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Robertson v. Nelson

Court of Appeals of Missouri, Western District, First Division

October 25, 2016

BRADLEY M. ROBERTSON INDIVIDUALLY AND AS NEXT FRIEND FOR OLIVIA Y. ROBERTSON, Appellant,
v.
LORNA NELSON, Respondent.

         Appeal from the Circuit Court of Adair County, Missouri The Honorable Thomas P. Redington, Judge

          Before: Anthony Rex Gabbert, P.J., Thomas H. Newton, and Alok Ahuja, JJ.

          Anthony Rex Gabbert, Judge

         Bradley M. Robertson (Father) appeals the circuit court's modification of paternity judgment on Father's "Motion to Modify as to Child Support" and Lorna Nelson's (Mother) "Counter-Motion to Modify." Father asserts ten points on appeal. First, he contends that the circuit court erred in changing physical custody with regard to Father's and Mother's child because there was insufficient evidence that a change in the circumstances of the child or her custodian occurred. Second, Father contends that the circuit court erred in changing physical custody regarding the child because it was against the weight of the evidence that a change in physical custody was in the child's best interest. Third, Father contends that the circuit court erred in changing legal custody because there was insufficient evidence a change in the circumstances of the child or her custodian occurred. Fourth, Father contends that the court erred in admitting evidence of facts that predate the prior judgment. Fifth, Father contends that the court erred in restricting his parenting time because there was insufficient evidence that unrestricted contact would endanger the child's physical health or impair her emotional development and it was against the weight of the evidence that restricted parenting time was in the child's best interest. Sixth, Father claims that the circuit court erred in ordering a graduated visitation regime because it erroneously applied the law in that child visitation may only be modified upon a showing that the modification is in the child's best interest and the trial court's parenting plan automatically modifies future visitation without first finding the modification is in the child's best interest based on the circumstances then existing. Seventh, Father contends that the court erred in failing to award him any overnight holiday, vacation, or weekday parenting time because it was against the weight of the evidence to award him such limited parenting time in that he has a positive relationship with the child and is entitled to frequent, meaningful and continuing contact. Eighth, Father argues that the circuit court erred in imputing income of $2, 000 per month to him because there was insufficient evidence Father is able to earn that sum of money in that his qualifications, employment potential, and the available job opportunities in the community showed he could only earn minimum wage. Ninth, Father contends that the circuit court erred in failing to award him a credit on Line 2C of Form 14 because the court erroneously applied the law in that Father was entitled to a credit on Line 2C for a son of Father's that primarily resided with Father since before the prior judgment. Tenth, Father claims that the circuit court erred in failing to modify his child support downward because it was against the weight of the evidence that Father showed a substantial and continuing change in circumstances such that the terms of the prior judgment as to child support were unreasonable. We affirm in part and reverse in part.

         Factual and Procedural Background

         Olivia Robertson (the child) was born March 28, 2011, to Father and Mother. On December 5, 2013, the circuit court entered a Judgment and Declaration of Paternity and Order of Child Custody and Support. Therein the court declared Father to be the child's biological father, incorporated the parties' Joint Parenting Plan, and established child support based on the parties' agreement within the Joint Parenting Plan. The Joint Parenting Plan awarded the child's legal and physical custody jointly to both parents. Mother was to "have physical custody of the minor child at all times except those times when Mother and Father agree it is in the best interests of the minor child to have visits with Father." However, in the event the parents could not agree, Father was to have parenting time every other weekend from 5:00 p.m. Friday until 10:00 a.m. Monday, and in alternate weeks from 5:00 p.m. Sunday to 10:00 a.m. Monday. Father received four nonconsecutive weeks of parenting time in the summer and the parties shared holidays with the child. Father's child support was calculated to be $548 per month, however the parties considered this unjust and inappropriate and agreed to Father paying $400 per month.

         On August 20, 2014, less than nine months after the paternity judgment, Father filed a "Motion to Modify as to Child Support." He alleged therein that his former employer, Jim Robertson's Chevrolet, sold the business to Kirksville Motor Company, and that Kirksville Motor Company subsequently terminated Father's employment. He alleged that he had been unsuccessful in seeking alternative employment and that his sole source of income was from unemployment benefits.

