In the Missouri Court of Appeals Eastern District DIVISION ONE
J.T.P., ) No. ED99788 ) Petitioner/Appellant, ) ) Appeal from the Circuit Court v. ) of St. Charles County ) P.F., ) Hon. William T. Lohmar, Jr. ) Respondent/Cross-Appellant. ) FILED: May 27, 2014
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.
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
2 described Mother’s daily activities as typical of a stay-at-home mom. Son’s step-grandfather
completed some college hours (40-50) and had worked as a team leader at General Motors for
nearly 30 years. He described homework 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
3 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 prior 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
visitation 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.
4 Standard of Review
Free access — add to your briefcase to read the full text and ask questions with AI
In the Missouri Court of Appeals Eastern District DIVISION ONE
J.T.P., ) No. ED99788 ) Petitioner/Appellant, ) ) Appeal from the Circuit Court v. ) of St. Charles County ) P.F., ) Hon. William T. Lohmar, Jr. ) Respondent/Cross-Appellant. ) FILED: May 27, 2014
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.
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
2 described Mother’s daily activities as typical of a stay-at-home mom. Son’s step-grandfather
completed some college hours (40-50) and had worked as a team leader at General Motors for
nearly 30 years. He described homework 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
3 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 prior 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
visitation 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.
4 Standard of Review
On appeal, the trial court’s judgment will be affirmed unless there is no substantial
evidence to support it, it is against the weight of the evidence, or it erroneously declares or
applies the law. Jansen v. Westrich, 95 S.W.3d 214, 217-18 (Mo. App. 2003), citing Murphy v.
Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).
Discussion
We address Mother’s cross-appeal first, as it resolves the central issue and renders
Father’s first point moot. For her first point, Mother contends that the trial court erred by
invoking the visitation statute to modify the custody schedule.
Section 452.410.1 governs custody modifications. It states that the court shall not modify
a prior custody decree unless a change in circumstances has occurred and modification is
necessary to serve the best interests of the child. Section 452.400.2(1) governs visitation
modifications. It states that the court may modify an order granting visitation rights whenever
modification would serve the best interests of the child.
The Missouri Supreme Court clarified the distinction between the two in Russell v.
Russell, 210 S.W.3d 191 (Mo. 2007). There, as here, the parties originally were awarded joint
physical and legal custody. Later, the mother sought a modification of the residential schedule
due to changes in both parents’ work schedules. The trial court granted her motion, relying on
the visitation statute to adjust the parties’ respective residential custody periods. On appeal, the
Court observed that the modification statute “directs courts to consider a modification of any
kind of custody award under §452.410.” Id. at 196. Noting that the parties’ original decree
“labeled the custody provisions as joint legal and physical custody,” the Court held that
application of the visitation statute was error. However, applying the modification statute, the
5 Court found sufficient evidence of changed circumstances since the original decree to warrant
modification of the custody arrangements. Id. at 197.
Russell is instructive by its contrast and supports Mother’s point. Here, as in Russell, the
parties’ original decree awarded joint physical and legal custody and, according to Russell, the
trial court’s application of the visitation statute to adjust residential time is error. However, here,
there was no change in circumstance since the original decree and thus no basis for the
modification under the proper statute, §452.410.
We are further informed by Clayton v. Sarratt, 387 S.W.3d 439 (Mo. App. W.D. 2013).
As in Russell, the parents shared joint physical and legal custody and sought a modification of
the residential schedule due to subsequent changes in their employment and residences. The trial
court properly applied §452.410 and granted modification, and the Western District affirmed.
Again here, Clayton is instructive by its contrast and further supports Mother’s point. Citing
Russell, the court explained, “the standard for modification found in section 452.410.1 applies
when a party seeks to modify the custodial arrangement [referring to sole versus joint custody],
as well as when a party seeks to modify a term related to the custodial arrangement, such as the
parenting time schedule.” Id. at 445. It continued:
In Russell v. Russell, 210 S.W.3d 191, 194 (Mo. banc 2007), the court held that a modification to parenting time is still a modification to the prior judgment, even though it does not change the custodial arrangement itself, and therefore, the party seeking modification must show a change in circumstances pursuant to the standard found in section 452.410.1. Where one party has sole physical custody and the other has visitation, however, a change to visitation requires a showing only that the “proposed change be in the best interests of the child,” and a change in circumstances is not required. Id. at 193; see also §452.400.2. In the present case, the parties have joint custody and seek a modification of the parenting time schedule and residential designation; they do not seek to modify the custodial arrangement itself. Thus, the standard found in section 452.410.1 is appropriate.
