reverse and remand.
Appellant Richard Louis Traxel ("Father") and Respondent Brooke Nicole Traxel ("Mother") were divorced on August 18, 2004. At that time, they were awarded joint legal and joint physical custody of their minor children Kayla Traxel and Abigail Traxel. Mother and Father would alternate weeks with the girls.
On August 23, 2007, Father filed a motion to modify, seeking a reduction in child support. Mother filed an answer and counter-motion, seeking modification of several aspects of the parenting plan.
On May 22, 2008, the parties appeared in court for a hearing on their pending motions. Both parties presented evidence, and Mother testified that she had had difficulty with Father's cooperation and communication in regard to the children's medical care. This was especially problematic, because Abigail, the younger of the two daughters, has serious medical issues. She was born two months premature and suffers from many mental and physical disabilities, including cerebral migrational defect with failure to thrive, borderline cerebral palsy, and epilepsy. She requires a feeding pump and formula for most of her nutrition, uses a wheelchair, does not speak, and has seizures.
During the hearing, the court ordered a recess. Following the recess, the parties stated that they had settled their disputes and agreed to a modified parenting plan. With respect to Abigail's medical needs, Mother testified as follows:
Q. All right. Now, with reference to further defining—to use your words— the parenting plan, you and he have agreed that, with reference to medical decisions for Abigail, that you and he will follow the decisions of her team of doctors provided either one of you have the right to within 30 days of any decision to retain the services or ask for a consultation or second opinion from another medical doctor; is that correct?
A. Correct.
Q. And upon that request for a consult from another doctor, that doctor and the team of physicians will agree to consult with each other. And after such consultation, the team of doctors along with the consult will make a final decision; is that correct?
A. Correct.
Q. And you and he, as the parents of Abigail, will agree to follow their decisions, is that correct?
A. Correct.
Q. Okay. With—
A. Unless—I'm sorry. The last statement, we are to follow exactly what the doctors have ordered, correct?
Q. That's our understanding, yes.
A. Okay.
The commissioner further questioned Mother,
Mother answered, "Absolutely."
When Father testified, he was not asked specifically about Abigail's medical decisions,1 but the following exchange did take place:
Q: Mr. Traxel, you sat here and heard me walk through with your children's mother all the other provisions of our agreement; is that correct?
A. Yes.
Q. And are you in full agreement with all of them?
A. Yes.
The commissioner then went on to enter the following on the record:
Thereafter, despite their testimony, the parties were unable to agree as to the language of the proposed modified parenting plan. Each side provided his or her version to the court.2 On July 25, 2008 the court entered a judgment of modification, with a corresponding modified parenting plan. The modified parenting plan states, in pertinent part:
MEDICAL, HEALTH CARE AND EDUCATION DECISIONS FOR ABIGAIL:
10. All medical, dental and health care decisions for the minor child, Abigail, and how emergency care will be handled, shall be handled and decided by Abigail's Team of Doctors of Children's Mercy Hospital and/or Network, including any and all educational/treatment programs for which Abigail may attend if in her best interest. In the event either party desires a second opinion regarding the decision of Abigail's Team of Doctors of Children's Mercy Hospital and/or Network, that party shall be allowed thirty (30) days to acquire a second opinion. The Team of Doctors of Children's Mercy Hospital and/or Network, or a referral made by said doctors, and the physician providing the second opinion shall ultimately make the final decision for Abigail's treatment and both parties shall follow the decisions made by them for Abigail....
MEDICAL AND HEALTH FACILITY DECISIONS FOR ABIGAIL:
11. All decisions for the minor child, Abigail, regarding her need to ultimately be placed in a medical and/or health facility shall be decided by Abigail's Team of Doctors of Children's Mercy Hospital and/or Network. In the event either party desires a second opinion regarding the decision of Abigail's Team of Doctors of Children's Mercy Hospital and/or Network, that party shall be allowed thirty (30) days to acquire a second opinion. The Team of Doctors of Children's Mercy Hospital and/or Network and the physician providing the second opinion shall ultimately make the final decision for Abigail's placement and both parties shall follow the decisions made by them for Abigail....
EXTRACURRICULAR ACTIVITIES:
12. ... Activities of the minor child, Abigail, will be decided by her Team of Doctors of Children's Mercy Hospital and/or Network as to whether it is in the best interest of the minor child, Abigail, to participate in any extracurricular activities in accordance with the previous paragraph 10.
On August 25, 2008, Father filed a motion to set aside the judgment of modification and for new trial. On September 5, 2008, the court denied Father's motions without comment.
In reviewing a court-tried case, we affirm the judgment of the court unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or misapplies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). "There is a presumption that the best interests of the child motivate the trial court." Buschardt v. Jones, 998 S.W.2d 791, 796 (Mo.App. W.D.1999).
Father claims that the trial court erred in implementing its modified parenting plan, in that the plan's provisions allowing the "Team of Doctors of Children's Mercy Hospital and/or Network" to make all of Abigail's medical and educational decisions violates the Missouri statutes governing child custody. Pursuant to section 452.375.1(2),3 "`joint legal custody' means that the parents share the decision-making rights, responsibilities, and authority relating to the health, education and welfare of the child, and, unless allocated, apportioned, or decreed, the parents shall confer with one another in the exercise of decision-making rights, responsibilities, and authority." In this case, Mother and Father have had joint legal custody and joint physical custody of both of their girls.
In the three provisions of the modified parenting plan set forth above ("sections 10-12"), Father claims the Commissioner effectively assigned at least a portion of the parents' legal custody of Abigail to her "team of doctors." Section 452.375.5(5)(a) allows a court to grant custody to a third party "[w]hen [it] finds that each parent is unfit, unsuitable, or unable to be a custodian, or the welfare of the child requires, and it is in the best interests of the child...." However, to do this, the court must make that third person a party to the action. § 452.375.5(5)(a). Parents who share joint legal custody of a child or children can agree to designate a third party as a "tie-breaker" to resolve individual issues upon which they cannot agree and a court's acceptance of such an...
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