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J.T.P. v. P.F.

Court of Appeals of Missouri, Eastern District, First Division

May 27, 2014

J.T.P., Petitioner/Appellant,
v.
P.F., Respondent/Cross-Appellant

Appeal from the Circuit Court of St. Charles County. Hon. William T. Lohmar, Jr.

Lawrence G. Gillespie, St. Louis, MO, for appellant.

Jack J. Cavanagh, St. Louis, MO, for respondent.

CLIFFORD H. AHRENS, Judge. Roy L. Richter, P.J., concurs. Glenn A. Norton, J., concurs. RICHTER, P.J., AHRENS, J., AND NORTON, J. concurring.

OPINION

Page 498

CLIFFORD H. AHRENS, Judge

J.T.P. (Father) and P.F. (Mother) appeal the trial court's judgment modifying the residential custody schedule for their son, K.R.P. (Son). We reverse.

Background

In 2002 at the age of 21, Mother suffered a stroke that caused long-term cognitive impairment. Mother's son from a previous relationship was four years old at the time. Mother and Father met in 2003 and lived together until shortly after Son's birth in May 2005. Mother then moved into her own apartment with her two young sons. In March 2006, the trial court entered a decree of paternity and judgment awarding the parties joint legal and physical custody of Son. Mother's address was designated as Son's primary address for educational and mailing purposes. Mother had residential custody every Monday and Tuesday, Father had residential custody every Wednesday and Thursday, and they alternated weekends.

Sometime after entry of the judgment, Mother and her sons relocated to reside with her mother, step-father, and adult sister. As a result, Mother and Father now live in different school districts but within reasonable driving distance and in the same county. In April 2010, Father filed a motion seeking sole legal and physical custody on the basis that Mother was neglectful and uncooperative. As a result of those allegations and on Father's motion, the court appointed George Tillman to serve as guardian ad litem (GAL). Mother filed an answer and cross-motion also seeking sole legal and physical custody.

The cause was originally set for trial August 11, 2011, but actually commenced July 30, 2012 and, after three days of testimony spread over five months, ended November 30, 2012. The parties amassed collectively over $96,000 in attorney fees and $9,780 in GAL fees. At trial, the court ascertained that Father merely sought modification of the residential custody schedule in his favor (rather than sole custody) primarily on the basis that Mother's cognitive impairment rendered her unable to assist Son academically. The trial court would ultimately grant Father's request on that basis, awarding Father residential custody during the school year and Mother during the summer, with alternating weekends and holidays. As relevant to this appeal, the following evidence was adduced.

Father has a high school diploma and some college credits. He works night shifts at UPS. Father resides with his girlfriend and has another son whose visitation schedule coincides with Son's days there. Father's girlfriend and mother transport Son to school when Father is working or sleeping, and Father's mother cares for Son in the summer.

Page 499

Mother and her two sons reside with her family, who assist her in parenting the boys. Mother is capable of routine parenting tasks (e.g., waking the children for school, preparing meals, readying the children for bed) but limited in her ability to assist with school work. As a result, her family members provide the necessary academic support. Son's grandmother is an adjunct professor and, at the time of trial, was near completion of a doctoral degree. She described Mother's daily activities as typical of a stay-at-home mom. Son's step-grandfather completed some college hours (40-50) and had ...


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