Court of Appeals of Missouri, Southern District, First Division
TODD MCKINNEY, Individually, and ALBA GRACE MCKINNEY, by her next friend TODD MCKINNEY, Petitioners-Appellants,
LACON SMITH, Respondent-Respondent.
FROM THE CIRCUIT COURT OF TEXAS COUNTY Honorable Mark D.
Calvert, Special Judge.
JEFFREY W. BATES, P.J.
McKinney (Father) appeals from the trial court's
judgment, which: (1) declared him the biological father of
A.G.M. (Child); (2) granted Father joint legal and joint
physical custody of Child with Lacon Smith (Mother); and (3)
ordered Father to pay $1, 500 in partial attorney fees and
costs to Mother. Father presents three points on appeal,
which contend the awards of "primary residential
custody" and partial attorney fees are against the
weight of the evidence. Because this Court is not left with a
firm belief that the judgment is wrong, we affirm.
and Procedural Background
was born in September 2013. Mother and Father are Child's
biological parents. Father has lived and worked in Houston,
Missouri at all times relevant to this case. At the time of
Child's birth, Mother also lived in Houston. In October
2013, Father filed a petition, individually and as next
friend for Child, against Mother pursuant to the Uniform
Parentage Act seeking, inter alia: (1) a declaration
of paternity; and (2) entry of an order of custody and
visitation in accordance with his proposed parenting plan.
Mother filed an answer and counter-petition that agreed with
Father's request for a declaration of paternity, but set
forth an alternative parenting plan. Each party also moved
for attorney fees and costs.
and Father later filed motions for temporary orders regarding
custody. Following a hearing, the trial court entered a
temporary order in July 2014 that awarded the parties joint
physical and joint legal custody, ordered residential
placement with Mother, and granted Father periods of
unsupervised visitation. With the trial court's
permission, Mother immediately moved to Little Rock, Arkansas
to attend law school. Since that time, Child has resided with
Mother in Little Rock, where Mother is currently employed and
attending law school. Mother's expected graduation date
is December 2018.
case was tried to the court. Father's First Amended
Parenting Plan suggested joint legal and joint physical
custody of Child with Mother receiving alternating weekends
during the school year and four weeks during the summer.
Mother's Second Amended Parenting Plan suggested joint
legal and joint physical custody of Child with Father
receiving two weekends a month during the school year and
alternating weeks during the summer. The court rejected both
parenting plans and crafted its own, awarding Mother and
Father joint legal and joint physical custody pursuant to the
1. Prior to [Child] attending Kindergarten, Father shall have
custodial time with [Child] as follows:
a. The second weekend of every month, commencing on the
second Friday of the month, from 6:00 p.m. Friday until the
following Sunday at 6:00 p.m.
[b.] A seven consecutive day period commencing the Sunday
following Father's weekend as outlined in paragraph (a)
from Sunday at 6:00 p.m. to the following Sunday at 6:00 p.m.
2.Once [Child] begins Kindergarten, Father shall have
custodial time with [Child] as follows:
a. The second, fourth and alternating fifth weekends of the
month from Friday at 6:00 p.m. to Sunday at 6:00 p.m.
b. Beginning one week following the recess of school until
one week prior to the commencement of the school year in the
fall. During this period of time, Mother shall have
alternating weekends beginning the first Friday after
Father's summer custody begins from Friday at 6:00 p.m.
to Sunday at 6:00 p.m.
3. Mother shall have custodial time with [Child] at all other
times not specifically set forth to Father herein.
crafting its parenting plan, the trial court also made the
following findings regarding Child's best interest under
(1) The wishes of the child's parents as to custody and
the proposed parenting plan submitted by both parties:
The Court finds that each party has submitted a Parenting
Plan. Mother's Second Amended Parenting Plan allows for
her to have [Child] the majority of the time during the
school year, with Father receiving two weekends per month
during the school year and alternating weeks during the
summer. Father's First Amended Parenting Plan allows for
him to have [Child] the majority of the time during the
school year, with Mother receiving alternating weekends of
visitation during the school year and four weeks during the
summer. The Court finds that this factor slightly favors
(2) The needs of the child for a frequent, continuing and
meaningful relationship with both parents and the ability and
willingness of parents to actively perform their functions as
mother and father for the needs of the child:
The Court finds that both parents have the present ability
and willingness to perform their functions as mother and
father of the needs of [Child]. The Court further finds that
[Child] has a continuing, frequent and meaningful
relationship with both parents. The Court finds that this
factor favors neither party.
(3) The interaction and interrelationship of the child with
parents, siblings, and any other person who may significantly