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Meseberg v. Meseberg

Court of Appeals of Missouri, Western District, First Division

June 25, 2019

TARY MESEBERG (NKA VANDERPOOL), Respondent,
v.
STEVEN LEE MESEBERG, Appellant.

          Appeal from the Circuit Court of Caldwell County, Missouri The Honorable J. Bartley Spear, Jr., Judge

          Before: Victor C. Howard, Presiding Judge, Lisa White Hardwick, Judge and Gary D. Witt, Judge

          OPINION

          Gary D. Witt, Judge

         Steven Meseberg ("Father") appeals the judgment from the Circuit Court of Caldwell County, Missouri denying his motion to modify and granting in part Tary Meseberg's ("Mother") cross-motion to modify. Father argues that the motion court abused its discretion in giving Mother sole legal custody of their minor child ("Daughter") because it was against the weight of the evidence. Father argues that once joint legal custody has been granted, Missouri law only allows a court to modify custody to grant sole legal custody to the parent that is more likely to allow the child to have frequent, continuing, and meaningful contact with the other parent. Father argues that for the court to determine that Mother was the parent more likely to allow Daughter frequent, continuing, and meaningful contact with the other parent was against the overwhelming weight of the evidence and the court should have granted Father sole legal custody. We affirm.

         Statement of Facts

         This case has a long and tortured history. Father and Mother were married in January 2004, the marriage was dissolved in November 2007 and the dissolution judgment was entered March 2008. Daughter, born in July of 2005, was the sole child born of the marriage. The original dissolution judgment provided for joint legal and physical custody, with Mother's address being designated for mailing and educational purposes. That judgment also provided Mother "final say on all issues and decisions that cannot be resolved by agreement of the parties."[1] In March 2010 Father filed a motion to modify and for contempt. A trial was held on that motion and the court modified the original dissolution judgment on January 28, 2011 ("2011 Judgment").[2] The custody arrangement provided for in the 2011 Judgment was the subject of the current cross motions to modify.

         Under the 2011 Judgment, the parties were awarded joint legal custody and joint physical custody of Daughter. Mother's address was designated as the address of Daughter for educational and mailing purposes. Each party was awarded specific parenting time with Daughter. As to the final decision making authority regarding Daughter, the 2011 Judgment provided:

3. Confer on Major Issues: The parties will confer with one another in the exercise of the decision making rights, responsibilities and authority and have an equal voice on issues regarding said child's training, education and rearing, including, without limitation: the choice or change of school, college or vocational training, major summer activity programs, music, art, dance or other cultural lessons, child care providers, psychological or psychiatric treatment or counseling, doctors, surgeons and all other material decisions affecting the health, education or welfare of said child. However, in the event that the parties cannot agree, the Petitioner shall have the discretion to make the final decision regarding said issues.

(emphasis added).

         Mother resides in Braymer, Missouri and Father resides in Cameron, Missouri. Daughter has always attended the school district in Braymer. Father was ordered to pay child support to Mother in the presumed amount pursuant to the child support guidelines under Rule 88 and Form 14 of $444 per month.

         In the 2011 judgment, Mother was also found in contempt for willfully disobeying the court's lawfully issued orders in these respects:

She did not confer with [Father] on material decisions affecting the child's training, education, and rearing; she called [Father] an abusive name in the presence of the child; she did not notify [Father] of her part time employment at the McDonalds of Chillicothe; and she did not participate in an anger control program. [Mother] did not in so doing, however, unreasonably deny or interfere with [Father]'s custody.

         As a result of the finding of contempt, Mother was required to participate in counseling and an anger control program.

         In May 2015, following Daughter's appointment with counselor Lesley Johnson ("Johnson"), Johnson made a hotline call to Children's Division because she was concerned about Daughter reporting that Father sometimes slept in the same bed as Daughter. On May 13, 2015, Mother filed for a child order of protection, made a police report against Father and refused to allow Father to have any parenting time with Daughter. A forensic interview was conducted with Daughter. Father was also interviewed by the Children's Division.

         Following an investigation the Children's Division determined the allegations against Father were unsubstantiated. Mother was informed of this determination. Mother continued to refuse to allow Farther to see Daughter for five months while the child protection order was still pending but before the final hearing on it.

