Court of Appeals of Missouri, Eastern District, First Division
Appeal from the Circuit Court of Pike County. Hon. Chris Kunza Mennemeyer.
Dan J. Pingelton, Columbia, MO, for appellant.
Joseph A. Brannon, New London, MO, for respondent.
CLIFFORD H. AHRENS, Judge. Lawrence E. Mooney, P.J., concurs. Lisa Van Amburg, J., concurs.
CLIFFORD H. AHRENS, Judge
Trisha Sonntag (Mother) appeals the trial court's dismissal of her motion to modify the court's previous order granting Timothy Scherder (Father) sole physical custody of their daughter (Child). We reverse and remand.
Child was born in the state of Louisiana in 2002. The parents separated in 2007. A Louisiana court adjudicated paternity and granted joint custody. Mother married and moved to Pulaski County, where she registered the Louisiana judgment. Father moved home to Pike County and filed a motion to modify the Louisiana custody order. Mother's motion to change venue to Pulaski County was denied, and in January 2009 the Pike County trial court granted Father sole physical custody, with Mother having visitation and paying child support. This court affirmed that judgment in December 2010. Scherder v. Sonntag, 326 S.W.3d 833 (Mo. App. E.D. 2010).
In May 2011, Mother filed in Pulaski County a motion to modify, seeking sole physical and legal custody of Child. The motion alleged changed circumstances in that: Father had a new girlfriend, Bobbi, and they had a new baby; Bobbi is physically and emotionally abusive to Child and Father allows it; both Father and Bobbi use excessive corporal punishment upon Child; Father had changed residences and jobs several times and failed to provide a stable environment for Child; and Father refuses to cooperate with Mother or facilitate communication between Mother and Child. Father moved for a change of venue to Pike County, which was granted in December 2011. The case was assigned to a judge in Pike County in April 2012 and, after a series of continuances and other delays, the parties appeared before the trial court in January 2014 (Child then age 11). The court heard testimony from Child ( in camera ), Mother, and the guardian ad litem.
The evidence supporting Mother's motion can be summarized as follows. Child testified that Bobbi is often harsh toward her and favors her own children. (By the time of the hearing, Father and Bobbi had married and had a second child; Bobbi also had a child from a previous relationship.). She explained, " Bobbi puts me down a lot and makes me feel like I'm a burden to her." Child further testified that Bobbi " sometimes throws stuff at me" and often spanks her, most recently two days before the hearing. In 2011, Bobbi spanked Child several times, causing her to fall against a sink and prompting Mother to contact Children's Division, which investigated and directed Bobbi not to use physical punishment. Child expressed a desire to live with Mother because, in sum: Child feels more comfortable with Mother " because I can show my feelings with her and Bobbi won't put me down all the time; " Child prefers Mother's house where she has her own room and some privacy; and Mother " does more" with Child and would allow Child to participate in extra-curricular activities. Mother testified that she is concerned about Child's treatment and living conditions at Father's house, that Father refuses to communicate with her, and that she could provide a better environment for Child.
Based on the foregoing testimony, Father moved for dismissal or directed verdict arguing that Mother had failed to establish a significant and ongoing change of circumstances since the prior order. The court agreed and granted dismissal before hearing from the GAL. From the bench, the court enumerated each allegation in Mother's motion (Father's marital status, his job changes, Bobbi's corporal punishment, their housing relocations, their failure to provide a stable home, and ...