BRANDON SCHIESSWOHL v. BOBBI SPAIN

Missouri Court of Appeals

BRANDON SCHIESSWOHL v. BOBBI SPAIN

DecidedAugust 29, 2024

DocketSD38173

StatusPublished

This text of BRANDON SCHIESSWOHL v. BOBBI SPAIN (BRANDON SCHIESSWOHL v. BOBBI SPAIN) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

BRANDON SCHIESSWOHL v. BOBBI SPAIN, (Mo. Ct. App. 2024).

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Opinion

In Division

BRANDON SCHIESSWOHL, ) ) Appellant, ) No. SD38173 ) v. ) Filed: August 29, 2024 ) BOBBI SPAIN, ) ) Respondent. )

APPEAL FROM THE CIRCUIT COURT OF LAWRENCE COUNTY

Honorable Matthew R. Kasper, Judge

REVERSED AND REMANDED WITH INSTRUCTIONS

This case requires us to decide what the proper legal standard is for a

modification of a child custody decree. The answer depends on whether the

party is seeking to modify the custody arrangement (e.g., a change in the

parenting schedule) or the custody designation (e.g., a change from joint

custody to sole custody). If the party seeks a modification to the term of the

custody arrangement, then the party must show "a change . . . in the

circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child." § 452.410.1. 1 If, however,

the party seeks a modification to the custody designation, then that party

must show a "substantial" change in circumstances and that modification is

necessary to serve the best interests of the child. Prach v. Westberg, 455

S.W.3d 513, 516 (Mo. App. W.D. 2015).

In the case before us, both parents sought modifications to the

parenting schedule. Father sought a modification to give him final decision-

making authority over Child's healthcare if he and Mother could not agree on

Child's treatment. Neither party sought to change the custody designation

from joint custody to sole custody. The trial court denied all motions, finding

there had not been a "substantial" change in circumstances. Father then

filed a motion to reconsider, arguing the trial court applied the wrong

standard by requiring a "substantial" change in circumstances instead of a

"change" in circumstances. That motion was also denied, and this appeal

follows.

Father raises two points on appeal. In point 1, Father argues the trial

court misapplied the law by using the "substantial" change in circumstances

standard in denying his amended motion because it was only necessary to

show a "change" in circumstances since he was not seeking a change in the

1 All statutory citations are to RSMo. (2016).

2 custody designation.2 In point 2, Father argues the trial court erred by

failing to make findings as required by section 452.375.

Father's point 1 has merit. Because Father sought to modify the

custody arrangement and not the custody designation, the proper standard

was a "change" in circumstances rather than a "substantial" change in

circumstances.3

Background

Brandon Schiesswohl ("Father") and Bobbi Spain ("Mother") are the

parents of a minor child ("Child").4 In 2016, Father filed a Petition for

Declaration of Paternity, Custody, Visitation and Child Support. Both

Mother and Father agreed they should have joint legal and joint physical

custody of Child and both "had been able to work closely with each other

2 Father's point raises two distinct claims of error: (1) that the trial court erred in applying the "substantial change in circumstances" standard in denying Mother's motion to modify; and (2) that the trial court erred in applying the "substantial change in circumstances" standard in denying Father's motion to modify. By combining these two challenges into a single point, Father has rendered his point multifarious in violation of Rule 84.04(d) Missouri Court Rules (2023). "A multifarious point is one that groups together multiple, independent claims rather than a single claim of error." Barbieri v. Barbieri, 633 S.W.3d 419, 432 (Mo. App. E.D. 2021). Generally, such claims preserve nothing for appeal and are subject to dismissal. Id. However, because we can discern the nature of Father's argument as it relates to the denial of his amended motion to modify, we exercise our discretion to review that distinct claim. We also point out that even if we chose to review Father's claim as to the denial of Mother's motion to modify, Father was not prejudiced by that denial and, in fact, was opposed to Mother's motion to modify at the hearing. Finally, the claim that the trial court applied the wrong standard to Mother's motion for modification was not raised in Father's motion to reconsider and is not preserved for our review.

3 Our resolution of point 1 makes our review of point 2 unnecessary.

4 Mother did not file an appeal, nor did she file a brief in this appeal. "Although there is no penalty for failure to file a brief, this court must adjudicate [Father's] claim without the benefit of whatever argument, if any, [Mother] could have made in response." Risch v. Risch, 72 S.W.3d 274, 276 n1 (Mo. App. S.D. 2002). 3 regarding [Child]." The trial court awarded Father and Mother joint legal

custody and joint physical custody of Child.

As part of the child custody decree, Mother and Father were ordered to

comply with a parenting plan. That parenting plan essentially provided

Father would have custody over Child during the school year with Mother to

have custody three weekends each month, and that during the summer

months, Mother would have custody of Child with Father to have custody

three weekends each month. The parenting plan also required each parent

to:

consult each other and agree prior to obtaining significant medical and dental treatment for [Child]. Emergency care may, however, be authorized without the other Parent's prior consent.

The parenting plan contained no provision for how parents were to resolve

disputes about Child's healthcare in the event that they could not agree.

After that judgment was entered, both parents filed motions to modify,

alleging a change in circumstances and both sought changes to the parenting

schedule.5 Father later filed an amended motion to modify. In addition to

modifying the parenting schedule, Father's amended motion sought to modify

"the parties' decision making process for medical treatment for [Child.]"

According to Father's motion, these modifications were warranted because:

5 Mother's motion requested the parenting schedule be modified to give her custody during

the school year and Father custody during the summer. Father's motion sought a change in the parenting schedule because the current schedule required too much driving and too many exchanges of Child.

4 (1) the current parenting time schedule required too much driving and too

many exchanges of Child; and (2) the parties could not agree on medical

treatment for Child.6 Neither parent sought to change the custody

designation from joint custody to sole custody.

The trial court heard evidence on the motions to modify. Since the

original judgment was entered, both parents had moved to new cities and

Child had been diagnosed with Attention-Deficit/Hyperactivity Disorder

("ADHD") by two doctors. Relevant to this appeal, Mother did not believe

there was too much driving time, as alleged by Father, and the two did not

agree on how Child's ADHD should be treated. While Father was open to

treating Child's condition with medication, Mother was not. The trial court

denied both parents' motions to modify, finding there was no "substantial"

change in circumstances to warrant modification.

6 Father's proposed amended parenting plan stated:

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