J.T.P. v. P.F.

440 S.W.3d 497, 2014 Mo. App. LEXIS 589, 2014 WL 2191011
Missouri Court of Appeals·Decided May 27, 2014·No. No. ED 99788·Published·Cited by 7 cases

Opinion

CLIFFORD H. AHRENS, Judge.

J.T.P. (Father) and P.F. (Mother) appeal the trial court’s judgment modifying the residential custody schedule for their son, K.R.P. (Son). We reverse.

Background

In 2002 at the age of 21, Mother suffered a stroke that caused long-term cognitive impairment. Mother’s son from a previous relationship was four years old at the time. Mother and Father met in 2003 and lived together until shortly after Son’s birth in May 2005. Mother then moved into her own apartment with her two young sons. In March 2006, the trial court entered a decree of paternity and judgment awarding the parties joint legal and physical custody of Son. Mother’s address was designated as Son’s primary address for educational and mailing purposes. Mother had residential custody every Monday and Tuesday, Father had residential custody every Wednesday and Thursday, and they alternated weekends.

Sometime after entry of the judgment, Mother and her sons relocated to reside with her mother, step-father, and adult sister. As a result, Mother and Father now live in different school districts but within reasonable driving distance and in the same county. In April 2010, Father filed a motion seeking sole legal and physical custody on the basis that Mother was neglectful and uncooperative. As a result of those allegations and on Father’s motion, the court appointed George Tillman to serve as guardian ad litem (GAL). Mother filed an answer and cross-motion also seeking sole legal and physical custody.

The cause was originally set for trial August 11, 2011, but actually commenced July 30, 2012 and, after three days of testimony spread over five months, ended November 30, 2012. The parties amassed collectively over $96,000 in attorney fees and $9,780 in GAL fees. At trial, the court ascertained that Father merely sought modification of the residential custody schedule in his favor (rather than sole custody) primarily on the basis that Mother’s cognitive impairment rendered her unable to assist Son academically. The trial court would ultimately grant Father’s request on that basis, awarding Father residential custody during the school year and Mother during the summer, with alternating weekends and holidays. As relevant to this appeal, the following evidence was adduced.

Father has a high school diploma and some college credits. He works night shifts at UPS. Father resides with his girlfriend and has another son whose visitation schedule coincides with Son’s days there. Father’s girlfriend and mother transport Son to school when Father is working or sleeping, and Father’s mother cares for Son in the summer.

[499] Mother and her two sons reside with her family, who assist her in parenting the boys. Mother is capable of routine parenting tasks (e.g., waking the children for school, preparing meals, readying the children for bed) but limited in her ability to assist with school work. As a result, her family members provide the necessary academic support. Son’s grandmother is an adjunct professor and, at the time of trial, was near completion of a doctoral degree. She described Mother’s daily activities as typical of a stay-at-home mom. Son’s step-grandfather completed some college hours (40-60) and had worked as a team leader at General Motors for neatly BO years. He described horhework as a team effort, stating that the “family works together.”

Dr. Susan Sanderson was appointed by the court to evaluate Mother’s cognitive functioning, particularly regarding her ability to be a safe and effective parent. Sanderson testified that Mother has reading, language, and memory deficiencies and an IQ of 76, placing her in the “borderline” range of intellectual functioning. Sanderson testified that Mother is able to recognize her need for help and ask for appropriate assistance. Sanderson had “no specific parenting concerns” beyond Mother’s academic limitations. Sanderson conceded that she knew nothing of Mother’s family members’ academic abilities or those of Father.

Mother’s own expert, Dr. Dean Lawrence Rosen, also evaluated Mother and reached similar conclusions with respect to Mother’s cognitive limitations. Additionally, however, Rosen observed Mother’s interactions with Son in a clinical setting and found her parenting skills “warm” and “appropriate.” Rosen explained that a child’s primary needs from his parents are unconditional acceptance and encouragement toward achievement, and that Mother provides both. He opined that a parent’s academic ability to assist a child is only one aspect of educational parenting and, in any case, Mother surrounded herself with family members who could compensate for her cognitive limitations. Rosen also noted that Son had advanced language skills for his age (then 5). But, at least as important, Rosen explained, is a parent’s ability to set expectations, enforce study habits, and reward good work. Rosen opined that Mother “can provide absolute warmth and acceptance to her child, making him feel safe and loved and accepted” and that she is “capable of setting limits and boundaries.” Finally, when asked about a change in the custody schedule, Rosen replied that children have difficulty with change and always do best with predictability.

GAL Tillman testified that Son is bonded with both parents and is well-adjusted to the current schedule. He found the evidence insufficient to justify a major modification in residential custody and recommended that it was in Son’s best interests to maintain the existing schedule. At most, he suggested that Father have additional visitation with Son after school on Mother’s custodial days during the school year in order to help Son with his homework.

Based on the foregoing and noting that Mother’s cognitive impairment existed pri- or to the original custody decree, the trial court found no substantial and continuing change in circumstances to justify modification of custody under § 452.410. However, the court found that Father was in a superior position to provide academic support for Son and, therefore, it was in Son’s best interest for Father to do so on a consistent basis. Thus, relying on § 452.400.2 governing visitation, the court modified the residential custody schedule for Son to live with Father during the school year and with Mother over the summer. Mother was awarded weekend visi[500] tation during the school year, all spring and Christmas vacations and certain federal holidays, and other federal holidays in alternating years. Father was awarded weekend visitation and one full week during the summer and the alternating federal holidays. Finally, the court ordered each party to pay their respective attorney fees and ordered Father to pay all GAL fees.

Father appeals, asserting that the trial court abused its discretion by granting Mother all Christmas and spring vacations and certain federal holidays and by ordering Father to pay all GAL fees. Mother cross-appeals asserting that the trial court erred in substantially modifying the parties’ residential custody schedule without a change in circumstances and without evidence that it was in Son’s best interest.

Standard of Review

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J.T.P. v. P.F., 440 S.W.3d 497, 2014 Mo. App. LEXIS 589, 2014 WL 2191011 (Mo. Ct. App. 2014).

440 S.W.3d 497 (J.T.P. v. P.F.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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