IN THE MISSOURI COURT OF APPEALS WESTERN DISTRICT FRANK CHAN, ) ) Appellant, ) ) WD87136 v. ) ) OPINION FILED: ) January 8, 2025 ELIZABETH CHAN, ) ) Respondent. )
Appeal from the Circuit Court of Boone County, Missouri The Honorable Sue Crane, Judge
Before Division Three: Mark D. Pfeiffer, Presiding Judge, Gary D. Witt and Thomas N. Chapman, Judges
Mr. Frank Chan (“Father”) appeals the judgment of the Circuit Court of Boone
County, Missouri (“circuit court”), which modified a prior parenting plan to award him
significant additional parenting time with the two minor children (“L.O.C.” and
“L.S.C.”) born to him and his ex-wife, Ms. Elizabeth Chan1 (“Mother”), but did not
award an exactly equal split of parenting time as he requested. We affirm.
1 All of the pleadings in this matter list Mother as “Elizabeth Chan,” but during her testimony, she stated her name was now “Elizabeth Lindsey” and testified that she was “formerly Elizabeth Chan.” No explanation for the change of name appears in the record Factual and Procedural History2
Mother and Father’s marriage was originally dissolved in 2017 by a judgment that
provided for joint legal and physical custody of their minor children. At the time of that
2017 judgment, Father was a general surgery medical resident and had a demanding work
schedule, often requiring him to work one-hundred hours per week. Due in large part to
Father’s demanding and unpredictable work schedule, Mother and Father stipulated to a
parenting plan that provided Father parenting time for one guaranteed overnight every
other weekend and up to two overnights per week as Father’s work schedule allowed.
The children otherwise resided with Mother.
After Father completed his residency and began practicing emergency medicine,
his work schedule lessened considerably and, as such, he wanted to increase his parenting
time with the children. Thus, Father filed a motion to modify the 2017 parenting plan in
September 2020.
The parties mutually agreed to a temporary parenting plan, which was adopted by
the circuit court in March 2021 during the pendency of the modification proceedings.
The temporary parenting plan generally3 provided for Father to receive parenting time
before us. Thus, we will refer to her as “Elizabeth Chan” or “Mother” throughout this opinion for the sake of clarity. 2 “When our Court reviews whether the trial court's decision is supported by substantial evidence, we view the evidence and inferences therefrom in the light most favorable to the trial court's judgment and disregard all contrary evidence and inferences.” K.R. v. S.R., 674 S.W.3d 9, 15 (Mo. App. W.D. 2023) (quoting S.M.S. v. J.B.S., 588 S.W.3d 473, 484 (Mo. App. E.D. 2019)). 3 The temporary parenting plan provided an overriding schedule that evenly split parenting time on birthdays and holidays throughout the year and required Mother and
2 with the children for five nights over the span of every two weeks—every Tuesday and
every other Friday through Sunday—while Mother received parenting time with the
children on the remaining days. This parenting time schedule did not separately address
different parenting time schedules for summer months versus school-year months.
In his proposed permanent parenting plan, Father requested a modified version of
the temporary parenting plan’s two-week schedule during the school year, which would
additionally provide him parenting time every Monday so that each parent would
ordinarily4 receive the children for seven days out of every two-week period. Mother,
meanwhile, requested the circuit court instead make the temporary parenting plan
permanent, subject to a few slight modifications the parties agreed upon during a
settlement conference.5
An evidentiary hearing on the motion to modify was conducted before a Family
Court Commissioner (“Commissioner”) on January 4, 2023. The parties, each relying
primarily on their own testimony, presented different accounts on how the children had
adapted to their increased parenting time with Father following the initiation of the
temporary parenting plan.
Mother was frustrated with Father for substituting his medical judgment for that of
other doctors that had prescribed allergy and skin medication for the children. She also
Father to allow the other the first opportunity to provide childcare at times when the scheduled parent was unavailable. 4 Father’s proposed plan also include an overriding schedule for birthdays, holidays, and school breaks. 5 The details of these modifications are not challenged on appeal.
