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Gilbert v. Koparan

Court of Appeals of Missouri, Eastern District, First Division

September 17, 2019

CRAIG A. GILBERT, Respondent/Cross-Appellant,
v.
AYSIN KOPARAN, Appellant/Cross-Respondent.

          Appeal from the Circuit Court of St. Louis County Hon. Sandra Farragut-Hemphill

          ROBERT G. DOWD, JR., JUDGE

         Aysin Koparan ("Mother") appeals from the judgment entered on the motion of Craig Gilbert ("Father") to modify the decree of dissolution and for attorneys' fees among other various cross-motions filed by the parties. Father cross-appeals. We affirm.

         Mother and Father were divorced on April 20, 2012. Pursuant to the dissolution of marriage, Mother and Father were awarded joint physical and legal custody of their two minor children. After continued litigation following dissolution, on October 24, 2016, a consent judgment on child custody was entered, whereby Mother and Father continued to share joint legal and physical custody. On December 14, 2016, Father filed a third amended motion to modify the dissolution decree, seeking sole legal and physical custody of the children. Father also obtained a temporary restraining order the same day pursuant to which Father was granted temporary physical custody of the children subject to Mother's rights of reasonable custody as well as sole legal custody with regard to medical decisions for the children. Following trial, the trial court awarded Father sole legal custody and joint physical custody with Mother. The parties went from approximately equal custody time under the previous judgment to Father now having custody 8 out of every 14 days. The trial court awarded Mother $1, 104 in monthly child support and also ordered Mother to pay Father $52, 411.25 in attorneys' fees and $2, 115 in costs. This appeal and cross-appeal follows.

         On appeal, Mother claims the trial court erred in five ways: (1) in modifying child custody because there was no substantial evidence of new circumstances since the October 2016 consent judgment demonstrating a substantial change of such a significant nature that it directly affected the welfare of the children, (2) in misapplying the law in modifying child custody because it was plain error to use the fact that Mother exercised her right to access the legal system as a basis to find a substantial change in circumstances, (3) in misapplying the law in modifying child custody because the trial court improperly considered events and circumstances from before the prior custody decree in finding a substantial change in circumstances, (4) in allowing psychological expert, Dr. Rick Scott, to testify to inadmissible hearsay evidence and incorporating such evidence into its findings and (5) in ordering Mother to pay $52, 411.25 of Father's attorneys' fees because such an order lacked competent evidence and was based upon an improper determination that changing counsel and seeking court orders was misconduct. In his cross appeal, Father claims the trial court erred and misapplied the law in its use of the Form 14 Guidelines by designating Father as the parent paying support and only giving him a 34% custody adjustment when it awarded Father more days of physical custody than Mother.

         Because Mother's first three points all deal with the trial court's decision to modify custody, we will address them together. We will 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). We give greater deference to the trial court's determination in child custody matters than in other cases. Id. Because the trial court is in a superior position to weigh the evidence and enter a judgment based on that evidence, the judgment is to be affirmed under any reasonable theory supported by the evidence. Id. We will not disturb the trial court's custody determination unless we are firmly convinced it is erroneous and the award is against the child's best interest. Id.

         A party seeking a modification of legal custody must demonstrate: "(a) a substantial change in circumstances of the child or his custodian and (b) if the trial court finds a substantial change of circumstances of the child or his custodian, then the trial court must determine whether a modification is necessary to serve the best interests of the child." Id. at 373 (emphasis in original). Section 452.410 also requires the change in circumstances to be based upon "facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree."

         With respect to a modification of legal custody, "[t]he breakdown in communication and cooperation alone is sufficient to constitute a change of circumstances warranting the modification of legal custody." Morgan, 497 S.W.3d at 373 (internal quotation marks omitted). A modification of legal custody "must be supported by a change in the circumstances of the parents' exercise of such custody-i.e., how they have shared the decision-making rights, responsibilities, and authority relating to the health, education, and welfare of the child." J.F.H. v. S.L.S., 550 S.W.3d 532, 537 (Mo. App. E.D. 2017). Accordingly, we review the record for substantial change in circumstances as to how the parties have shared the decision-making rights, responsibilities and authority relating to the children's health, education and welfare. See id. at 540. "We consider the parties' commonality of beliefs concerning parental decisions, the parties' ability to function as a parental unit in making those decisions and the parties' demonstrated willingness and ability to share the rights and responsibilities of raising their children." Id.

         Here, finding that parental communication, cooperation and shared decision-making between Mother and Father continued to deteriorate after entry of the October 2016 consent judgment and finding that Father demonstrated a substantial change in circumstances such that modification was necessary to serve the children's best interest, the trial court awarded Father sole legal custody. The trial court specifically noted that shortly after the October 2016 consent judgment, Father was out of country on business when he received a message from Mother that one of the children was depressed and Mother wanted to take her to see a psychiatrist right away. Father requested that the therapist already involved in the child's care or a school counselor be contacted first, and he arranged appointments with each of them. Father took the child to the appointments, and Mother did not attend. Father shared with Mother the information he learned at the appointments.

         The trial court then noted events that took place in November 2016, when the parties learned about an incident involving the same child and Father's stepson, which had occurred on a vacation three years earlier. On December 1, 2016, the therapist already involved in the child's care met with the parties to discuss the incident. Father advised Mother and the therapist that the stepson did not reside in his house, and the therapist advised that the incident was minimal and that the parties should not make a big deal out of it. According to details in the temporary restraining order obtained by Father on December 14, 2016, the therapist advised Mother not to file a temporary restraining order and indicated she would hotline the incident to the Division of Family Services but that it would most likely be categorized at the lowest level.

