Court of Appeals of Missouri, Eastern District, Fifth Division
from the Circuit Court of Cape Girardeau County
08CG-DR00494-01 Honorable Benjamin F. Lewis
M. DOWD, CHIEF JUDGE.
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.
and Procedural Background
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.
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.
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.
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
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.
facts, as relevant, are provided below. This appeal follows.
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.
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). 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"