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T.S.I. v. A.L. (C.)B.

Court of Appeals of Missouri, Eastern District, Northern Division

June 30, 2017

T.S.I, Respondent,
v.
A.L. (C.)B., Appellant.

         Appeal from the Circuit Court of Marion County - Hannibal Honorable John J. Jackson

          Philip M. Hess, Chief Judge.

         Introduction

         T.S.I. ("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.

         Factual and Procedural Background

         Mother 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 respective custody.

         The 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.

         In 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 Mother.
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.

         In her 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.

         A trial 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 [Child]."

         Mother 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 2012.

         Child 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.

         Father 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 ...


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