3 stated that Father failed to take the children to all of their extracurricular activities or
attend all parent-teacher conferences during his parenting time; that the children did not
sleep well when they were with Father; that Father refused to monitor their media
consumption, causing the children to wake with nightmares when they stayed with her;
and that the children were emotionally distraught after Father’s parenting time. Mother
also presented the testimony of her mother,6 who testified that she noticed the same
emotional struggles with the children after a visit with Father. Finally, Mother’s pastor
also testified about Mother’s devotion to the children and the numerous activities that the
children participated in at the church.
Conversely, Father admitted that he unilaterally made the decision that he would
only administer medication to the children if and when they were exhibiting symptoms
and not on a preventative basis; he felt like the children were getting along well with his
current wife and the two children from that marriage; he believed the children were
sleeping well and had adjusted very well to increased parenting time with him; he missed
one parent-teacher conference due to a medical emergency at his hospital; and he
submitted many photos showing the children happy when with him. Father also
presented the testimony of his current wife and mother-in-law, both of whom testified
that the children had a strong relationship with Father, their step-mother, and their two
6 Pursuant to the directive of section 509.520 (Supp. III 2023), we do not use any witness names in this opinion, other than parties to the underlying litigation. All other statutory references are to THE REVISED STATUTES OF MISSOURI (2016), as supplemented through February 27, 2024, unless otherwise indicated.
4 younger half-siblings; and they both also testified that the children had no issues with
Father’s increased parenting time.
After an initial modification to the parenting plan ordered by the Commissioner
and adopted by the circuit court, Father moved for reconsideration and to present
additional evidence to the circuit court. A supplementary hearing was held, where Father
presented evidence that he and his current wife had made the decision to move much
closer to Mother’s residence—reducing the drive distance between the two homes from
twenty-five minutes to three minutes. Father testified that this move would make the
parenting time transitions less time-consuming for the children and would promote a
better opportunity for the children to participate in extracurricular activities.
Again, the Commissioner ordered modifications to the parenting plan that, frankly,
awarded some parenting-time terms that Father requested, but not everything Father
requested. Conversely, the revised parenting plan ordered by the Commissioner awarded
some parenting-time terms that Mother requested, but not everything Mother requested.
The Commissioner’s order itemized some concerns that the Commissioner had:
that the frequency of parenting transitions was not in the children’s best interests; that
while the children have positive relationships with both parents, they are better adjusted
to Mother’s household; that Father, a medical doctor specializing in emergency medicine
and not allergy or dermatology, would not follow medical advice for the administration
of allergy and dermatological medicine for the children; and, Father’s obsession with an
absolutely identical number of parenting days with the children was motivated primarily
by his own selfish desires and not by the children’s best interests.
5 That said, the modified parenting plan ordered by the Commissioner largely
followed the temporary parenting plan the parties had agreed to, but it also adopted
Father’s request for evenly split two-week schedules in the summer months and
minimized the frequency of parenting time transitions during the school year. In fact, on
this last topic of minimizing transitions, Father testified in response to his attorney’s
questioning at the hearing that—should the court not grant exactly fifty-fifty parenting
time—he believed it was in the children’s best interests for him to have parenting time on
Mondays instead of Tuesdays during the school year to minimize the number of custodial
transitions. After the Commissioner addressed the children’s best interests in her
findings and conclusions, that is precisely what she ordered. Essentially, then, Father
received all of the parenting time that he testified would be in his children’s best interests
if the court awarded approximately equal parenting time instead of exactly equal
parenting time.
Now, however, Father’s argument on appeal is that he should receive both
Mondays and Tuesdays each school week along with alternating weekends because he
disagrees with the circuit court and believes exactly equal fifty-fifty parenting time is in
the children’s best interests and, thus, statutorily required. Ultimately, by failing to give
Father exactly equal fifty-fifty parenting time throughout the entire calendar year, Father
claims the Commissioner’s order, later adopted by the circuit court, is erroneous.
Father timely appealed, asserting a sufficiency-of-the-evidence challenge to the
circuit court’s judgment.
