Court of Appeals of Missouri, Eastern District, Second Division
from the Circuit Court of Lincoln County. Honorable David
M. Hais, Julie D. Hixson-Lambson, Co-Counsel, Joseph A.
Lambson, Co-Counsel, Clayton, MO, for appellant.
L. Tienter, Respondent, Acting Pro se, Troy, MO.
T. Quigless, J.
(Rue) Tienter (" Mother" ) appeals the trial
court's judgment denying her motion to modify the 2007
judgment and decree of dissolution of marriage between Mother
and Dustyn Tienter (" Father" ). In her motion to
modify, Mother sought sole legal custody and joint physical
custody of the children, D.T. and L.T. She also requested the
court award Father visitation and order him to pay reasonable
child support. The court found there had not been a
substantial change in circumstances warranting modification.
On appeal, Mother alleges the trial court erred: (1) in
denying her motion to modify legal and physical custody; (2)
in failing to modify the visitation schedule; and (3) in
failing to award Mother child support in the event she should
have been awarded physical custody. We reverse the judgment
and remand the case to the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
and Father were married in 2000. During the marriage, they
had two children, a son, D.T., and a daughter, L.T. ("
the children" ). D.T. was born in 2000 and L.T. was born
in 2002. In April 2007, the trial court entered a judgment
dissolving the parties' marriage. The dissolution
judgment awarded the parties joint legal custody of the
children, awarded Father sole physical custody of the
children, and awarded Mother visitation. Mother had the
children every other weekend during the school year. A
different visitation schedule was set forth for the summer
months, giving Mother more time with the children. Neither
party was ordered to pay child support.
2013, Mother filed a motion to modify custody and support.
Mother claimed there had been a substantial change in
circumstances warranting a modification of the original
custody arrangement. In her motion, Mother sought sole legal
and joint physical custody of the children, with visitation
awarded to Father every other weekend and overnight on
Wednesday and Thursday on the weeks when Father did not have
the weekend overnight. Mother also asked the court to order
Father to pay her reasonable child support.
January 2014, the trial court held a hearing on Mother's
motion to modify. The court heard testimony from Mother,
Father's parents--Fran and John Tienter ("
Grandparents" ), Father and his new wife, Evelyn Tienter
(" Evelyn" ). In addition, the court interviewed
L.T. and D.T. in camera. The following evidence was
presented at the hearing.
Father's Job and Marital Changes
was employed with the police department; his schedule
required him to work shifts from noon until midnight. After
the parties' 2007 dissolution, Father obtained a second
job and he worked significant overtime hours each month at
the police department. As a result of Father's work
schedule, the children spent three to four nights a week with
their paternal Grandparents.
Father began dating and living with Evelyn, the children
began spending more time at Father and Evelyn's home.
Evelyn also worked two jobs--a full-time position and a
part-time position in the evening. Therefore, the children at
times were under the supervision of Evelyn's teenage son.
After living together for a few years, Father and Evelyn
married in 2013.
The Children's Relationship with Evelyn
and Grandparents testified that they had concerns Evelyn was
mistreating the children. Mother stated that L.T. became
upset and cried when Mother dropped her off at Father and
Evelyn's home. Both Grandparents also noted the children
became upset when they had to go to Father's home. In
addition, Grandmother reported seeing bruising on L.T.'s
arm when she was 8; Grandmother stated L.T. indicated Evelyn
had punched her. Grandfather testified that he felt the
situation in Father's home was causing the children to be
depressed. He confirmed he saw bruising on L.T.'s arm.
Grandfather recounted that L.T. told him about an incident
where Evelyn tried to put an earring in L.T.'s ear and
smothered L.T.'s face in a pillow while L.T. screamed.
The incident was witnessed by D.T. Father testified he was
called home from work after the incident happened and saw
scratches on Evelyn. Neither Father nor Evelyn denied the
incident occurred. Rather, Evelyn testified that she "
ended up on top" of L.T. L.T. reported she was "
freaking out" and the incident made her uncomfortable
because she was afraid it would happen again, except "
without an earring."
Father and Evelyn all testified L.T. had been disciplined in
Father's home in various ways: by Evelyn spanking her, by
having her door removed from the hinges, by having her books
taken away, and by having to clean tile with a toothbrush.
Father could not recall what L.T. did to warrant being
punished. He maintained, however, that the discipline was
approached their son regarding the children's
relationship with Evelyn. Grandparents testified that when
things did not improve, they discussed the situation with
Mother, who then contacted Father after speaking with L.T.
and D.T. Mother indicated she hotlined the alleged abuse, but
after a home visit the allegations were found to be
unsubstantiated. L.T. and D.T. wrote Father a letter
explaining they did not want to be alone with Evelyn. Evelyn
found the letter and told Father about it.
The Children's ...