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McKinney v. Smith

Court of Appeals of Missouri, Southern District, First Division

June 15, 2017

TODD MCKINNEY, Individually, and ALBA GRACE MCKINNEY, by her next friend TODD MCKINNEY, Petitioners-Appellants,
v.
LACON SMITH, Respondent-Respondent.

         APPEAL FROM THE CIRCUIT COURT OF TEXAS COUNTY Honorable Mark D. Calvert, Special Judge.

          OPINION

          JEFFREY W. BATES, P.J.

         Todd 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.

         Factual and Procedural Background

         Child 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.

         Mother 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.

         The 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 following schedule:

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.

         In crafting its parenting plan, the trial court also made the following findings regarding Child's best interest under § 452.375.2(1)-(8).[1]

(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 Mother.
(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 ...

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