6 Standard of Review
“In reviewing a court-tried case, we affirm the judgment of the court unless it is
not supported by substantial evidence, it is against the weight of the evidence, or it
erroneously declares or misapplies the law.” Traxel v. Traxel, 295 S.W.3d 215, 218 (Mo.
App. W.D. 2009) (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)).
“Substantial evidence is evidence that, if believed, has some probative force on each fact
that is necessary to sustain the circuit court's judgment.” Ivie v. Smith, 439 S.W.3d 189,
199 (Mo. banc 2014). “To prevail on [a] substantial-evidence challenge, [the appellant]
must demonstrate that there is no evidence in the record tending to prove a fact that is
necessary to sustain the circuit court's judgment as a matter of law.” Pasternak v.
Pasternak, 467 S.W.3d 264, 269 (Mo. banc 2015) (alteration in original) (emphasis
added) (quoting Ivie, 439 S.W.3d at 200).
Analysis
In his sole point on appeal, Father asserts error because the circuit court’s
judgment relating to parenting time did not award “equal parenting time during the
school year.” Father asserts that the circuit court’s judgment fails to include substantial
evidence to “rebut” statutory requirements regarding a presumption for equal parenting
time.
In 2023, before the circuit court rendered the judgment now appealed from, the
statute governing custody and parenting time determinations was amended to create a
rebuttable presumption in favor of “equal or approximately equal” parenting time:
7 The court shall determine custody in accordance with the best interests of the child. There shall be a rebuttable presumption that an award of equal or approximately equal parenting time to each parent is in the best interests of the child. Such presumption is rebuttable only by a preponderance of the evidence in accordance with all relevant factors, including, but not limited to, the factors contained in subdivisions (1) to (8) of this subsection. The presumption may be rebutted if the court finds that the parents have reached an agreement on all issues related to custody, or if the court finds that a pattern of domestic violence has occurred as set out in subdivision (6) of this subsection. When the parties have not reached an agreement on all issues related to custody, the court shall consider all relevant factors and enter written findings of fact and conclusions of law, including, but not limited to, the following:
(1) The wishes of the child's parents as to custody and the proposed parenting plan submitted by both parties;
(2) The needs of the child for a frequent, continuing and meaningful relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child;
(3) The interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child's best interests;
(4) Which parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent;
(5) The child's adjustment to the child's home, school, and community. The fact that a parent sends his or her child or children to a home school or FPE school shall not be the sole factor that a court considers in determining custody of such child or children;
(6) The mental and physical health of all individuals involved, including any history of abuse of any individuals involved. If the court finds that a pattern of domestic violence as defined in section 455.010 has occurred, and, if the court also finds that awarding custody to the abusive parent is in the best interest of the child, then the court shall enter written findings of fact and conclusions of law. Custody and visitation rights shall be ordered in a manner that best protects the child and any other child or children for whom the parent has custodial or visitation rights, and the parent or other
8 family or household member who is the victim of domestic violence from any further harm;
(7) The intention of either parent to relocate the principal residence of the child; and
(8) The unobstructed input of a child, free of coercion and manipulation, as to the child's custodial arrangement.
§ 452.375.2 (emphasis added).
The statute does not create a presumption in favor of exactly equal parenting time
but only equal or approximately equal parenting time. Father acknowledges that the
difference between an exactly equal parenting plan and the current parenting plan is one
day per week during the school year.
Father offers no explanation for what an approximately equal parenting plan
would look like under these circumstances.7 Frankly, it is probable that the parenting
plan ordered by the Commissioner and adopted by the circuit court’s judgment purports
to do just that: award these parents approximately equal parenting time. And, it is not
lost on this Court that the circuit court was dealing with a situation in which the children
were transitioning from a Father who was formerly working one-hundred hours per week
during his general surgery residency and seeing the children infrequently to a situation
7 That said, it was Father who suggested during his hearing testimony that he receive Mondays instead of Tuesdays for parenting time during the school year if the court was not inclined to order a fifty-fifty split of parenting time. That was the only alternative to “equal” parenting time that Father suggested to the court below, and it begs the question of whether Father, himself, considered—at least at the time of the evidentiary hearing—such a split of parenting time during the school year to, in fact, constitute an “approximately equal” amount of parenting time.
