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Moyers v. Lindenbusch

Court of Appeals of Missouri, Western District, First Division

October 24, 2017


         Appeal from the Circuit Court of Cole County, Missouri The Honorable Jon E. Beetem, Judge

          Before Cynthia L. Martin, Presiding Judge, and James Edward Welsh and Karen King Mitchell, Judges.


         Melissa A. Moyers (Mother) appeals the judgment of the Circuit Court of Cole County, Missouri, granting the Motion to Modify Judgment and Decree of Dissolution filed by Martin A. Lindenbusch (Father). The trial court modified the original decree by awarding sole legal custody and primary placement of the parties' three minor children to Father but leaving the parents with joint physical custody of the children. On appeal, Mother claims the trial court erred: (1) in determining that there was substantial evidence on which to conclude that the modification was in the best interests of the children and (2) in finding that Mother was engaged in a "polyamorous or polygamous"[1] relationship. We affirm.

         Background [2]

         The parties married on May 17, 2003, in Cole County, Missouri. Three children were born to the marriage: Andrew Xavier Lindenbusch, born April 28, 2004; Meghan Elizabeth Lindenbusch, born December 21, 2005; and Annika Elise Lindenbusch, born May 22, 2008. In 2012, the parties filed cross-petitions for dissolution of marriage in the Circuit Court of Cole County, Missouri. On February 20, 2013, the trial court held a hearing on the petitions. Following the hearing, the court made a docket entry dissolving the parties' marriage and instructing the parties to submit proposed judgments and parenting plans. While the case was pending, Mother filed a Motion to Re-Open the Record. The court granted the motion and set the matter for a second hearing. The parties subsequently notified the court that they had reached an agreement resolving the disputed issues.

         On June 14, 2013, the trial court entered a Judgment and Decree of Dissolution of Marriage, awarding the parties joint legal and physical custody of the children in accordance with the parties' proposed Joint Parenting Plan, which the court found to be in the best interests of the children. According to the Joint Parenting Plan, Mother was permitted to relocate the children to Colorado, and Father was granted specific periods of parenting time during holiday breaks and summers.

         Mother and the children moved to Rye, Colorado, in July 2013. There, they lived with Kenneth Moyers (Ken), his wife Stephanie Moyers (Stephanie), and Ken and Stephanie's three children.[3] Ken and Stephanie divorced in September 2013, although they continued to share the same house. Mother and Ken were married in October 2013, and they later had a son together.

         By letter dated April 15, 2016, Mother notified Father of her intention to relocate the children to the Austin, Texas area on or around June 15, 2016. Mother identified Ken's desire to change employment as the primary reason for the move, although she noted that, as of the date of the letter, he had not yet found employment. Mother subsequently sent Father a letter, dated May 12, 2016, in which she provided her new residential address in Texas, effective June 1, 2016.

         On May 31, 2016, Father filed a Motion to Prohibit Petitioner's Proposed Relocation of the Residence of the Minor Children and a Motion to Modify Custody, which Father later amended on June 7, 2016. In his Motion, Father requested sole legal and physical custody of the children with reasonable rights of visitation in favor of Mother. On October 4, 2016, Father moved for the appointment of a guardian ad litem (GAL), which the trial court granted.

         On January 25, 2017, the trial court conducted a bench trial, which lasted the better part of a day and included testimony from Mother, Father, Ken, and the GAL. Father intended to remain in the Jefferson City area and re-enroll the children in St. Joseph Catholic School in Jefferson City, which they had attended before the parties' dissolution. Both Father and Mother have extended family in Missouri, and Father indicated that he would allow the children to visit Mother's family.

         Around the time of the dissolution, Father lost his job due to a DWI conviction. Father agreed to allow Mother to relocate to Colorado with the children because she represented that she had received a written job offer from Solo Sky Ranch in Rye, Colorado, at a yearly salary of $60, 000. But Mother was never actually employed by Solo Sky Ranch, as there was no job for her there. Ken owns Solo Sky Ranch, and Mother's motivation for moving to Colorado was to marry him. The written job offer Mother received was signed by Stephanie, using her middle and maiden name. According to Ken, the job offer was "one piece of the puzzle" that would allow Mother to relocate to Colorado with the children.