         Despite the advice of the therapist, Mother applied for a temporary restraining order on December 2, 2016, to prevent Father from exercising custody of the children in his home. Mother's proposed temporary restraining order stated that Father "is hereby temporarily restrained, prohibited and enjoined from directly or indirectly exercising visitation with the minor children . . . ." The court rejected this language, and the temporary restraining order instead provided that the stepson was prohibited from having any unsupervised contact with the children until further court order.

         The trial court noted Mother's testimony that she did not believe Father when he told her that the stepson did not live at Father's house and that she did not believe the temporary restraining order sufficiently protected her children. As a result, after obtaining the temporary restraining order and without notice to Father, Mother obtained an ex parte order of protection against the stepson.[1] Then, at around 10:30 p.m. on December 2, 2016, the police arrived at Father's home with a copy of the order of protection. The children were in bed, and the police informed Father the children needed to be removed from the home pursuant to the order. According to the trial court, "Mother continued to orchestrate a custody plan suitable to her." The trial court noted that the next day she sent Father an email chastising him for "unnecessary drama" in response to the police and stated that he could spend time with the children if he did not bring them to his house and stayed in a hotel or with Father's parents for any overnight visits.

         The trial court further noted that shortly thereafter, Mother informed Father that the same child was threatening to harm herself and that Mother was taking her to the hospital. Father was out of town and returned to see the child at the hospital. Even though the stepson was not present, Mother showed the order of protection to hospital emergency room staff which resulted in Father being unable to see the child. Father testified that his attorney arrived with a new order so that the child was permitted to leave the hospital with Father. The trial court also detailed the disagreement between Mother and Father regarding plans for the follow-up treatment for the child once she left the emergency room that day.

         Even limiting our review of the events in this case to the time between the October 2016 consent judgment and the time Father filed his motion to modify on December 14, 2016, as Mother insists we must, [2] we find sufficient evidence to demonstrate a substantial change in Mother's and Father's ability to share the decision-making rights, responsibility and authority relating to the welfare of the children, especially given the deference we give the trial court in custody matters like these. Mother and Father repeatedly disagreed in response to serious events involving the children's health and welfare, and there is no reasonable indication that the parties could operate as a parental unit in response to these serious events. In fact, the evidence indicates the extreme and unilateral measures Mother was willing to take by involving police to remove the children from Father's home at 10:30 at night based upon an order of protection of which Father had no notice and then using the order of protection directed at Father's stepson to keep Father from seeing his child when she was subsequently in the Emergency Room being treated for her psychological issues.

         In addition, the trial court also heard expert testimony from Dr. Scott who found Mother to exhibit prominent traits for paranoid personality and narcissism, an extreme position of not being the problem, high sensitivity to the opinions of others and a significant lack of empathy. The trial court noted Dr. Scott's opinions that Mother holds a grudge about the breakup with Father, which is a motivating factor in her unwillingness to cooperate with him in parental decisions, that Mother's conduct interferes with her ability to share responsibilities with Father and that Mother was trying to interfere with the work of the children's therapist. Father also testified that he did not believe there was anything that could be done to help Mother and Father co-parent, and the trial court, which was in a superior position to weigh the evidence and enter a judgment based on that evidence, specifically determined that since the October 2016 consent judgment, there had been "a breakdown in parental communication and cooperation such that Mother and Father are unable to reach shared parenting decisions." The trial court further found Father more likely to cooperate and involve the other parent in shared decision-making.

         Mother notes that the trial court made lengthy findings regarding issues between the parties predating the October 2016 consent judgment and argues the trial court inappropriately relied on those findings as a basis for its custody modification under Section 452.410. Mother asserts that there was no substantial change in circumstances to warrant modification because the issues between Mother and Father were ongoing and well-known prior to the October 2016 consent judgment. We disagree with Mother. The trial court's inclusion of certain findings in its judgment from events predating the October 2016 consent judgment does not mean those findings formed a basis for the trial court's custody modification. It seems appropriate in a case like this for the trial court to explain the background of the case and establish a baseline from which to demonstrate the substantial change in circumstances. Further, even if we assume without deciding that the trial court relied on events outside the relevant window of time, Missouri law requires us to affirm the judgment under any reasonable theory supported by the evidence. See Morgan, 497 S.W.3d at 363. We find sufficient evidence to support the custody modification even from the narrow window of time we rely on here. See supra footnote 2.

         Mother further argues that trial court improperly considered the fact that she exercised her right to access the legal system in seeking a temporary restraining order and ex parte order of protection as a basis to find a substantial change in circumstances to warrant modification. She claims she should not be discredited for exercising rights fundamental to or granted by our legal system. Again, we need not decide if the trial court improperly considered the fact that Mother exercised her right to access the legal system as a basis for modification because there was sufficient evidence independent of Mother's specific exercise of those legal rights to warrant the modification. While the trial court noted that Mother chose to disregard the child's therapist and pursue both a temporary restraining order and an ex parte order of protection, it also noted that steps were taken without notice to Father and that Mother chose to enforce the order of protection by involving police to remove the children from Father's home at 10:30 p.m. at night after the children were in bed. The evidence surrounding Mother's use of the legal system, not necessarily the fact that she pursued such measures, supported the trial court's judgment in conjunction with the trial court's other findings as noted above. Even if we exclude evidence of Mother's specific use of the legal processes, we are not convinced, firmly or otherwise, that the trial court's custody determination was erroneous and against the children's best interest.

         We recognize the deference afforded the trial court on custody matters and find sufficient evidence of a substantial change in circumstances surrounding Mother and Father's ability to share the decision-making rights, responsibility and authority relating to the welfare ...


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