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S.K.B.-G. v. A.M.G.

Court of Appeals of Missouri, Eastern District, First Division

September 19, 2017

S.K.B.-G., by and through her next friend, J.P.G., and J.P.G., individually, Petitioners/ Respondents,
A.M.G., Respondent/Appellant.

         Appeal from the Circuit Court of Audrain County Honorable Wesley C. Dalton



         A.M.G. (Mother) appeals from the trial court's Findings of Fact, Conclusions of Law and Judgment of Paternity, Child Custody and Support (Judgment) awarding her and J.P.G. (Father) joint legal and physical custody of S.K.B.-G. (Child). We affirm as modified.

         Factual and Procedural Background

         On October 30, 2015, Father filed a Petition for Declaration of Paternity, Child Custody, Visitation and Support seeking a declaration of paternity and joint legal and physical custody of Child. On December 3, 2015, Mother filed her Answer and Counter-Petition admitting Father was Child's natural father, and seeking an order for sole legal and physical custody. On March 23, 2016, the trial court conducted a hearing on the matter, during which the following evidence was adduced.

          Child was born on August 1, 2012. The parties were never married. Mother lived with Father and his family for approximately two years prior to Child's birth, but the parties were not living together at the time of the birth. From the time of Child's birth until sometime in 2013, Mother and Child lived with Mother's mother. During this time, Father voiced concerns, and the parties had a disagreement, because Mother would leave Child in her mother's care even though she was a methamphetamine user with a criminal history. Father testified he saw Child "whenever he could" during this period and before the parties set up a more formal custody schedule.

         Father and several family members testified, and the trial court concluded, that during 2013 and through July 2014, the parties occasionally cohabitated with each other and jointly raised and co-parented Child in Mexico, Missouri.

         In the summer of 2014, Mother moved to Ralls County with Child where Mother began working as a dispatcher with Ralls County Emergency Services. Mother testified she made this decision unilaterally. Currently, Mother lives in Perry, Missouri with her husband in a three-bedroom house. Child has her own room and uses a spare bedroom as a playroom. Mother testified her job as a dispatcher requires her to live in Ralls County.

         In October 2014, the parties began exercising an alternating week custody schedule whereby each party would have Child during his and her "short" work weeks so that each party could maximize their time with Child. Mother works from 6 a.m. to 6 p.m. two days one week and five days the following week, and has every other weekend off. Father works from 6 p.m. to 6 a.m. three days one week and four days the following week.

         The trial court found the parties maintained this custody schedule until Mother married in mid-October 2015. At that time, Mother informed Father the visitation schedule had ended and she would not allow Father any custody of Child until Father agreed to exercise physical custody only on alternating weekends. Father refused to agree to Mother's terms, so Mother denied Father all visitation between mid-October 2015 and March 23, 2016, absent a single two-hour visit at a fast food restaurant in late October 2015. At trial, Mother admitted to knowingly alienating Child from Father for five months by denying Father's repeated requests for custody or visitation. Mother asserted she did so because Father threatened to keep Child from her - a claim Father denied - but admitted Father had never withheld Child from her at any time since Child was born.

         Father lives in Mexico, Missouri with his mother, sister, girlfriend, and five-month-old son. When Child is with Father, she sleeps in her own room next to Father and his girlfriend's room. Father usually sleeps from 11:00 a.m. to 4:00 p.m. on the days he works. When in his custody, Father provides for Child's care except when working or sleeping, at which time Father's mother or sister takes care of Child. When together, Father and Child spend their time doing things as a family and visiting extended family in the area. Father and his girlfriend have been in a relationship since January 2015, and Father testified Child and his girlfriend are familiar with each other and were beginning to build a great relationship. Father stated his son was born in November 2015 and he would like his children to be raised together. Child has never met her younger brother due to Mother's refusal to allow Father custody or visitation. Mother testified it bothered her "a bit" that Child has never met her younger brother.

         Father presented evidence Mother's husband was convicted of driving while intoxicated in 2014 and was arrested for driving without a valid license in 2015. Father testified, based on information he received from Mother, that Mother's husband transports Child without being legally licensed to drive.

         Father requested joint legal and physical custody, recommended the parties continue their alternating week custody schedule, and requested he be named the primary physical custodian for mailing and educational purposes. Father testified he would like Child to attend Mexico public schools in Audrain County and she could start kindergarten in August 2018.

         At trial, Mother asserted Father only exercised visitation on alternating weekends for the majority of Child's life and the parties only very briefly had an alternating week custody schedule. Mother testified they discontinued this schedule because Child did not adjust well to the arrangement.

         Mother requested sole legal and physical custody, and her residence be designated as Child's address for mailing and educational purposes, asserting Child had always lived with her and she has always been the primary caregiver and decision-maker for Child. Mother proposed Father have custody on alternating weekends, which Mother testified was more time than Father ever had with Child. Mother maintained Father had never been involved or interested in taking care of or making decisions for Child, and that she could not think of a single decision regarding Child they had ever made together. Mother testified the parties lived together as a family for only two weeks, and that Father and his family members lied in their trial testimony indicating the parties lived together off and on for almost a year and half after Child was born.

          Following the submission of the evidence, the trial court entered a temporary order reestablishing the alternating week custody schedule and ordering Mother to deliver Child to Father the next day. On May 19, 2016, the trial court issued its Judgment, declaring Father's paternity of Child and awarding the parties joint legal and physical custody. The Judgment and incorporated parenting plan designated Father as Child's residential parent for mailing and educational purposes, and provided an alternating week custody schedule until Child begins kindergarten. Once Child starts school, primary custodial placement would vest in Father with Mother receiving custody on alternating weekends. The court ordered the current alternating week physical custody schedule remain unchanged in the event Mother relocated within Child's school district in Audrain County. The court ordered the parties to discuss and attempt to agree in making decisions for Child but if they could not agree, Father would have final decision-making authority. The court ordered Father to pay Mother $18 in monthly child support and ordered Mother to pay Father $4, 000 toward his attorney's fees. This appeal follows. Additional facts will be discussed as relevant to the issues on appeal.

         Points Relied On

         In her first point on appeal, Mother argues the trial court erred in allocating physical custody time equally between the parties because the award is unsupported by substantial evidence and is based upon a misapplication of law, in that joint physical custody does not require an equal amount of time with each parent; such a custody schedule is only justified in an exceptional case, not as a default; and there was no demonstration the custody schedule is in Child's best interest.

         In her second point on appeal, Mother contends the trial court misapplied the law by requiring her to relocate to Audrain County before August 2018 to avoid constriction of her physical custody time, in that the trial court does not have the power to confine a parent's residence to a particular area and the provision creates a conditional judgment by attempting to provide for automatic modification of the physical custody schedule if Mother fails to comply with the court's mandate.

         In her third point on appeal, Mother asserts the trial court erred in awarding the parties joint legal custody of Child because the award is not based upon substantial evidence and constitutes a misapplication of law in that the award, which bestows upon Father the ability to resolve all disputes between the parties, is a de facto award of sole legal custody and there was no justification to ...

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