Margolis v. Steinberg

242 S.W.3d 394, 2007 Mo. App. LEXIS 1436, 2007 WL 2990555
CourtMissouri Court of Appeals
DecidedOctober 16, 2007
DocketED 88896
StatusPublished
Cited by7 cases

This text of 242 S.W.3d 394 (Margolis v. Steinberg) 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
Margolis v. Steinberg, 242 S.W.3d 394, 2007 Mo. App. LEXIS 1436, 2007 WL 2990555 (Mo. Ct. App. 2007).

Opinion

KENNETH M. ROMINES, Judge.

Introduction

Appellant Kim Margolis (“Margolis”) appeals from the Judgment of the Circuit Court of the City of St. Louis, the Honorable Michael Mullen presiding, after the Court granted Respondent Thomas Stein-berg’s (“Steinberg”) Motion to Modify. The court found that there had been a substantial and continuing change in circumstances such that 1) Steinberg was awarded joint physical custody of the minor children; 2) Margolis and Steinberg were awarded joint legal custody of the minor children; 3) Steinberg was to pay Margolis $779.00 per month in child sup *397 port; and 4) each party was to pay their own attorney’s fees. We affirm in part and reverse in part.

Factual and Procedural Background

Thomas Steinberg and Sarah Kim Mar-golis were divorced on 12 March 2002. The dissolution decree awarded the parties joint legal custody and Margolis was awarded “primary physical custody of the minor and unemancipated children,” and Steinberg was awarded “temporary physical custody and visitation” pursuant to the Guardian Ad Litem’s proposed parenting plan. The decree ordered Steinberg to pay $1,500 a month in child support. On 7 August 2003, Steinberg filed a motion to modify the dissolution decree. Margolis filed a cross-motion to modify on 5 November 2003. Steinberg filed an amended motion to modify on 13 January 2004, alleging substantial and continuing changes in circumstances.

On 27 June 2006, the court found that there had been a substantial and continuing change in circumstances such that 1) Steinberg was awarded joint physical custody of the minor children; 2) Margolis and Steinberg were awarded joint legal custody of the minor children; 3) Stein-berg was to pay Margolis $779.00 per month in child support; and 4) each party was to pay their own attorney’s fees. Margolis appeals the trial court’s judgment to this Court, raising essentially five points on appeal.

Discussion

Under Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976) ... the decree or judgment of the trial court will be sustained by this Court unless there is no 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. Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is “against the weight of the evidence” with caution and with a firm belief that the decree or judgment is wrong. Id. This Court views the evidence and its inferences in the light most favorable to the judgment, and defers to the trial court’s assessment of the credibility of witnesses. Dunkle v. Dunkle, 158 S.W.3d 823, 832-833 (Mo.App. E.D.2005). This Court presumes that the trial court awarded custody in accordance with the child’s best interests after reviewing all of the evidence and will reverse only if it is firmly convinced that the welfare and best interest of the child require otherwise. Id. The trial court has substantial discretion in admitting evidence, and its evidentiary rulings will not be disturbed absent an abuse of discretion. Romeo v. Jones, 144 S.W.3d 324, 332 (Mo.App. E.D.2004). This Court “give[s] substantial deference to the trial court’s decision to admit or exclude evidence because of its superior opportunity to evaluate the proffered evidence in the context of the trial.” Id. The trial court’s ruling is presumed correct, and the appellant bears the burden of showing abuse of discretion and prejudice. Id. Even if the trial court erroneously excluded evidence, this Court will not reverse the judgment unless it concludes the error “was prejudicial and not harmless and that the error materially affected the merits of the action.” Id.

Significant Change

First, Margolis argues that the court committed plain error regarding the legal and physical modifications because Steinberg failed to sufficiently allege that a substantial change of circumstances had occurred.

Under RSMo. 452.410 in order for a court to modify an existing custody de *398 cree, it must find that on the basis of facts that have arisen since the prior decree, or that were unknown at the time of the prior decree, that a change has occurred in the circumstances of the child or his custodian. Under Heslop v. Sanderson, 128 S.W.3d 214 (Mo.App. W.D.2003), the change in circumstances must be significant, not slight. Margolis argues that Steinberg, in his motion, failed to allege significant changes in circumstances.

According to Margolis, the only allegations of a change in circumstances was that the minor children are now older, would benefit from additional time with their father and that Daniel had requested to spend more time with his father. Missouri courts have held that an increase in age since the original custody determination is not, in and of itself, a sufficient basis for finding a change in circumstances upon which to base a change of custody. In re the Marriage of Eikermann, 48 S.W.3d 605 (Mo.App.S.D.2001). Margolis claims that Steinberg is trying to relitigate issues that were already decided at the trial level, namely physical custody, education and religion. According to Margol-is, Steinberg cannot do this because he has not shown a significant change in circumstances under RSMo. 452.410.

We disagree. While we acknowledge the holding in In re the Marriage of Eikermann, we note that it does not control under these facts. According to Hollins v. Hollins, a breakdown of parental communication and cooperation is sufficient, in and of itself, to constitute a change in circumstances. Hollins v. Hollins, 13 S.W.3d 669, 672 (Mo.App. E.D. 2000). The court found that “phone calls from Father are often abruptly ended by Mother when she has reached a level of discomfort talking to Father, or his calls are simply not answered or returned. Emails from Father to Mother have routinely been discouraged by Mother as she feels it is a form of harassment. Father attempts to communicate more with Mother, and Mother rejects those attempts more often than she accepts them.”

Additional factors a trial court may consider in determining whether or not there has been a change in circumstances are the children’s wishes and increased age. Morrison v. Morrison, 676 S.W.2d 279, 281 (Mo.App.E.D.1979). The court found that “credible evidence adduced from Danny evidences his desire to spend more time with his Father; He admits to having a difficult relationship with his Mother, and he believes time away from her home will aid in the growth of their relationship.” The court also found that “credible evidence adduced from Rebecca supports Dr.

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Bluebook (online)
242 S.W.3d 394, 2007 Mo. App. LEXIS 1436, 2007 WL 2990555, Counsel Stack Legal Research, https://law.counselstack.com/opinion/margolis-v-steinberg-moctapp-2007.