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Holten v. Estes

Court of Appeals of Missouri, Western District, First Division

March 14, 2017

KENNIE VON HOLTEN, Respondent,
v.
MELIA ESTES, NOW COLGAN, Appellant.

         Appeal from the Circuit Court of Henry County, Missouri The Honorable Debra Ann Hopkins, Judge

          Before: James E. Welsh, Presiding Judge, Anthony Rex Gabbert, Judge, Edward R. Ardini, Jr., Judge

          Anthony Rex Gabbert, Judge

         Melia Colgan (Mother) appeals the circuit court's judgment regarding Kennie Vo n Holten's (Father) Motion to Modify parenting time and child support and Mother's Counter Motion to Modify custody, parenting time, and child support. Mother asserts eleven points on appeal. In her first through seventh points she contends that the trial court erred in finding a custodial arrangement designating Father's residence as the child's residence for mailing and educational purposes and awarding Father the majority of the available parenting time to be in the child's best interest because that determination was predicated on the court's erroneous findings that the statutory custody factors set forth in Section 452.375.2(1)-(6) and (8)[1] either favored or did not disfavor such arrangement. In her eighth point Mother contends that the court erroneously applied the law in not granting Mother sole legal custody of the child. In her ninth point Mother contends that the court erred in failing to appoint a guardian ad litem for the child. In her tenth point on appeal Mother contends that the court misapplied the law in adopting a parenting plan that failed to comply with the requirements of Section 452.310(8). In her eleventh point on appeal Mother argues that the court erred in modifying Father's child support obligation. We affirm in part and reverse and remand in part.

         Factual and Procedural Background

         Mother and Father were never married. Their son (child) was born on July 18, 2004. On October 4, 2006, the circuit court entered a Judgment in response to Father's Petition for Declaration of Paternity and Legal Custody. The Judgment reflected Mother's and Father's agreement with regard to child custody and parenting time, and the court's own determination with regard to child support. The child was two years old at the time of the agreement. The parents agreed to share joint physical custody of the child. The agreement provided that the child would reside with Mother except during Father's specified parenting time. Father was to have parenting time with the child every other weekend from 6:00 p.m. Friday until 8:30 a.m. Monday, as well as every Wednesday immediately following Father's weekend visitation, and every Monday immediately preceding Father's weekend visitation. When the child reached kindergarten age, the parents agreed that Father was to have parenting time with the child every other weekend from the time school recessed on Friday (or 6:00 p.m. whenever school was not in session) until 6:00 p.m. Sunday, as well as every Wednesday immediately following Father's weekend visitation and every Monday immediately preceding Father's weekend visitation, from the time school recessed until 8:00 p.m. Father was also to have six weeks of summer parenting time with the child. Father was ordered to pay $534 per month child support.

         In 2009, Mother informed Father of her intent to relocate from Clinton to Osceola. Mother married in October of 2009 and was desiring to relocate with her husband. Father moved to modify the original judgment and the parents ultimately stipulated to a parenting plan which was incorporated into a 2010 Modification Judgment. Pursuant to this Judgment the parents continued to share joint legal and joint physical custody of the child. Mother was allowed to relocate her residence to Osceola, and Mother's address was designated as the child's address for mailing and educational purposes. Father agreed to pay $432 per month child support and the cost of health insurance for the child. Mother agreed to pay for the child's tuition at Lowry City Christian School (LCCS). The agreement designated that the child would attend LCCS "or the public school where the mother resides." It was agreed that the child would attend LCCS "at least through the end of the first grade."

         LCCS does not hold classes on Fridays. When the child was in school at LCCS, it was agreed that Father's parenting time would be every other weekend from Thursday at 6:00 p.m. until Sunday at 6:00 p.m. On Father's weekend off, he was to have parenting time with the child from Thursday after the child's dismissal from school until 6:00 p.m. Friday. Father was to also have the child for six weeks each summer. The agreement provided for a different arrangement if the child attended a school with a five-day week. While at LCCS, Father would have the child between 183 and 186 overnights per calendar year. If the child attended a five-day per week school, Father's parenting time would decrease to between 109 and 112 overnights per calendar year.

         The child attended LCCS through the third grade. In the summer of 2014, Mother spoke with Father regarding starting the child in school at Osceola starting the child's fourth grade year. Father objected. Father corresponded with Osceola school officials, prior to and after his conversation with Mother, advising those officials that he did not want his son enrolled in school at Osceola.

         On August 5, 2014, approximately one week before LCCS classes started, Mother enrolled the child in school at Osceola. Father expressed displeasure to both Mother and the Osceola school officials regarding this decision, indicating his belief that a change in schools was to be the joint decision of both parents. Father text messaged Mother on August 6 and 7 regarding the issue. Mother did not respond. LCCS started its school year approximately ten days before Osceola and during Father's parenting time. Father sent the child to LCCS when LCCS's school year began. Mother then sent the child to school in Osceola upon its commencement and the child attended there for the duration of the 2014-2015 school year.

