Hermann v. Heskett

403 S.W.3d 136, 2013 WL 3246384, 2013 Mo. App. LEXIS 796
CourtMissouri Court of Appeals
DecidedJune 28, 2013
DocketNo. ED 98876
StatusPublished
Cited by13 cases

This text of 403 S.W.3d 136 (Hermann v. Heskett) 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
Hermann v. Heskett, 403 S.W.3d 136, 2013 WL 3246384, 2013 Mo. App. LEXIS 796 (Mo. Ct. App. 2013).

Opinion

ROBERT G. DOWD, JR., Presiding Judge.

T.H. (“Mother”) appeals from the trial court’s judgment granting in part J.H.’s (“Father”) motion to modify custody and child support. Mother asserts six points on appeal. We affirm.

Mother and Father have one daughter (“Child”) together, who was born in 2007. After the birth, Father filed a paternity action to determine whether or not he was Child’s father.

On April 28, 2008, Father was declared the father of Child, and the court awarded Mother and Father joint legal custody and awarded sole physical custody to Mother. Father was awarded visitation and periods of temporary custody. Father was also ordered to pay Mother $534 per month in child support. . On August 17, 2009, the court entered a modification judgment, which provided Father with additional visitation.

Subsequently, Father filed a motion to modify, among other things, the court’s award of child custody and child support. Father contended Mother did not let him see Child outside the visitation schedule and is' not flexible with regard to such schedule. Father alleged Mother had also violated the parenting plan on several occasions. Father also noted he had remarried and was expecting a baby and wanted Child to bond with his new baby. Father also stated he moved out of the City of St. Louis to Glendale so his children could have access to the Kirkwood School District. Father asserted Mother has indicated she wants Child to attend private school, against Father’s wishes. Father also stated he desired to be named residential parent for purposes of education and mailing because he lived within a superior school district. Father alleged Child was accustomed to traveling back and forth between her parents. Father contended the parenting plan provisions for Thanksgiving, Christmas Eve, and Christmas Day “are problematic and do not work well with the parties’ family traditions.” Lastly, Father argued despite the joint custody provision, Mother sched[139]*139ules Child’s doctor appointments and gives him very little notice. Thus, Father requested the court award joint physical custody. Father also requested a modification of his child support obligation, as Mother was earning substantially more than at the time of the modification judgment.

Mother filed an answer to Father’s motion to modify and also filed a cross-motion to modify, arguing Father’s earnings have substantially increased since the time of the judgment, Child is older and has greater expenses for education, inflation has caused the expenses of maintaining and educating Child to increase. Thus, Mother requested that Father’s child support obligation be increased. Mother also requested attorneys’ fees.

Mother also filed a separate motion for attorneys’ fees, arguing Father’s motion to modify was frivolous and she was without adequate means to employ counsel to defend against the motion. Father also filed a motion for attorneys’ fees, arguing Mother’s unreasonable behavior resulted in protracted litigation.

Thereafter, the trial court entered its judgment, in which it made extensive findings of fact. The trial court found Mother had, at best, been less than forthcoming and, at worst, lied to the court; therefore, it found at this time, a stable and consistent environment for Child can be obtained only if Mother and Father share equally physical custody of Child. The trial court also noted Mother has consciously chosen to minimize Father’s involvement with Child and incorrectly believes she has the unfettered right to determine what serves the best interests of Child. The trial court further found Mother consistently places her own selfish interests ahead of the best interests of Child, which required that Father be designated the residential parent for mailing and educational purposes. The trial court noted Mother’s efforts to dictate how Child will be raised is in direct contravention of not only her obligations under the judgment, but also the best interests of Child. The trial court agreed Child required consistency in her physical custody schedule, but believed the required consistency can be obtained even if Child does not sleep in the same bed throughout the school week. The trial court concluded Father demonstrated Child will substantially benefit if he is awarded joint physical custody and shares physical custody equally with Mother. Because of the award of joint physical custody, the trial court found the previous amount of child support paid by Father to Mother was unreasonable.

Therefore, the trial court granted Father’s motion to modify in part and denied it in part. The trial court granted Father’s motion for attorneys’ fees in part and denied it in part, and the trial court denied Mother’s motion for attorneys’ fees. Mother and Father were ordered to retain joint legal custody of Child, but their physical custody arrangement was modified in that they were ordered to have joint physical custody of Child with Father designated as the residential parent for mailing and educational purposes. In addition, the trial court ordered neither parent shall recover any sums at this time from the other parent for support of Child; thus, Father’s child support obligation was terminated. The trial court denied the part of Father’s motion to modify requesting Child’s last name to be changed to Father’s. Lastly, Mother was ordered to pay $5,000 toward the attorneys’ fees of Father.

Mother subsequently filed a motion to amend the judgment or for a new trial. Father filed a response. Thereafter, the trial court denied Mother’s motion. This appeal follows.

[140]*140We review the trial court’s ruling on a motion to modify child custody pursuant to the standard set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). In re Marriage of Sutton, 233 S.W.3d 786, 789 (Mo.App.E.D.2007). We will sustain that judgment unless there is not substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Id. We will not set aside a trial court’s judgment on child custody unless we firmly believe that the decree is wrong and that the child’s welfare requires another disposition. Id.

In her first point, Mother argues the trial court erred and abused its discretion in finding there was a substantial and continuing change of circumstances justifying a modification of physical custody of Child. We disagree.

Section 452.410 RSMo (2000) provides that a court may modify a prior child custody decree if it finds, “upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child.”

Mother contends the trial court did not make an appropriate statement that there had been a change in circumstances.

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Bluebook (online)
403 S.W.3d 136, 2013 WL 3246384, 2013 Mo. App. LEXIS 796, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hermann-v-heskett-moctapp-2013.