Fortner v. Fortner

166 S.W.3d 615, 2005 Mo. App. LEXIS 1047, 2005 WL 1612949
CourtMissouri Court of Appeals
DecidedJuly 12, 2005
DocketWD 64569
StatusPublished
Cited by8 cases

This text of 166 S.W.3d 615 (Fortner v. Fortner) 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
Fortner v. Fortner, 166 S.W.3d 615, 2005 Mo. App. LEXIS 1047, 2005 WL 1612949 (Mo. Ct. App. 2005).

Opinion

EDWIN H. SMITH, Chief Judge.

James Fortner appeals the judgment of the Circuit Court of Howard County modifying its child custody order, pursuant to § 452.410.1, 1 granting his former wife, Amanda Fortner (respondent), sole physical custody of the parties’ three minor children. In its dissolution decree of August 26, 2002, the trial court awarded the parties joint physical custody of the children. On February 26, 2003, the trial court awarded temporary sole physical custody to the respondent, due to the appellant’s military service in Iraq. Upon his return from Iraq, the appellant filed a motion to restore the original custody arrangement, while the respondent filed a motion to modify, seeking permanent sole physical custody of the children. On August 2, 2004, the trial court sustained the respondent’s motion and overruled the appellant’s.

The appellant raises six points on appeal. In Point I, he claims the trial court erred in sustaining the respondent’s motion to modify because, in doing so, it misapplied § 452.410.1, by basing its required finding of changed circumstances on facts that arose before the prior decree was entered and were known to the court at the time of the prior decree. In Point II, he claims the trial court erred in sustaining the respondent’s motion because the evidence was insufficient to support the required finding of changed circumstances. In Point III, he claims the trial court erred in sustaining the respondent’s motion because, in doing so, it misapplied §§ 452.410.1 and 452.375 by failing to consider, as required, in determining whether the modification was in the best interests of the children, the factors of § 452.375.2 and by failing to make detailed written findings regarding those factors, as required by § 452.375.6. In Point IV, he claims the trial court erred in sustaining the respondent’s motion to modify because the evidence was insufficient to support the requisite finding that the respondent’s proposed custody arrangement was necessary to serve the best interests of the children. In Point V, he claims the trial court erred in sustaining the respondent’s motion to’ modify because, in doing so, it misapplied § 452.375.5 by failing to consider alternative parenting plans as authorized by that section. In Point VT, he claims the trial court erred in overruling his motion to restore the original custody arrangement because his evidence supported the sustaining of his motion.

We reverse and remand.

Facts

The parties were married on August 13, 1994, in Keytesville, Missouri. Three children were born of the marriage: Grace, born July 22, 1997; Charles, born August 4, 1998; and Lillian, born November 12, 2000. The parties’ marriage was dissolved by the Circuit Court of Howard County on August 26, 2002. In the dissolution decree, the court, in accordance with the parties’ separation agreement, awarded them joint legal and physical custody of the children.

On February 21, 2003, the respondent filed a “MOTION FOR TEMPORARY CUSTODY.” In her motion, she alleged *617 that the appellant, a member of the National Guard, “ha[d] received notification that his unit will be deployed [to Iraq] on February 27, 2003.” Consequently, she requested that the court “grant [her] temporary physical custody ... for all time periods of [the appellant’s] active duty in the military service of the United States, and for all other orders as the Court deems proper under the circumstances.” On February 26, 2003, the court issued a “JUDGMENT AND DECREE OF MODIFICATION OF JUDGMENT AND DECREE OF DISSOLUTION OF MARRIAGE FOR TEMPORARY CHANGE IN CHILD CUSTODY,” indicating that the respondent’s “motion for temporary custody is heard and sustained.”

On January 9, 2004, the appellant returned from Iraq. On January 27, 2004, he filed a motion to restore the original custody arrangement. On March 5, 2004, the respondent filed her answer to the appellant’s motion, as well as a motion to modify, seeking permanent sole physical custody of the children.

On May 13, 2004, the parties’ competing motions were taken up and heard by the trial court. On May 27, 2004, the court issued what it entitled “MEMORAN-DUM7FINDINGS,” in which it made findings of fact and conclusions of law and ordered that: “[The respondent’s] attorney shall prepare a proposed judgment for the court within 10 days of this order and shall furnish a copy of said proposed judgment to [the appellant’s] attorney. If no objection is made thereto within 5 days by [the appellant], the Court shall execute the same.” On August 2, 2004, the trial court entered its judgment modifying its child custody order, granting the respondent sole physical custody of the minor children. The court did not incorporate its May 27, 2004, memorandum into its judgment.

This appeal followed.

Standard of Review

Our review of a court-tried case involving matters of custody is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). In re Marriage of Eikermann, 48 S.W.3d 605, 608 (Mo.App.2001). We will affirm the judgment so long as it is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law. Id.

I.

In Point I, the appellant claims the trial court erred in sustaining the respondent’s motion because, in doing so, it misapplied § 452.410.1, by basing its required finding of changed circumstances on facts that arose before the prior decree was entered and were known to the court at the time of the prior decree. Specifically, he claims that the trial court’s February 26, 2003, order of temporary custody constituted the trial court’s prior decree for purposes of § 452.410.1 and that the court’s finding of changed circumstances was based upon facts, known to the court, that arose before that order was entered. We disagree.

Under Rule 75.01, 2 “[t]he trial court retains control over judgments during the thirty-day period after entry of [the] judgment^]” Any attempt by the trial court to retain jurisdiction beyond that thirty-day period is without effect. Lacher v. Lacker, 785 S.W.2d 78, 81 (Mo. banc 1990). Consequently, once a judgment of dissolution of marriage becomes final, “a motion to modify under RSMo *618 .§ 452.410 is required to bring custody of the children under the jurisdiction of the trial court.” T.L.I. v. D.A.I., 810 S.W.2d 551, 554 (Mo.App.1991) (citing Lacker, 785 S.W.2d at 81). In that regard, § 452.410.1 provides:

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Bluebook (online)
166 S.W.3d 615, 2005 Mo. App. LEXIS 1047, 2005 WL 1612949, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fortner-v-fortner-moctapp-2005.