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In re N.S.M.

Court of Appeals of Missouri, Western District, First Division

July 11, 2017

IN RE THE MATTER OF N.S.M., A MINOR BY AND THROUGH HER NEXT FRIEND REBECCA JEAN SALAZAR, AND REBECCA JEAN SALAZAR, Appellant,
v.
NICHOLAS SCOTT MCSHANNON, Respondent.

         Appeal 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

          Gary D. Witt, Judge

         Appellant 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.

         Factual Background

         On 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.

         The 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.

         The 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.

         Following 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.

         On 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, [1]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.

         The 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.

         Point One

         In her sole point on appeal, Salazar argues that the trial court erred in not allowing her to vacate the Stipulated Agreement[2] 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.

         Courts Authority to ...


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