         After moving to Colorado, Mother interfered with Father's attempts to communicate with the children. Mother refused to load Skype on her son's iPad so he could communicate with Father; her stated reason being that she had paid for the iPad. Mother cancelled her son's email account when she discovered that Father was communicating with the son via e-mail. And Mother often did not answer her cell phone when Father called to speak to the children. On at least one occasion, Mother recorded a telephone call between Father and the children, and on other occasions she had the children talk to Father on speaker phone so she could listen to their conversations. She also interfered with Father's ability to participate meaningfully in one child's First Communion. Ken threatened to call the police if Father showed up at the house to see the children. Mother denied Father's request to visit with the children in Colorado on at least one occasion, and she interfered with his plans to spend time with the children in Missouri on another.

         Mother made it difficult for the parties to co-parent. She refused to cooperate with Father to facilitate exchanges of the children, including dropping the children off a day early without prior notice to Father, demanding he return the children a day early, and refusing to allow Father to change the children's return flights to a more convenient time. Father learned about injuries to two of the children from them, and the parties disagreed about the course of treatment. Mother decided to stop raising the children in the Catholic faith, as mandated by the parties' Joint Parenting Plan, without discussing the issue with Father. Mother refused to allow Father to obtain passports for the children so he could travel out of the country with them. The parties were unable to reach an agreement on whether their son should repeat third grade and on whether the children should attend therapy.

         Mother was not honest with Father regarding issues affecting the children. In addition to the fabricated job offer in Colorado, Mother misled Father about the timing of her marriage to Ken. Though she told Father she remarried in July 2013, she and Ken did not actually marry until October 2013. Mother also was not honest with Father about the nature of an out-of-state funeral she attended with the children. Mother told Father the funeral was for Ken's grandmother, when, in fact, the service was for Stephanie's grandmother. During her testimony, Mother denied that Ken had told her children to call him "father, " but when the GAL had asked her about that prior to trial, she had admitted it was true. The real reason for the move to Texas was Stephanie's, not Ken's, employment there. Ken did not secure employment in Texas until November 2016, four months after the move.

         There was tension between Mother and one of the children. The children's home in Texas has a security camera in one of the main living areas that Mother had used to monitor the children, especially Andrew, her oldest child. Andrew objected to being monitored and would turn the camera toward the wall so he was no longer visible. Father did not report any problems with Andrew, and the GAL found Andrew to be the most credible of the three children.

         Mother admitted that she and Father disagreed more often than they agreed, that her relationship with Father has "gotten worse, " and that she would consider split custody only if Father "became a better person." Mother acknowledged that one of her children viewed the parties as two tornadoes "on a collision course because everybody, including them, is a collateral victim of consequence to that." She admitted that joint legal custody was "not doable."

         The GAL was concerned that there is an "atmosphere of acceptable deception" in Mother's home insofar as Mother says what she needs to say to get what she wants, and that atmosphere is a threat to the children. He found that at least two of the children believe that Mother, Ken, and Stephanie are engaged in "consensual cheating." The GAL concluded that the current joint legal custody arrangement was not working due to the parties' contemptuous relationship and their inability to communicate about the children. He also noted that the children did not want a change in physical custody.

         On March 7, 2017, the trial court issued its Judgment and Decree of Modification from which Mother appeals. The Judgment includes findings of fact and conclusions of law. Based on its findings, the court granted Father sole legal custody and continued the parties' joint physical custody of the children pursuant to a new parenting plan (Plan) attached to, and incorporated in, the Judgment, concluding that the Plan is in the best interests of the children.[4] Under the Plan, the children are to reside with Father during the school year and all other times not specifically set aside to Mother. The Plan grants Mother custody every summer break from June 1 until August 1, every Christmas break, and every Spring break. In the event Mother relocates to within 30 miles of Father's residence, the Plan provides that the parties alternate custody of the children on a week-to-week basis. Mother filed this timely appeal.

         Standard ...

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