Clayton v. Sarratt, 387 S.W.3d 439, 446 FN 16 (Mo. App. W.D. 2013).
6 Guided by the clear edicts of Russell and Clayton, we must conclude that the trial court
erred by applying the visitation statute (§452.400). Rather, the significant change in the parties’
residential custody schedule is subject to the standards of §452.410.1, and those standards are not
satisfied here. According to the trial court’s own findings, there had been no change in
circumstances since the original custody decree. “If the trial court does not find a substantial
change of circumstances, it never reaches the best interests issue.” Hall v. Hall, 345 S.W.3d 291,
296 (Mo. App. S.D. 2011).
Even had the trial court found a change in circumstances and thus properly reached the
best interests issue, its finding that such a drastic change in the residential schedule was in Son’s
best interest is not supported by the evidence and is against the weight of the evidence (Mother’s
third point). We are mindful that our standard of review requires great deference to the trial
court in determining a child’s best interests. Noland-Vance v. Vance, 321 S.W.3d 398, 403 (Mo.
App. S.D. 2010) (greater deference given in custody determinations than in other cases). Our
role is to determine whether the record contains sufficient evidence to support the trial court’s
assessment, accepting all evidence and inferences favorable to the judgment. H.J.I. by J.M.I. v.
M.E.C., 961 S.W.2d 108, 115 (Mo. App. W.D. 1998). We will not reverse the trial court’s
judgment unless we are left with the firm belief that the trial court was wrong. Id. at 116. Alas,
we hold that belief here.
The trial court’s sole justification for the upheaval in Son’s routine was, as the court
phrased it, “to allow Father the opportunity to provide that [academic] support on a consistent
basis throughout the child’s academic year.” (emphasis added) We are troubled that the trial
court framed the issue in terms of Father’s opportunity rather than Son’s need. Moreover,
neither of the experts, nor the GAL, opined that Son’s academic support at Mother’s house was
7 deficient, or that Father’s support was superior, or that such a consideration supersedes other
aspects of parenting. Academic prowess is not universal among good parents. As Dr. Rosen
explained, a parent’s ability to teach a child academic subject matter is less important than the
parent’s engagement in the child’s education (e.g., ensuring attendance, setting expectations,
enforcing study time). Additionally, Rosen cautioned against unnecessary changes in a child’s
routine and, importantly, the GAL clearly opposed any change in the existing residential
schedule. GAL Tillman testified as follows:
So from what I can see … I don’t see that a change at this point would be in the child’s best interests. I think it’d be in the child’s best interest to remain at the schedule he has. … If the court is going to consider giving father additional time and moving school districts for the child, I think that’s a pretty substantial change, and we don’t have any … evidence that I’ve seen to show that (a) the child needs that extra educational attention or that (b) such a change would help him flourish in any way. The child seems to be doing quite fine in school at this point.
While generally the trial court is free to assign weight to the evidence and credibility to the
witnesses as it deems proper, here the court’s best interest finding is not supported by any
substantial evidence and is against the weight of the evidence. Mother’s points I and III are
granted. We need not reach her remaining points.
GAL Fees
Father asserts that the trial court abused its discretion by ordering him to pay the entirety
of GAL fees. In support of his position, Father argues that the parties’ respective incomes are
similar, so the GAL fees should be shared equally. This argument is simply inadequate to
overcome our standard of review. “A reviewing court should not disturb the trial court’s award
of guardian ad litem fees absent an abuse of discretion.” S.I.E. v. J.M., 199 S.W.3d 808, 822
(Mo. App. S.D. 2006). “An abuse of discretion is committed if the trial court’s decision defies
logic under the circumstances, is sufficiently arbitrary and unreasonable to shock the conscience
of the court, and exhibits a dearth of careful consideration.” Id.
8 Here, the trial court appointed the GAL upon Father’s motion alleging that Mother was
neglectful and uncooperative and was attempting to alienate Father from Son. While we do not
question Father’s good faith, ultimately those allegations would prove unsubstantiated at trial.
Neither expert expressed any concern about Mother’s fitness as a parent. GAL Tillman testified
that son was very happy and well bonded to both parents. “When ordering the payment of
guardian ad litem fees, the court may consider the circumstances which necessitated the
appointment.” Noland-Vance, 321 S.W.3d at 426 (assessing GAL fees to parent who made
unsubstantiated allegations of abuse and neglect). The trial court’s assessment of GAL fees to
Father was not arbitrary or unreasonable and does not shock the conscience of this court. Point
denied.
Result
The trial court’s judgment is reversed.
__________________________________ CLIFFORD H. AHRENS, Judge
Roy L. Richter, P.J., concurs. Glenn A. Norton, J., concurs.