Court of Appeals of Missouri, Western District, First Division
IN RE THE MATTER OF N.S.M., A MINOR BY AND THROUGH HER NEXT FRIEND REBECCA JEAN SALAZAR, AND REBECCA JEAN SALAZAR, Appellant,
NICHOLAS SCOTT MCSHANNON, Respondent.
from the Circuit Court of Clay County, Missouri The Honorable
K. Elizabeth Davis, Judge
Before: Gary D. Witt, Presiding Judge, Alok Ahuja, Judge and
Edward R. Ardini, Jr., Judge
D. Witt, Judge
Rebecca Salazar ("Salazar") appeals from a judgment
of modification of the Circuit Court of Clay County, which
modified a previously entered paternity judgment regarding
the custody, child support, and visitation arrangements for a
minor child of Salazar and Respondent Nicholas McShannon
("McShannon"). The modification judgment was, in
part, a recordation and adoption by the trial court of a
stipulated agreement between Salazar and McShannon, in lieu
of a trial on the merits, on McShannon's motion to modify
custody and parenting time. On appeal, Salazar argues that
the trial court erred in not allowing her to vacate the
modification judgment due to ineffective assistance of
counsel and because her agreement was not a knowing,
conscious, and voluntary decision. We affirm.
April 14, 2016, McShannon filed a Motion to Modify Custody
and Parenting Time ("Motion to Modify") and a
Verified Motion Objecting to Relocation of the parties'
nine-year-old daughter. A Motion to Appoint a Guardian ad
Litem was filed by McShannon on April 18th, and a motion
requesting that Salazar submit to drug testing was filed on
April 22nd. These two motions were noticed up for a hearing
on May 3, 2016, at which time Salazar's trial counsel
appeared. There is no dispute that each of these motions was
properly served and that Salazar received proper notice of
the hearing. The trial court granted McShannon's motion
requesting a drug test of Salazar, and a guardian ad litem
was appointed for the child. Salazar's drug test was
positive for illegal drugs.
trial on McShannon's Motion to Modify was set for August
16, 2016, at which time the parties appeared. Attorneys for
both parties and the guardian ad litem announced before the
court that the matter had been settled and they desired to
put the settlement on the record. The parties'
Stipulation of Modification As to Custody, Parenting Time and
Child Support ("Stipulated Agreement") was offered
and received into evidence without objection. The Stipulated
Agreement was signed by both McShannon and Salazar and each
signature was notarized.
Stipulated Agreement provided that McShannon would receive
sole legal and physical custody of the child, Salazar would
receive supervised visitation, and it contained detailed
provisions regarding the times, places, and possible
supervisors for Salazar's visitation. It also listed
specific individuals who were not allowed to be present
during any visitation and specified that, in addition, anyone
who had been charged with, pled guilty to, or convicted of a
drug-related offense, violent offense, sexual offense, or any
other felony could not be present at visitation. The
Stipulated Agreement also contained a means by which Salazar
could graduate to unsupervised visitation following drug
treatment and drug testing. The parties agreed that the
calculated Form 14 presumed child support amount was $363 per
month, but asked the court to find the amount to be unjust
and inappropriate. The parties agreed that a just amount for
Salazar to pay in monthly child support would be $250 to
begin on October 1, 2016. At the hearing where the parties
requested the trial court to approve their agreement,
McShannon testified that he believed the Stipulated Agreement
was in the best interest of the child, and the Stipulated
Agreement, by its written terms, also provided the same.
Salazar and the guardian ad litem, while present at the
hearing, did not present any evidence.
the hearing the trial court found that the parenting plan in
the Stipulated Agreement was in the child's best interest
and would be incorporated into the court's judgment. The
court found the presumed child support amount to be unjust
and inappropriate and that child support would be set at $250
per month based on the agreement of the parties. The court
found the remaining terms of the agreement to be fair,
reasonable and not unconscionable. A formal judgment
("Modification Judgment") was executed by the trial
court consistent with the agreement of the parties.
September 14, 2016, Salazar, with new counsel, filed her
Notice of Appeal simultaneously with a Motion to Vacate
Stipulation of Modification or in the Alternative, Motion for
New Trial ("New Trial Motion"). The New Trial
Motion, citing Rules 75.01, 78.01, and 78.04, alleged that
Salazar reluctantly signed the Stipulated Agreement and that
she did not understand nor was she given enough time to make
a conscious, intelligent, or knowing decision regarding the
agreement. The New Trial Motion was not verified or supported
by affidavit. McShannon filed a response opposing
Salazar's New Trial Motion.
trial court held a hearing on Salazar's New Trial Motion
on October 25, 2016. No evidence was presented to the court
regarding the New Trial Motion, and Salazar did not attempt
to offer any evidence at the hearing. On November 11, 2016,
the trial court denied Salazar's New Trial Motion.
Salazar now appeals.
sole point on appeal, Salazar argues that the trial court
erred in not allowing her to vacate the Stipulated
Agreement and refusing to grant a new trial because
her signature on that agreement was the result of her
reliance on statements made by trial counsel in explaining
the result that counsel believed would occur should the
matter go to trial, which amounted to ineffective assistance
of counsel, and her decision to sign the Stipulated Agreement
was not a knowing, conscious, and voluntary decision made by
her but was the result of counsel's actions falling below
the objective standard of reasonableness.
Authority to ...