Court of Appeals of Missouri, Eastern District, Northern Division
from the Circuit Court of Marion County - Hannibal Honorable
John J. Jackson
M. Hess, Chief Judge.
("Mother") appeals from the judgment of the Circuit
Court of Marion County in favor of A.L. (C.)B.
("Father") denying her motion to modify visitation.
Mother argues two points of error: 1) the trial court's
judgment was not supported by substantial evidence and was
against the weight of the evidence, and 2) the trial
court's order that Mother pay Father $1000 in
attorney's fees was not supported by substantial evidence
and was against the weight of the evidence. We affirm.
and Procedural Background
and Father had a child together ("Child"). Child
was born in February 2005. Father established paternity of
Child in February 2006 via a "Judgment and Decree
Declaring Father-Child Relationship" (the "2006
Judgment"). The 2006 Judgment awarded joint legal and
physical custody of Child. In October 2008, a trial court
entered a modification of the 2006 Judgment (the
"Modification Judgment"), awarding Father sole
legal and physical custody of Child. The Modification
Judgment ordered, in relevant part:
• Child's primary residence would be with Father.
• Every other weekend, Child would be with Mother from
Friday at 6:00 p.m. until Sunday at 6:00 p.m.
• One evening, every other week, Child be with Mother
from 4:00 p.m. until 8:00 p.m.
• During summer vacation, Mother and Father each could
designate two consecutive weeks for the child to be in their
Modification Judgment also incorporated the 2006
Judgment's holiday visitation schedule, which awarded
each parent roughly equal time with Child during specified
holidays. The Modification judgment ordered Mother to pay
Father $707.00 per month for child support.
January 2015, Mother filed a motion to modify and a motion
for contempt. In her motion to modify, Mother requested
additional visitation time with Child and a modification of
her child support obligations. Mother alleged four grounds
for why modifying Child's visitation was in the best
interests of Child:
1. Child was three years old when the Modification Judgment
was entered and would soon be ten years old. Mother and Child
wanted to spend more time with each other.
2. Child has developed a close relationship with Mother's
husband ("Stepfather") and their relationship would
be enhanced by Child being allowed to spend more time with
3. Father refused to cooperate with Mother concerning her
request for additional visitation with Child, and has been
inflexible concerning Mother's visitation.
4. Father does not promote a strong and healthy relationship
between Child and Mother.
motion for contempt, Mother alleged that Father consistently
interfered with her selection of her two-week visitation
period during summer vacation. She requested compensatory
visitation time at least equal to the time she lost because
of Father's interference and for Father to pay her
attorney's fees related to pursing her motion. Father
moved to dismiss or deny both of Mother's motions.
on Mother's motions was held in December 2015. Mother
testified that she was seeking to have visitation with the
Child for 166 to 167 overnight periods, up from the 62
overnights she had. Mother testified that over the seven
years since the 2006 Judgment, Father had denied her
visitation with Child multiple times. Specifically, she lost
four hours of her visitation with Child on the 4th
of July, an hour of visitation on a Father's day, and 90
minutes of visitation when Child's school bus broke down.
When asked by Father's attorney whether some problems
with visitation could be cured if the trial court would
clarify the procedure for requesting summer visitation, she
answered "absolutely not . . . I want more time with
testified that Child told her on nineteen occasions he wanted
to spend more time with her. During cross-examination, she
admitted she had initiated the conversation on nine
occasions. Mother testified that she would talk to Child
about how she was sad they did not get to spend more time
together, and she admitted that she knew it made Child sad to
know she was upset. Mother also testified that she told Child
she was saving money to go back to court in order to get more
time with him. Mother complained that Father would not call
her back when she would call to speak with Child. On
cross-examination, Mother stated there had been five
occasions where she had not received a return phone call, and
that she had no record of Father not returning a call since
testified that he got along with Mother and Father, and each
of their spouses. He testified that he would like to spend
more time with Mother. He testified that when he saw Mother
was sad about not being able see him more, it made him sad.
Child testified he wanted to see how it would feel for Father
to experience what Mother was going through. Child testified
that he and Mother talked approximately once per month about
her wanting to spend more time with him. He testified that he
knew the precise number of nights he spent with Mother per
year. He stated that he had calculated the number himself. On
cross-examination, although he recited the precise number of
nights he spent per year with mother, he could not explain
how he was able to calculate the number. It was revealed that
Child had learning disabilities and was behind in math. Child
also testified that he met with Mother's attorney on at
least one occasion.
testified that due to Child's learning disabilities, he
has an Individual Education Plan ("IEP"). The IEP
emphasizes the importance of consistency and routine in
Child's life, and Father tries to follow the IEP's
guidance. Father expressed concern that the additional
visitation requested by Mother would cause Child to fall
behind in school. Father testified there were a few times
when Child did not complete his homework while in
Mother's care. Father also testified that on ...