         May 19, 2015, Father filed a motion to modify seeking the court to modify the parties' custody and support of Daughter. Father sought sole legal and sole physical custody of Daughter, with his address designated as Daughter's for educational and mailing purposes. Mother filed a cross-motion to modify requesting sole legal and sole physical custody of Daughter. A Guardian ad Litem ("GAL") was appointed to represent Daughter's interests.

         On June 5, 2015, Father filed a family access motion because of Mother's continued refusal to allow Father to see Daughter during his usual parenting time after the hotline call to Children's Division. In October 2015, the court held a hearing on Father's family access motion. The court took the matter under advisement at that time and later indicated it would defer ruling on the family access motion until the cross motions to modify were ready for disposition.[3] On October 30, 2015, the court consolidated Father's family access motion with the modification case and ordered the parties' to continue counseling and Father to have unsupervised parenting time during the day on every other Saturday, on Thanksgiving, and on Christmas.

         On October 2016, Mother moved the court to order a psychological evaluation of Father and requested the court to appoint Dr. Aileen Utley ("Dr. Utley") to conduct the evaluation. The court sustained Mother's motion but ordered both parties to have a parenting assessment performed by Dr. Utley. Dr. Utley conducted a parental assessment of Mother in December 2016 and of Father in February 2017. Dr. Utley wrote a report about each, which were admitted into evidence.

         The court held a trial over three days in December 2017.

         The court interviewed Daughter in chambers. Daughter told the court that she would like to stay in the Braymer school district. She also said she would like to spend more time with her dad because the weekend is not very much time.

         The evidence at trial established that there was a complete lack of cooperation or communication between Father and Mother. The communication they did have was acrimonious with both focused on themselves and not on the best interests of Daughter. The parenting plan in effect did not provide for specific hours for Father's parenting time during holidays, so Mother unilaterally determined when Father was allowed to see Daughter on those holidays. Mother did not keep Father informed as to significant events in Daughter's life. In September 2011 Mother informed Father that Daughter was to be baptized the following Sunday even though she had been aware this was going to happen for some time. Mother consistently signed Daughter up for extracurricular activities that conflicted with Father's parenting time without consulting him or informing him. In May 2013, Mother signed Daughter up for summer school and did not inform Father until two weeks before it was to begin, one week of which was during one of his weeks of uninterrupted parenting time that summer. On other occasions Mother signed Daughter up for other activities without his knowledge that interfered with his parenting time and informed him by e-mail after Daughter was committed to the activity. Father objected to Daughter being involved in any extracurricular activities that might interfere with his parenting time.

         Father testified that he was currently not interested in relocating to Braymer and would like to have primary custody and change Daughter's school and community to Cameron. Father testified Daughter would have opportunities to join extracurricular activities in Cameron.

         Mother testified that after the hotline call to the Children's Division she noticed behavioral changes in Daughter around Christmas 2014. Mother testified that Daughter started not wanting to go to Father's home and would start getting anxious beginning on Wednesday before his weekend parting time. Mother testified that Daughter lost seven pounds the winter of 2015. In April 2015, Mother took Daughter to see Dr. Dorothy Milburn ("Dr. Milburn") for a respiratory infection. Mother testified that during the appointment Daughter told Dr. Milburn she was having some difficulties with her Father and had anxiety about going to see Father. Dr. Milburn's notes showed that Daughter had anxiety and was afraid of Father.

         Father testified that prior to the hotline call, he was never made aware of Daughter's behavior or her not wanting to go to his house. In regard to the allegation that he slept in the same bed with Daughter, Father testified that he read Daughter bedtime stories and as soon as Daughter fell asleep he would go to his room, which he shared with his wife. Father's wife also refuted any allegation that Father ever slept in the same bed with daughter or had engaged in any inappropriate behavior with Daughter.

         Johnson testified regarding her counseling appointments with Daughter. Johnson testified that Daughter told her that Father would get in bed with her, wrap his arms around her so she could not move, and that she felt something hard on her back but was too frightened to move. Daughter told her that she would wait till Father was asleep and then go sleep in a chair in the living room. Daughter told her that she would try to wake up before Father woke up and get back in bed because ...


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