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J.F.H. v. S.L.S.

Court of Appeals of Missouri, Eastern District, Fifth Division

December 26, 2017

J.F.H., Appellant,
v.
S.L.S., Respondent.

         Appeal from the Circuit Court of Cape Girardeau County 08CG-DR00494-01 Honorable Benjamin F. Lewis

          OPINION

          JAMES M. DOWD, CHIEF JUDGE.

         This case concerns the legal and physical custody of K.N.H., the daughter of appellant J.F.H. ("Father") and respondent S.L.S. ("Mother"). Father appeals from the judgment of the Circuit Court of Cape Girardeau County which modified the legal and physical custody arrangements set forth in the court's 2009 judgment. Father claims that there was insufficient evidence of a substantial change in circumstances to justify terminating the joint legal custody and the joint physical custody arrangements ordered in 2009, and insufficient evidence that these modifications were necessary to serve Child's best interests. While we find that the court did not err in modifying the 2009 judgment by awarding Mother sole legal custody, we are firmly convinced that the court's termination of joint physical custody is erroneous and is against Child's best interests. Therefore, the judgment is affirmed in part and reversed in part.

         Factual and Procedural Background

         On March 2, 2009, the court entered its judgment which established the paternity of Child and provided for Child's custody (the "custody decree") by awarding Mother and Father joint legal and physical custody, with Mother's address serving as Child's for mailing and educational purposes. The parenting plan adopted pursuant to the judgment provided for a repeating two-week schedule of roughly equal physical custody periods. At the time the judgment was entered in 2009, Father lived and worked in Cape Girardeau, and Mother worked in Cape Girardeau though she lived in Marble Hill, in Bollinger County.

         The disagreement giving rise to this case centers on driving distances and times between Marble Hill and Cape Girardeau now that Child has reached school age. On Father's custody days that are also school days, he drives Child over 30 miles to Marble Hill, drives about the same distance back to his workplace in Cape Girardeau, drives back to Marble Hill to pick Child up after school, and then drives her back to Cape Girardeau. Father unsuccessfully attempted to make arrangements with Marble Hill's Woodland school district to have Child ride the bus. Father testified that he lost a job because of the amount of time he missed in order to take Child to school in Marble Hill, and he was concerned about the amount of time Child was spending on the road.

         Citing the latter concern, on August 17, 2015, Father filed a motion to modify the custody decree, requesting that joint legal custody and joint physical custody be maintained, but that Child assume Father's address for educational purposes so that she could be placed in school in Cape Girardeau. He also asked that his parenting time during the school year consist of all weekdays and alternating weekends.

         Mother opposed Father's motion and filed her own motion to modify. For her part, she asked that her parenting time during the school year consist of all weekdays and alternating weekends. Unlike Father, however, Mother sought termination of the joint custody arrangement and requested both sole legal and sole physical custody of Child. Mother claimed that these modifications were necessary to serve Child's best interests because Father had twice enrolled Child in schools in Cape Girardeau without Mother's approval. Mother also argued that Father's motion to modify was motivated solely by self-interest to reduce his time on the road, and that she and Father no longer had the ability or willingness to communicate and cooperate in making parenting decisions.

         On September 7, 2016, the trial court entered its judgment which modified the decree by granting Mother sole legal and sole physical custody, and by reducing Father's physical custody time during the school year to alternating weekends only. The court found that Mother and Father are no longer able to cooperate with each other in making parenting decisions; that due to the distance Father and Child must travel, the decree's custody schedule has become unworkable; and that granting Father alternating weekends with Child is the best plan for school-year parenting time because it offers Father "reasonable" custody time but does not subject Child to extensive travel and removes the financial burden of providing that transportation.

         Further facts, as relevant, are provided below. This appeal follows.

         Standard of Review

         The applicable standard of review requires this court to affirm the trial court's judgment unless it is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Morgan v. Morgan, 497 S.W.3d 359, 363 (Mo.App.E.D. 2016) (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976)). The trial court is in a superior position to weigh all the evidence and render a judgment based upon that evidence; therefore, the judgment is to be affirmed under any reasonable theory supported by the evidence. Id. (citing Love v. Love, 75 S.W.3d 747, 754 (Mo.App.W.D. 2002)). The trial court's determination of custody will not be disturbed on appeal unless this Court is firmly convinced the determination is erroneous and is against the child's best interests. Id. (citing Bather v. Bather, 170 S.W.3d 487, 492 (Mo.App.W.D. 2005)).

         Discussion

         In Missouri, two distinct statutes govern the modification of prior parenting arrangements. Id. (citing Russell v. Russell,210 S.W.3d 191, 196 (Mo.banc 2007); §§ 452.410, 452.400.2[1]). Section 452.410 governs the modification of child custody decrees. Id. (citing Frantz v. Frantz,488 S.W.3d 167, 175 (Mo.App.E.D. 2016)). Generally, a modification of a "child custody decree" can reasonably be interpreted to apply to those instances where a court is requested to modify the "custody" designation. Id. (citing Prach v. Westberg, 455 S.W.3d 513, 516 (Mo.App.W.D. 2015)). A "custody" ...


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