9 where the circuit court was trying to balance the parenting time requests of both parents
with the best interests of the children.
Irrespective, we know of no precedent that mathematically quantifies what
approximately equal is to look like, and the parties have cited to no such case precedent.
What we do know is that we do not agree with Father’s suggestion in his appellate
briefing that anything less than fifty-fifty parenting time in a parenting plan must
constitute error. Section 452.375.2 contemplates that the best interests of children may
include “equal” or “approximately equal” parenting time. And, we believe the
legislature’s plain language in the statute intends for family courts to address this topic
within the context of the parties’ specific circumstances. That is precisely what the
Commissioner and circuit court have done in this case.
Here, the Commissioner’s findings and conclusions, adopted by the circuit court in
its judgment, weighed each of the statutorily required factors: the Commissioner (and
circuit court) determined that the first, third, and seventh factors were neutral; that no
evidence was presented regarding the eighth factor; that the second, fifth, and sixth
factors favored Mother’s parenting plan because the children were better adjusted to her
household and because she provided more appropriate care for the children; and that the
fourth factor favored Father because his proposed parenting plan would more evenly split
The Commissioner (and circuit court) concluded from weighing these factors that
a parenting plan providing for exactly equal parenting time would not be in the children’s
best interests—largely because the children were not adjusting well to Father’s
10 household. To support these findings, the circuit court cited to concerns with Father’s
care of the children that Mother raised in her testimony. And, as previously noted, it was
Father who testified that awarding him parenting time on Mondays instead of Tuesdays
would be in the children’s best interests if the court did not award a fifty-fifty split of
parenting time. Because the circuit court was entitled to rely upon this testimony to
conclude that providing Mother slightly more parenting time than Father would be in the
best interests of the children, its judgment was supported by substantial evidence.
Father, nonetheless, argues the record does not contain sufficiently strong evidence
for two reasons.
First, Father contends that the circuit court did not give proper weight to his
testimony, which contradicted Mother’s testimony, and that the presence of this
contradictory evidence required the circuit court to defer to the statutory presumption of
“equal” parenting time (and by “equal,” Father expects fifty-fifty “equality”). We
disagree.
At trial, the factfinder is not required to accept all evidence uncritically or weigh
all evidence equally; rather, the factfinder is entitled to believe all of the evidence, some
of the evidence, or none of the evidence and to resolve contradictory evidence. Zink v.
State, 278 S.W.3d 170, 192 (Mo. banc 2009) (quoting Blue Ridge Bank & Trust Co. v.
Hart, 152 S.W.3d 420, 426 (Mo. App. W.D. 2005)) (“As the trier of fact, the trial court
determines the credibility of witnesses and is free to believe or disbelieve all or part of
the witnesses' testimony.”); Exchange Bank of Mo. v. Gerlt, 367 S.W.3d 132, 136 (Mo.
App. W.D. 2012) (“[E]ven where the testimony of a witness is not contradicted by other
11 testimony . . . ‘it is well settled that the trial court is free to believe or disbelieve all, part
or none of the evidence, including disbelieving evidence that is uncontroverted.’”).
Because a trial court is free to disregard any evidence in reaching its judgment and
because we review the facts and inferences from the record in the light most favorable to
the judgment during a lack-of-substantial-evidence challenge, evidence in the record that
contradicts the judgment is irrelevant to our consideration. Ivie, 439 S.W.3d at 200 (“In
addition, this Court has made clear that no contrary evidence need be considered on a
substantial-evidence challenge, regardless of whether the burden of proof at trial was
proof by a ‘preponderance of the evidence’ or proof by ‘clear, cogent, and convincing
evidence.’”); Carpenter v. Carpenter, 689 S.W.3d 765, 775 (Mo. App. W.D. 2024)
(alteration in original) (“[R]eferring this court to evidence and inferences contrary to the
judgment is irrelevant and immaterial to an appellant's point challenging a factual
proposition necessary to sustain the judgment as being not supported by substantial
evidence.”).