         On September 12, 2014, Mother filed an answer to that motion and on November 3, 2014, filed a Counter-Motion to Modify requesting a modification of custody. Mother alleged that, on October 25, 2014, Father was arrested and charged with the class B felony of Distribution/Manufacturing a Controlled Substance with the Intent to Distribute and the class D felony of Unlawful Use of Drug Paraphernalia. A Guardian ad Litem was appointed to represent the best interests of the child.

         The court heard evidence on November 2 and November 19, 2015. In issuing its Judgment the court made the following findings which are not disputed on appeal:

A search warrant was executed on [Father's] home on October 24, 2014. The Police searched his home and garage. In the garage they found substantial evidence of the manufacturing of methamphetamine, including numerous HCL generators, used to make meth. At least one of the HCL generators tested positive for meth. In the home they found a 'secret room' built off the master bedroom, filled with equipment and materials to grow marijuana. [Father] told the police he used the items to grow tomatoes. In Court he testified that he was "just thinking" about growing marijuana because he thought someday it might be legal. Neither explanation was credible. He denied any knowledge of the meth lab but admitted that he had 'blacked out' the windows to the garage because he didn't like people 'snooping.' He testified that it must have been [another named individual] making meth in his garage. He said he had no idea a meth lab was in his garage, and gave an elaborate explanation as to why each meth making item was in his garage. His denials were not credible in light of Respondent's testimony. Respondent testified that she had seen Petitioner make and use meth, including times with [the named individual]. Respondent testified she left Petitioner when she asked him to promise to stop using meth. He refused.
Petitioner is currently married to 'Dakota' who he admits has 'drug problems.' Petitioner's home is currently no place for a young child.
Petitioner is not employed, by choice. He uses gifts from his parents to pay just enough child support so that his driver's license is not suspended. He testified that he could obtain employment, but chooses not to because after his child support is deducted, he would not have 'enough money for gas.'

         Standard of Review

         We view the evidence in the light most favorable to the circuit court's judgment and will affirm the judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Blanchette v. Blanchette, 476 S.W.3d 273, 277-278 (Mo. banc 2015). We defer to the circuit court's credibility determinations. Id. at 278 n1.

         Points I and IV

         In Father's first point on appeal he contends that the circuit court erred in changing physical custody with regard to the child because there was insufficient evidence that a change in the circumstances of the child or her custodian occurred in that the drug charges against Father were filed thirteen months prior to trial, those charges were dismissed, there was no evidence Father used drugs since the date of the prior judgment, there was no other evidence showing a change occurred, and there was no evidence any facts were unknown to the court at the time of the prior judgment. In his fourth point on appeal, Father contends that the circuit court erred in admitting evidence of facts that predate the prior judgment because it erroneously applied the law in finding that evidence relevant in that only facts arising since the date of the prior judgment are considered under Section 452.410, RSMo Cum. Supp. 2015, and there was no evidence any facts were unknown to the court at the time of the prior judgment. As Father's arguments regarding Points I and IV overlap, we discuss them together.

         Pursuant to Section 452.410,

the court shall not modify a prior custody decree unless … it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child.

         "Before a custody decree can be modified, there must be a significant or substantial change in circumstances." Scherder v. Sonntag, 450 S.W.3d 856, 859 (Mo. App. 2014).

