Court of Appeals of Missouri, Western District, Third Division
from the Circuit Court of Clay County, Missouri Honorable
David Paul Chamberlain, Judge
Before: Alok Ahuja, P.J., Thomas H. Newton, and Cynthia L.
H. Newton, Judge
Jeffrey Traviss King appeals a Clay County Circuit Court
judgment granting both him and his ex-wife joint legal and
joint physical custody of the parties' minor children,
designating the Mother's address as the children's
address for mailing and educational purposes, and granting
the parties a joint parenting schedule.
Ms. King were married on April 11, 2009, in Jackson County,
Missouri. The parties owned a home together in the North
Kansas City school district. During the marriage, the couple
had two children. The parties separated in March 2015 and Ms.
King filed for divorce on May 20, 2015. When the couple
separated, Ms. King moved into a new residence and the couple
devised a parenting schedule. Mr. King had the children on
Mondays and Tuesdays, Ms. King took the children on
Wednesdays and Thursdays, and the parties alternated
trial, the parties submitted their proposed parenting plans.
Ms. King presented a plan for joint legal and physical
custody. Her proposed plan for Mr. King included one evening
a week from 5:30 p.m. to 8:00 p.m., and alternating weekends
from Friday at 5:30 p.m. to Monday at 8:00 a.m. Mr.
King's parenting plan provided for joint physical and
legal custody. Mr. King proposed that the children have
parenting time with Ms. King on alternate weekends from
Friday at 6:00 p.m. until Monday at 8:00 a.m., and an
overnight visitation every Wednesday from after school until
8:00 a.m. on Thursday. Both parties requested that their
address to be the children's designated address, and both
plans allowed for split time in the summer and an equal
division of holidays.
court rejected both parenting plans and entered one of its
own. In support of its plan, the court considered the factors
set forth in Section 452.375. The court found that none of the
factors favored either parent, with the exception of Factor
2, which favored Ms. King. The court's parenting plan provided
the parties joint physical and legal custody with Ms.
King's address listed as the children's address, and
ordered the children to reside with Ms. King except for the
times designated by the parenting plan. Mr. King was granted
parenting time every Wednesday from 5:30 p.m. to Thursday
morning and every other weekend from Friday at 5:30 p.m. to
Monday at 8:00 a.m. The holidays and summers were divided
evenly. Mr. King filed a timely motion to amend judgment
and/or motion for a new trial. The motion was denied, and
this appeal followed.
King relies on two points: (1) the trial court misapplied the
law when it "essentially" awarded Ms. King sole
physical custody by prescribing a parenting plan that did not
provide Mr. King with "frequent, continuing, and
meaningful contact with the minor children"; and (2) the
trial court's parenting plan was not supported by
substantial or competent evidence and was against the weight
of the evidence.
Court must affirm the trial court's judgment, unless:
"there is no substantial evidence to support it, unless
it is against the weight of the evidence, unless it
erroneously declares the law, or unless it erroneously
applies the law." Murphy v. Carron, 536 S.W.2d
30, 32 (Mo. 1976). "In asssessing the sufficiency of
evidence, we examine the evidence and its reasonable
inferences in the light most favorable to the judgment, and
we disregard all evidence and inferences to the
contrary." Cox v. Cox, 504 S.W.3d 212, 216-17
(Mo. App. W.D. 2016).
physical custody is defined as "significant, but not
necessarily equal, periods of time during which a child
resides with or is under the care and supervision of each of
the parents." § 452.375.3. Joint physical custody
assures that the child gets "frequent, continuing and
meaningful contact with both parents." Id.
"Equal time being spent with each parent is not required
to find a joint physical custody arrangement." Love
v. Love, 75 S.W.3d 747, 765 (Mo. App. W.D. 2002).
Although courts may want to split time evenly, it is not
always in the child's best interest to do so.
King relies principally on the analysis provided in
Morgan v. Morgan, 497 S.W.3d 359 (Mo. App. E.D.
2016). In Morgan, the court reviewed an appeal from
the modification of the custody agreement and determined that
the modification court had awarded the mother sole physical
custody because the Father received only two overnights and
one evening every two weeks. Id. at 370. The court
ultimately held that two overnight visits every two weeks was
not significant contact and, therefore, concluded that the
custody agreement had been for sole physical custody and not
joint. Id. at 370-71.
present case is unlike Morgan because Mr. King
receives five overnight visits with his children every two
weeks while the father in Morgan was receiving only
two overnight visits every two weeks. Mr. King's situation is
more akin to LaRocca v. LaRocca, 135 S.W.3d 522 (Mo.
App. E.D. 2004). In LaRocca, the mother appealed the
trial court's designation of the father as the
"primary physical custodian." Id. at
524-25. Mother argued that she had the children for six
overnights every two weeks and had more time during the
summer, and, was therefore, entitled to joint physical
custody. Id. at 525. The court designated that
parenting plan as joint custody "because the Wife was
awarded care of the children for significant periods totaling
approximately 43 percent of the time and a higher percentage
of time in the summer." Id. at 526.
King's parenting time differs only slightly from the
mother in LaRocca; in fact she received only one
additional day with her children. It is also worth noting
that the mother in LaRocca had her children less
than 50 percent of the time and was still awarded joint
custody. This Court finds that the trial court did not
misapply Section 452.375 and further finds that the parenting
plan provides for ...