         On September 11, 2014, Father filed a motion to modify the 2010 Modification Judgment alleging that it was in the child's best interest to modify that judgment as to parenting time and child support. Father's proposed parenting plan recommended that the parties continue to share joint legal and physical custody of the child but that the residential designation of the child for educational and mailing purposes be changed from Mother's residence to Father's. Father resides in the Cole Camp school district. Father recommended that Mother have parenting time with the child on alternating weekends, six weeks during the summer, and alternating holidays.

         On January 16, 2015, Mother filed a Counter-Motion to Modify alleging a substantial and continuing change in circumstances. Mother asked the court to award her sole legal custody of the child, with continued joint physical custody, and to designate Mother's residence as the child's residence for educational and mailing purposes. She proposed that Father have parenting time on alternating weekends and five weeks during the summer.

         During the child's 2014-2015 school year in Osceola, it was discovered that the child was at least a year and a half behind his peers academically and that he might have a lower than average IQ. In May of 2015, Dr. McClimans of the Osceola school district spoke with the parents about having the child attend summer school in both Osceola, where Mother resides, and Cole Camp, where Father resides. Consequently, the child attended the Cole Camp summer school program which started prior to the Osceola program. The Osceola summer program was to begin during Father's custodial time and Father conferred with McClimans about Father hiring tutors for the child in lieu of the child attending the second summer school. McClimans agreed that this would be acceptable as long as documentation was provided regarding the services the child received so that the child could advance to the next grade.

         Trial was held on the modification motions on July 28 and 29, 2015. The child was interviewed by the court in camera pursuant to Section 452.385. Father's evidence at trial included testimony from Mother's mother, a sister-in-law of Mother, the elementary school principal at Osceola, acquaintances of Father, and Father. Mother's evidence included testimony from the superintendent of Osceola schools, acquaintances of Mother, and Mother.

         On January 29, 2016, the circuit court issued a Judgment in the matter. Mother filed a timely Motion for Reconsideration and Motion to Amend Judgment. The Motion to Amend Judgment alleged that the court had failed to make and include written findings required by Section 452.376.6. The trial court denied Mother's Motion for Reconsideration, but sustained Mother's Motion to Amend and on April 25, 2016, issued an amended Judgment Entry. The amended Judgment awards the parties joint legal and physical custody of the child. Father's residence is designated as the child's residence for mailing and educational purposes. Mother is awarded parenting time on alternating weekends from 6:00 p.m. on Friday through 6:00 p.m. on Sunday, and six weeks in the summer. Major holidays are divided. Father is to have the child when Mother does not. Neither parent is ordered to pay child support. Mother appeals.

         Standard of Review

         Our standard of review is set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Schollmeyer v. Schollmeyer, 393 S.W.3d 120, 122 (Mo. App. 2013). We will affirm the circuit court's judgment unless it is unsupported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Id. at 122-123. We view the evidence and all reasonable inferences in the light most favorable to the court's judgment. Id. We assume that the trial court was motivated by the child's best interests in custody decisions, and we defer to its credibility determinations. O'Connell v. Horton, 313 S.W.3d 702, 705 (Mo. App. 2010). We will affirm the trial court's decision unless we are '"firmly convinced that the child's welfare requires some other disposition."' Id. (quoting Buschardt v. Jones, 998 S.W.2d 791, 795-96 (Mo. App. 1999). The party challenging the judgment has the burden of proving error. Beckham v. Beckham, 41 S.W.3d 908, 911 (Mo. App. 2001).

         Discussion Points I-VII

         Mother's first through fifth and seventh points on appeal all allege that the court's determination that it was in the child's best interest to designate Father's residence as the child's residence for mailing and educational purposes and to award Father the majority of the available parenting time is against the weight of the evidence. Mother's sixth point on appeal alleges that the court's determination is not supported by substantial evidence.

         While we appreciate Mother's efforts to avoid multifarious points on appeal by separating her claims by individual Section 452.375.2 factors, our review requires consideration of the evidence in relation to all of the factors and the entire record as applicable to the child's best interest. In re Paternity of D.A.B. by D.A.B., 902 S.W.2d 348, 355 (Mo. App. 1995) ("We do not disturb custody awards unless it is clear from the entire record that the trial court abused its discretion or unless we are convinced the child's welfare dictates a disposition different than that made by the trial court.")

All of the factors listed in section 452.375 (and others) are relevant to custody decisions generally, but every factor may not be relevant to resolving every individual motion. What makes a particular factor relevant to a particular motion is the evidence. … [T]he statutory factors serve only to frame the debate regarding the child's best ...

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