         We first note that, the court's judgment, which includes numerous findings of fact that are uncontested on appeal, reveals on its face a significant change in circumstances arising after the prior decree, or that were unknown to the court at the time of the prior decree, of both Father and the child. The prior decree was entered on December 5, 2013. On October 24, 2014, less than eleven months after the prior decree was entered, Father's home and garage was found to contain substantial evidence of methamphetamine production. All of the items necessary to manufacture methamphetamine were found in Father's garage. These items included salt, filters, jars, Liquid Fire, drain cleaner, HCL generators, bottles with hoses coming out of the caps, Coleman Camp Fuel, lithium batteries and lithium battery strips removed from the batteries, Sudafed boxes and Sudafed pop-up blister backs, a still used for the manufacture of anhydrous ammonia, and a "cold pack" which can be used in the place of the anhydrous ammonia ingredient. Father admitted at trial that hoses found in the garage tested positive for methamphetamines. Father testified that the windows in the garage were blacked out so that people could not see into the garage and "snoop, " however the garage was located quite a distance from a locked gate. Father testified that he was not manufacturing methamphetamines in his garage. When asked, "[i]f someone was, do you have any idea of who that might be?" he responded, "Yes, [D.C.]." Father testified that D.C. was roofing his house at the time and had access to his garage. When asked where D.C. was on the day Father was arrested, Father indicated that D.C. was incarcerated for possession of methamphetamine.

         Father testified that he entered the garage approximately "every other day" and that the child had entered the garage as well when helping take out the trash. Father gave the court various explanations for the various items found within the garage. The court found Father's explanations for the presence of the drug-related items to lack credibility and believed Mother's testimony with regard to Father's drug involvement.

         Mother testified that, when she lived with Father, Father "was doing marijuana" and "making meth." Mother testified that when he started "it was only supposed to be once every, maybe, four months or so, " . . . "and then he started making it in the garage at least on a weekly basis." Mother testified that she left Father for that reason. She testified that she was breastfeeding the child and Father wanted her to quit breastfeeding as soon as possible so that Mother could participate in "smoking pot, smoking methamphetamine." She testified that, "When he figured out that I wasn't participating anymore, he wanted me out of the house . . . . That's why we were fighting so much, it [] was always a fight. You know, I'd try to pull him into doing things with his family, into doing normal things, and it was always on a timeline. That was always the priority." Mother testified that she had previously used methamphetamine herself and the last time she used methamphetamine was nine months prior to the child's birth. She testified that she had also used marijuana and the last time she used marijuana was just before she left Father's home. Mother testified that she believed "that me leaving him and taking [the child] would make him, you know, think differently, act differently."

         On the same date that the methamphetamine evidence was found in Father's garage, equipment to grow marijuana was found concealed within Father's home. This equipment included a cabinet with a grow light, thermometer, a fan, a filter hose with duct work connecting it to the outside of the residence, chemicals, starter plugs, B.C. Grow, books called Marijuana Grow Basics and Marijuana Grow Saver. A pill bottle for generic Adderall prescribed to Father was found inside the cabinet. Father told officers that the equipment was for growing tomatoes, but testified at trial that he had the materials because he had been considering growing marijuana. Marijuana smoking paraphernalia in the form of a "dugout" glass pipe and a "one-hitter" with a small amount of marijuana were found in the bathroom off the Father's master bedroom.

         At trial Father acknowledged that his wife, whom Father testified that he was separated from but who lived with Father after the date of the prior decree and who had contact with the child, had a drug problem.[1] Father testified, however, that there was no justification for having any concerns about his wife having contact with the child because "she was living in the house previous and prior to the first agreement we signed off on."

         We need not look further than the uncontested factual findings of the court to conclude that a substantial change in circumstances of Father and the child arose after the prior decree. Upon considering the drug related evidence, the trial court concluded that Father's home "is currently no place for a young child." Father does not dispute this conclusion but suggests on appeal that the court's ultimate decision to alter custody was necessarily against the weight of the evidence because the drug-related charges against him were dismissed. This argument has no merit. Evidence regarding dismissal of the charges was available for the court's consideration in determining whether a substantial change in circumstances had actually occurred and whether a change of custody was in the child's best interest. The court's factual findings and judgment were not based on the fact that charges were initially filed against Father and the court makes no reference to charges having been filed; the court's judgment was based on its own conclusions, after hearing all of the evidence, that Father's denials regarding knowledge of the manufacture of methamphetamine on his property were not credible, and that his testimony regarding the marijuana growing equipment was also implausible. The court found his testimony particularly incredible in light of Mother's testimony regarding her prior observation of Father's drug involvement.

         Father suggests in several of his points on appeal, but specifically alleges in his fourth point on appeal, that it was error for the court to consider any evidence of his involvement with drugs that occurred ...


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