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Welcome v. Welcome

Court of Appeals of Missouri, Western District, Fourth Division

August 30, 2016


         Appeal from the Circuit Court of Clay County, Missouri The Honorable David Paul Chamberlain, Judge.

          Before: Mark D. Pfeiffer, Chief Judge Presiding, James Edward Welsh, and Edward R. Ardini, Jr., Judges.

          James Edward Welsh, Judge.

         Anthony Welcome ("Father") appeals the circuit court's judgment modifying the child custody and child support provisions of the judgment that dissolved his marriage to Amanda Welcome Runkles ("Mother"). Finding no error, we affirm the circuit court's judgment.


         In February 2011, the Clay County Circuit Court entered a judgment dissolving the marriage of Father and Mother. The parties were granted joint legal custody and joint physical custody of their four children, two girls and two boys, who were ages 10, 6, 5, and 1 at the time. The court designated Mother's address as the children's for mailing and educational purposes.

         Under the original parenting plan, Father and Mother exercised a two-week rotating schedule of equal parenting time, as follows:

Week 1: Monday (Mother), Tuesday (Mother), Wednesday (Father), Thursday (Father), Friday (Mother), Saturday (Mother), Sunday (Mother).
Week 2: Monday (Mother), Tuesday (Mother), Wednesday (Father), Thursday (Father), Friday (Father), Saturday (Father), Sunday (Father).

         The original plan specified only Father's holidays. It stated, generally, however, that "[t]he children shall reside with [Mother] except at the following specific times when the children shall reside with [Father], " indicating that Mother's holidays were those not designated as Father's. It further provided that the "holiday and vacation schedules supersede the normal residence schedule, " that the "parents and the children shall have telephone access with each other at reasonable times, " and that the parents shall not use the children as messengers. The court ordered Father to pay $1, 300 per month in child support. That was modified to $590 in 2012.

         In February 2015, Mother filed a motion to modify the dissolution judgment. She sought to change Father's parenting time to every other weekend, from Friday at 6:00 p.m. to Sunday at 6:00 p.m. and one evening per week. Mother also sought modification of the child support. Father filed a counter-motion also seeking to modify the parenting plan and child support.

         The parties' motions were taken up at a hearing on July 14, 2015. Mother presented evidence that Father had prohibited her from communicating with or contacting the children when they were in Father's custody. The evidence showed that Father had no landline telephone, had blocked Mother's number on his cell phone, and had relied on the children to convey messages to Mother. In addition, Father had denied Mother custody on her holidays when they fell during his regularly scheduled days. Mother also testified that the children were skipping nap time, losing their school work, and getting on the wrong bus at times because the original custody schedule was confusing and made it hard for the children to remember which home they were going to on which day of the week.[2]

         In its Judgment Order of Modification, the circuit court sustained both Mother's and Father's motions to modify "to the extent set forth in this Order." After making findings as to each of the statutorily mandated "best interests" factors, the court concluded that "it is in the [children's] best interest to modify the current custody order/parenting plan." The court rejected both parties' parenting plans and adopted its own. The court granted Father "alternating weekends from Friday after school until Monday morning before school . . . and every Wednesday after school until Thursday morning before school." The court also set forth a specific holiday schedule for both Mother and Father and reestablished the requirement that "each parent shall have reasonable access to the minor children by telephone."

         The circuit court also rejected both parties' Form 14 calculations as to child support and adopted its own. The court granted Father a 25% adjustment for his periods of custody, and, in accordance with its Form 14 calculation, set Father's child support at $1, 650 per month.

         Standard of Review

         "We will affirm the judgment of the trial court unless it is not supported by substantial evidence; it is against the weight of the evidence; or it misstates or misapplies the law." Clayton v. Sarratt, 387 S.W.3d 439, 444 (Mo. App. 2013). "Judging credibility and assigning weight to evidence and testimony are matters for the trial court, which is free to believe none, part, or all of the testimony of any witnesses." Id. at 444-45. We will "affirm the judgment of the trial court on any ground supported by the record." Id. at 445.

         Parenting Time

         In Point I, Father contends that the circuit court misapplied the law in reducing his parenting time by fifty-two overnights per year without first making a finding that there had been a change in circumstances. Father asserts that, under section 452.410.1, RSMo, [3] the trial court must make a finding of a change of circumstances as to the children or their custodian as a threshold matter before considering the factors found in ...

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