In the Missouri Court of Appeals Eastern District DIVISION FIVE
DEREK MAXWELL, ) No. ED111647 ) Respondent, ) Appeal from the Circuit Court ) of Audrain County vs. ) Cause No. 19AU-DR00007 ) CHRISTINA MAXWELL ) Honorable Michael S. Wright ) ) Appellant. ) FILED: April 23, 2024
Opinion
Christina N. Maxwell (Mother) appeals from the trial court’s judgment of dissolution
granting sole legal and physical custody to Derek W. Maxwell (Father) of the parties’ three
minor children from their marriage. The dispute now before this Court arose when, just before
trial, Mother sought to consent to the entry of judgment adopting the relief Father requested in
his initial petition filed three years earlier – specifically joint legal and physical custody
according to a parenting plan Father had proposed.
In her sole point on appeal, Mother contends the trial court erred by failing to enter such
judgment upon her consent and by proceeding with trial because the court lacked jurisdiction
after Mother consented to judgment as prayed in Father’s petition. We affirm the judgment
because at the time of trial, the parties were no longer in agreement as to the custody
arrangements and the trial court was not bound by Mother’s wishes but instead had the duty, which it properly executed here, to determine custody arrangements that are in the best interest
of the child, and to consider the factors enumerated in section 452.375.2 1
Background
Mother and Father were married in August 2008. In February 2019, Father filed a
petition for dissolution and a proposed parenting plan seeking joint legal and physical custody of
the children. Mother filed an answer and counter-petition for dissolution, as well as a proposed
parenting plan, which also sought joint legal and physical custody of the children. In March
2021, Father moved to appoint a guardian ad litem (GAL) for the children to which Mother
consented.
On October 26, 2021, pursuant to Mother and Father’s joint request, the trial court issued
its pendente lite order of joint legal and physical custody. On June 8, 2022, Father moved to
modify that order alleging that for the best interests of the children Mother should have little or
no contact with them. The trial began on September 1, 2022, and the court considered evidence
and testimony over the course of four trial days spread over 4 months. Before the introduction of
any evidence, Mother’s counsel informed the court that Mother consented to judgment as pled in
Father’s 2019 original petition and proposed parenting plan. The GAL objected to the entry of
such judgment and Father likewise objected because he no longer sought the custody agreement
outlined in his initial pleadings and he planned to submit an amended parenting plan during trial.
The court rejected Mother’s offer to consent to the original petition and parenting plan, and
proceeded with trial. On the second day of trial, the court exercised its discretion in the best
interest of the children and modified its pendente lite order granting Father sole physical custody.
1 All further statutory references are to RSMo (Cum. Supp. 2021).
2 Each child’s counselors testified that the children should reside with Father and have
either limited contact or supervised contact with Mother. The GAL recommended the children
reside with Father, who had relocated out of state, and that they be allowed visitation with
Mother one weekend per month during the school year, and that two of the children have
extended time with Mother during the summer with specific parameters in place during the
visitation period. The GAL also recommended that Mother have access to the children’s
medical, counseling, and school records and if this required Mother to be awarded joint legal
custody, the GAL agreed with that.
Trial concluded on December 13, 2022. On March 19, 2023, the court issued its
judgment and decree of dissolution of marriage, awarding Father sole legal and physical custody
of the children. On April 18, 2023, Mother filed her motion to reconsider which was denied.
This appeal follows.
Standard of Review
Our review of a trial court’s judgment regarding child custody is governed by Murphy v.
Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Tompkins v. Baker, 997 S.W.2d 84, 88 (Mo. App.
W.D. 1999). Thus, we will affirm the judgment unless it is not supported by substantial
evidence, it is against the weight of the evidence, or the court erroneously applies or declares the
law. Id. at 88-9.
Discussion
In her only point on appeal, Mother alleges that the trial court erred by going to trial in
this case because the trial court should have simply entered judgment, upon Mother’s stated
consent, for the relief sought in Father’s original petition consisting of joint legal and physical
custody and the parenting plan Father had originally proposed. We disagree. The trial court
3 correctly proceeded to the trial of this case because even when parties have stipulated or
consented to custody arrangements, the court has an independent duty to ensure that those
custody arrangements are in the best interests of the children. Missouri Revised Statute Section
452.375.2 enumerates eight factors that the court must consider when making a custody
evaluation, of which only one is the wishes of the parents as to custody. Haden v. Riou, 37
S.W.3d 854, 865 (Mo. App. W.D. 2001). Thus, the trial court had the duty to make its own
custody determination and the authority to enter a child custody order different from that to
which Mother may have consented.
