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Wigglesworth v. Wigglesworth

Court of Appeals of Missouri, Eastern District, Fourth Division

April 30, 2019


          Appeal from the Circuit Court of St. Louis County Honorable John R. Essner.



         Marie W. Wigglesworth ("Mother") appeals from the trial court's judgment ("2018 Modification Judgment") awarding custody of her minor child ("Daughter") to Sean C. Wigglesworth ("Father"). Mother raises four points on appeal. In Point One, Mother contends that the trial court erred in modifying custody from the preceding consent judgment (the "2014 Judgment") because res judicata barred the trial court from finding a change in circumstance resulting from the reversal of the Children's Division's findings that Father abused Daughter. Because the reversal of the Children's Division's findings regarding the alleged abuse occurred before Father consented to the entry of the 2014 Judgment, the trial court erred in treating the reversal of the abuse findings as a change in the circumstance warranting modification of the 2014 Judgment under Section 452.410.1, [1] Further, the record firmly suggests that the trial court treated Mother's adherence to the restrictive visitation provisions of the 2014 Judgment as an unwillingness to co-parent and obtain Father's input on legal custody decisions, each of which the trial court misconstrued as violations of the 2014 Judgment. The record fails to persuade us that the trial court found any substantial change of circumstance to support the change of custody effected by the 2018 Modification Judgment. Accordingly, we remand this matter to the trial court to reconsider whether Father has met his burden under Section 452.410.1 to prove the substantial change in circumstance to warrant custody modification.

         Factual and Procedural History

         Mother and Father divorced in 2011. In the original judgment (the "2011 Judgment"), the trial court awarded joint legal custody of Daughter, then two-years old, and awarded sole physical custody to Mother with alternating weekend visitation to Father.

         In 2013, the Warren County Children's Division ("Children's Division") was made aware of allegations that Father had sexually abused Daughter. After investigating the allegations, an order of child protection was entered against Father based upon the Children's Division's findings that Father had abused Daughter. Father and Mother each moved to modify the 2011 Judgment. At Father's request, the trial court consolidated the child protection case and the modification case. During the modification proceedings, Father sought review of the Children's Division's findings by the Child Abuse and Neglect Review Board ("CANRB"). On April 21, 2014, the CANRB reversed the Children's Division's findings of abuse by Father.

         Father consented to the entry of a consent judgment issued on July 22, 2014. The 2014 Judgment stipulated to the termination of the order of child protection, awarded Mother sole physical and legal custody, and instituted a highly restrictive parenting plan. In particular, the 2014 Judgment provided that Daughter should never be alone with Father and restricted Father to supervised visitation with numerous constraints on physical contact. The 2014 Judgment obligated Mother to notify Father of any public activities at school and permitted Father to attend such public events. Under the provisions for legal custody, the 2014 Judgment gave Mother final authority on all issues affecting the growth and development of Daughter, including-but not limited to-choice of religious upbringing, child care and health care providers, school, special tutoring, extracurricular activities, travel, employment, purchase or operation of a motor vehicle, contraception and sex education, legal decisions, as well as non-emergency medical, dental, psychological, and psychiatric treatment and counseling. The 2014 Judgment required Mother to inform Father of changes to the above legal custody issues. The 2014 Judgment directed Mother to consult Father and seek his input only for major changes, such as changing religions, electing to home school, or authorizing elective surgery. The 2014 Judgment additionally required Father to pay periodic child support and expenses for Daughter's counseling. Father did not appeal the 2014 Judgment.

         On November 14, 2016, Father moved to modify the 2014 Judgment. Father sought joint legal and physical custody, modification of the parenting plan, and a reduction in child support. During the modification proceedings, the trial court issued a series of interim orders in which it appointed a guardian ad litem ("GAL") for Daughter, ordered Mother to arrange counseling for Daughter, and expanded Father's visitation and custody scheduling with Daughter.

         On December 11, 2017, Father's motion to modify was heard before the family court Commissioner. The GAL participated in the hearing by cross-examining both Father and Mother. Evidence adduced at the hearing included Mother's relocation with Daughter due to a job change to Chamois, Missouri in September 2014. Mother did not notify Father sixty days in advance as required by the 2014 Judgment. Chamois is located several hours from St. Louis County, and the distance brought challenges to Father's ability to visit Daughter. During the hearing, Mother cross-examined Father regarding his consent to the entry of the 2014 Judgment after CANRB had reversed the abuse findings against him. The Commissioner informed the parties that the 2014 Judgment would be taken at its face as a consent judgment pursuant to the record, and directed the parties to address whether a change in circumstances occurred after the 2014 Judgment to warrant custody modification.

         After the hearing, the GAL filed a proposed parenting plan recommending joint legal and physical custody as well as transferring residential custody of Daughter to Father and giving Mother alternate weekends. Mother also submitted a parenting plan, which proposed joint legal and physical custody but sought to maintain Daughter's residential custody with Mother.

         The trial court thereafter approved and adopted the Commissioner's findings and recommendations in the 2018 Modification Judgment. The 2018 Modification Judgment adopted the GAL's proposed parenting plan transferring Daughter's residential custody to Father and giving Mother alternating weekends during the school year. The trial court found there was little support for the restrictive supervised visitation set forth in the 2014 Judgment given the reversal of the abuse findings. The trial court also found that Mother relocated without proper notification and obstructed Father's attempts to visit Daughter in spite of the reversal of the abuse findings. The trial court further concluded Mother failed to demonstrate a willingness to co-parent and obtain Father's input on legal custody decisions-in particular, allowing Daughter to purchase a phone with which to play games and obtaining additional math tutoring for Daughter. Lastly, the trial court found Mother did not promptly comply with the interim orders to enroll Daughter in counseling.

         Mother moved for a hearing before a family court judge and to reopen evidence on the basis of post-trial conduct by Father relevant to the custody award. The trial court denied both Mother's motions. Mother now appeals the 2018 Modification Judgment.

         Points ...

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