Here, the circuit court resolved the conflicts between the parties’ evidence
favorably to Mother and found that her testimony, which detailed several issues with
Father’s care of the children, sufficiently demonstrated that fifty-fifty equal parenting
time would not be in the children’s best interests. The mere presence of Father’s contrary
testimony did not deprive the circuit court of substantial evidence to support its judgment.
Next, Father asserts that his testimony regarding the children’s medical treatment
should have been given more weight than Mother’s testimony because he is a doctor
while she has no medical training. We first note that Father did not seek to be designated
12 as an expert witness regarding the children’s specific medical issues. But more
importantly, our courts have long held that an expert’s opinion is not entitled to more
weight, as a matter of law, than a lay witness’s testimony or even any weight at all:
[T]he trial court was not bound by plaintiff's “expert” testimony. The rules governing opinion and expert testimony are well settled. The testimony of an expert is to be considered like any other testimony, is to be tried by the same test, and receive just so much weight and credit as the jury (or judge) may deem it entitled to when viewed in connection with all other circumstances. There is no logical distinction between expert opinion testimony and fact testimony and the values of both are to be measured by precisely the same standards. The rule is not different even though the expert evidence is uncontradicted. A judge, as the trier of fact, has the authority to weigh the evidence and is not bound by the opinions of experts . . . but may believe all or none of the expert's testimony and accept it in part or reject it in part.
Beardsley v. Beardsley, 819 S.W.2d 400, 403 (Mo. App. W.D. 1991) (internal citations
and quotation marks omitted) (emphasis added); Robinson v. Langenbach, 599 S.W.3d
167, 184 (Mo. banc 2020) (alteration in original) (quoting State v. Quilling, 363 256
S.W.2d 751, 752 (Mo. banc 1953)) (“The general rule applies that the trier of fact may
assign to expert testimony ‘just so much weight and credit as the [trier of fact] may deem
it entitled to when viewed in connection with all the circumstances.’”); Exchange Bank of
Mo. v. Gerlt, 367 S.W.3d at 135-36.8
8 A witness’s designation as an expert goes to the admissibility of the expert’s opinion on a specialized topic outside of the factfinder’s general knowledge, which a lay witness would not be permitted to give, not the weight given to that opinion. State v. Presberry, 128 S.W.3d 80, 86 (Mo. App. E.D. 2003) (“Generally, a lay witness may not testify regarding the witness' opinion on a matter in dispute because the lay witness lacks specialized knowledge about the matter and, therefore, the jury and lay witness ‘are in equal positions to form an accurate opinion.’”); 490.065.1(1) (“If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to
13 Here, even if Father had been qualified as an expert,9 the circuit court would not
have been required to give his testimony additional weight in comparison to Mother’s
testimony. Thus, the circuit court committed no error in crediting Mother’s testimony
over Father’s testimony in finding her treatment of the children’s medical issues more
appropriate.
Furthermore, because both of Father’s lack-of-substantial-evidence arguments
essentially amount to requests for this Court to re-weigh the evidence that was before the
Commissioner and circuit court, which we cannot and will not do, we reject them.
Carpenter, 689 S.W.3d at 777 (internal citation and quotation marks omitted) (“The
[appellant]'s citation to [his] own favorable evidence—while ignoring the contrary
evidence—and [his] argument that the trial court should have ruled on the issue more
favorably to [him], is not a basis for reversal and ignores our standard of review. On
appeal, we will not, therefore, reweigh that competing evidence in order to rule for the
[appellant].”).
Point I is denied.
determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.”). 9 Father presented no evidence that the opinion of a doctor specializing in emergency medicine and trained as a general surgeon somehow trumps the medical advice of a doctor trained in allergy or dermatology on issues of medical treatments for allergy or dermatological issues.
14 Conclusion
The judgment of the circuit court relating to the modification to the parties’
parenting plan is affirmed.
___________________________________ Mark D. Pfeiffer, Presiding Judge
Gary D. Witt and Thomas N. Chapman, Judges, concur.