We are guided by the principles set forth in Tompkins, 997 S.W. 2d at 89, in which the
court examined the effect of the parties’ custody stipulation in a paternity action. There, the
parties appeared with counsel and entered on the record their stipulation as to custody and
visitation. Id. at 86. Neither party objected, and the court issued its written order adopting the
stipulation. Id. at 86-87. Sometime later, Father claimed he misunderstood the stipulation, no
longer agreed with it, and wanted a trial. Id. at 87.
Although the parties in Tompkins were never married, the court likened their on-the-
record stipulation to a marital separation agreement and acknowledged that while parties may
enter into an agreement or stipulate as to maintenance, property distribution, and custody, the
trial court still has the responsibility to make an independent determination of whether a
particular custody arrangement is in the best interests of the child. Id. at 89-90. Thus, the fact
that the parties have an agreement as to custody does not relieve the trial court of this duty. Id. at
91; Section 453.325.2.
4 Consequently, in the case at bar the court properly refused to enter judgment upon
Mother’s consent and instead made its own custody determination based on the evidence of what
was in the best interests of the children. Haden, 37 S.W.3d at 865.
Moreover, the facts at bar are even more compelling than the facts in Tompkins, as
Mother here cannot demonstrate an agreement with Father, only that three years earlier at the
inception of the litigation the parties were seemingly in agreement as to the custody
arrangements.
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In the Missouri Court of Appeals Eastern District DIVISION FIVE
DEREK MAXWELL, ) No. ED111647 ) Respondent, ) Appeal from the Circuit Court ) of Audrain County vs. ) Cause No. 19AU-DR00007 ) CHRISTINA MAXWELL ) Honorable Michael S. Wright ) ) Appellant. ) FILED: April 23, 2024
Opinion
Christina N. Maxwell (Mother) appeals from the trial court’s judgment of dissolution
granting sole legal and physical custody to Derek W. Maxwell (Father) of the parties’ three
minor children from their marriage. The dispute now before this Court arose when, just before
trial, Mother sought to consent to the entry of judgment adopting the relief Father requested in
his initial petition filed three years earlier – specifically joint legal and physical custody
according to a parenting plan Father had proposed.
In her sole point on appeal, Mother contends the trial court erred by failing to enter such
judgment upon her consent and by proceeding with trial because the court lacked jurisdiction
after Mother consented to judgment as prayed in Father’s petition. We affirm the judgment
because at the time of trial, the parties were no longer in agreement as to the custody
arrangements and the trial court was not bound by Mother’s wishes but instead had the duty, which it properly executed here, to determine custody arrangements that are in the best interest
of the child, and to consider the factors enumerated in section 452.375.2 1
Background
Mother and Father were married in August 2008. In February 2019, Father filed a
petition for dissolution and a proposed parenting plan seeking joint legal and physical custody of
the children. Mother filed an answer and counter-petition for dissolution, as well as a proposed
parenting plan, which also sought joint legal and physical custody of the children. In March
2021, Father moved to appoint a guardian ad litem (GAL) for the children to which Mother
consented.
On October 26, 2021, pursuant to Mother and Father’s joint request, the trial court issued
its pendente lite order of joint legal and physical custody. On June 8, 2022, Father moved to
modify that order alleging that for the best interests of the children Mother should have little or
no contact with them. The trial began on September 1, 2022, and the court considered evidence
and testimony over the course of four trial days spread over 4 months. Before the introduction of
any evidence, Mother’s counsel informed the court that Mother consented to judgment as pled in
Father’s 2019 original petition and proposed parenting plan. The GAL objected to the entry of
such judgment and Father likewise objected because he no longer sought the custody agreement
outlined in his initial pleadings and he planned to submit an amended parenting plan during trial.
The court rejected Mother’s offer to consent to the original petition and parenting plan, and
proceeded with trial. On the second day of trial, the court exercised its discretion in the best
interest of the children and modified its pendente lite order granting Father sole physical custody.
1 All further statutory references are to RSMo (Cum. Supp. 2021).
2 Each child’s counselors testified that the children should reside with Father and have
either limited contact or supervised contact with Mother. The GAL recommended the children
reside with Father, who had relocated out of state, and that they be allowed visitation with
Mother one weekend per month during the school year, and that two of the children have
extended time with Mother during the summer with specific parameters in place during the
visitation period. The GAL also recommended that Mother have access to the children’s
medical, counseling, and school records and if this required Mother to be awarded joint legal
custody, the GAL agreed with that.
Trial concluded on December 13, 2022. On March 19, 2023, the court issued its
judgment and decree of dissolution of marriage, awarding Father sole legal and physical custody
of the children. On April 18, 2023, Mother filed her motion to reconsider which was denied.
This appeal follows.
Standard of Review
Our review of a trial court’s judgment regarding child custody is governed by Murphy v.
Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Tompkins v. Baker, 997 S.W.2d 84, 88 (Mo. App.
W.D. 1999). Thus, we will affirm the judgment unless it is not supported by substantial
evidence, it is against the weight of the evidence, or the court erroneously applies or declares the
law. Id. at 88-9.
Discussion
In her only point on appeal, Mother alleges that the trial court erred by going to trial in
this case because the trial court should have simply entered judgment, upon Mother’s stated
consent, for the relief sought in Father’s original petition consisting of joint legal and physical
custody and the parenting plan Father had originally proposed. We disagree. The trial court
3 correctly proceeded to the trial of this case because even when parties have stipulated or
consented to custody arrangements, the court has an independent duty to ensure that those
custody arrangements are in the best interests of the children. Missouri Revised Statute Section
452.375.2 enumerates eight factors that the court must consider when making a custody
evaluation, of which only one is the wishes of the parents as to custody. Haden v. Riou, 37
S.W.3d 854, 865 (Mo. App. W.D. 2001). Thus, the trial court had the duty to make its own
custody determination and the authority to enter a child custody order different from that to
which Mother may have consented.
We are guided by the principles set forth in Tompkins, 997 S.W. 2d at 89, in which the
court examined the effect of the parties’ custody stipulation in a paternity action. There, the
parties appeared with counsel and entered on the record their stipulation as to custody and
visitation. Id. at 86. Neither party objected, and the court issued its written order adopting the
stipulation. Id. at 86-87. Sometime later, Father claimed he misunderstood the stipulation, no
longer agreed with it, and wanted a trial. Id. at 87.
Although the parties in Tompkins were never married, the court likened their on-the-
record stipulation to a marital separation agreement and acknowledged that while parties may
enter into an agreement or stipulate as to maintenance, property distribution, and custody, the
trial court still has the responsibility to make an independent determination of whether a
particular custody arrangement is in the best interests of the child. Id. at 89-90. Thus, the fact
that the parties have an agreement as to custody does not relieve the trial court of this duty. Id. at
91; Section 453.325.2.
4 Consequently, in the case at bar the court properly refused to enter judgment upon
Mother’s consent and instead made its own custody determination based on the evidence of what
was in the best interests of the children. Haden, 37 S.W.3d at 865.
Moreover, the facts at bar are even more compelling than the facts in Tompkins, as
Mother here cannot demonstrate an agreement with Father, only that three years earlier at the
inception of the litigation the parties were seemingly in agreement as to the custody
arrangements. Initially, in 2019 when the petition for dissolution was filed, both Mother and
Father filed proposed parenting plans seeking joint legal and physical custody of the children.
However, as the proceedings developed, Father became concerned that such custody would not
be in the best interests of the children. The record indicates that at the time of trial Father was no
longer agreeable to joint legal and physical custody of the children. Following his initial petition
and proposed parenting plan, he sought appointment of a GAL on behalf of the children,
modification of the temporary custody order granting joint custody to Mother and Father, and he
ultimately filed an amended proposed parenting plan seeking sole legal and physical custody of
the children. Father also testified at trial that he desired sole legal and physical custody of the
children.
At trial, the testimony of one of the children and their half-sibling, the children’s
counselors, their former middle school principal, and Father supported the conclusion that joint
legal and physical custody no longer served the children’s best interests. After hearing the
evidence and considering each factor enumerated in Section 452.375, the trial court issued a
detailed judgment finding it was in the best interests of the children that Father have sole legal
and physical custody. 2 Point one on appeal is denied.
2 Mother’s sole point on appeal challenges only the trial court’s decision to proceed with trial in light of her consent to judgment on Father’s original petition and proposed parenting plan and not whether the judgment was supported
5 Conclusion
For the reasons set forth above, we affirm the trial court’s judgment.
Rebeca Navarro-McKelvey, J.
Thomas C. Clark, II., C.J., and Cristian M. Stevens, J., concur.
by substantial evidence; however, the record here reflects the judgment was supported by substantial evidence and was not against the weight of the evidence.