McIntire v. Hake

33 S.W.3d 565, 2000 Mo. App. LEXIS 1494, 2000 WL 1482590
CourtMissouri Court of Appeals
DecidedOctober 10, 2000
DocketWD 57820
StatusPublished
Cited by26 cases

This text of 33 S.W.3d 565 (McIntire v. Hake) 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
McIntire v. Hake, 33 S.W.3d 565, 2000 Mo. App. LEXIS 1494, 2000 WL 1482590 (Mo. Ct. App. 2000).

Opinion

HOWARD, Judge.

Shawn A. Mclntire appeals from the trial court’s judgment modifying the custody order with respect to Patience Mcln-tire, his minor child, by transferring primary physical custody of the child to her mother, Jennifer Hake. Mclntire contends that the trial court erred in 1) modifying the custody decree based on his relocation to Independence, Missouri; 2) finding that he alienated Patience from Hake, interfered with Hake’s visitation rights, and inhibited Hake’s relationship with Patience; 3) holding that custody should be modified based on drug use by him and his wife; 4) finding that his failure to advise Hake of his address and phone number constituted a change in circumstances sufficient to modify custody; 5) finding that his failure to include Hake in decision-making responsibilities warranted a modification of custody; and 6) determining that a substantial change of circumstances sufficient to warrant a transfer of custody had occurred, and finding that the transfer of custody would be in Patience’s best interests.

We affirm.

Facts

Patience Irene Mclntire was born on September 26, 1993. Her parents, Shawn Mclntire and Jennifer Hake, have never been married. At the time of Patience’s birth, both Mclntire and Hake lived with Mclntire’s parents in Versailles, Missouri. Hake eventually moved out of Mclntire’s parents’ home. She now lives in Jefferson City, Missouri.

On June 7, 1996, Mclntire filed a petition for determination of father-child relationship and order of child custody. On September 5, 1996, the trial court entered a judgment awarding Mclntire and Hake joint legal custody of Patience, with Mcln-tire being awarded primary physical custody.

On April 20, 1999, Hake filed an amended motion to modify seeking a transfer of legal and physical custody to her, alleging that a substantial and continuing change had occurred since the original custody order, in that 1) Mclntire moved Patience to Kansas City without prior approval from her or the court; 2) Mclntire failed to keep her informed as to Patience’s activities, including school, daycare, church, and medical procedures; 3) Mclntire failed to provide information concerning health insurance for Patience to her; 4) she was able and willing to care for Patience, and was capable of providing a stable and lov *568 ing environment for Patience; and 5) she believed it was in the best interests of Patience to reside with her, subject to Mclntire’s right of visitation.

On July 28, 1999, the trial court entered its modified judgment, in which it found that a substantial and continuing change of circumstance warranted a modification of custody. The trial court found that the following changes warranted a modification of the original judgment: 1) Mclntire has moved nearly 120 miles from Morgan County, Missouri to Independence, Jackson County, Missouri; 2) Since the original judgment, Mclntire has alienated the minor child from Hake and has interfered with Hake’s visitation rights; 3) Mclntire has sought to inhibit the minor child's relationship with Hake; 4) Mclntire has willfully refused to inform Hake of his address and phone number; 5) Mclntire has failed to include Hake in the decision-making responsibilities of rearing the minor child; and 6) Mclntire and his current wife have admittedly used illegal drugs, including marijuana, since the date of the judgment. The trial court did not modify the original joint legal custody arrangement, but transferred primary physical custody of Patience to Hake. This appeal follows.

Standard of Review

Our standard of review in a custody modification ease is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Jones v. Jones, 10 S.W.3d 528, 532 (Mo.App. W.D.1999). We will affirm the judgment of the trial court unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Id.

In assessing the sufficiency of the evidence, we examine the evidence and its inferences in the light most favorable to the trial court’s order. We defer to the trial court’s assessment of witnesses’ credibility and accept the trial court’s resolution of conflicting evidence. We presume that the trial court reviewed all evidence and based its decision on the child’s best interests.

K.J.B. v. C.A.B., 883 S.W.2d 117, 121-22 (Mo.App. W.D.1994) (citations omitted). “The trial court’s determination in child custody proceedings is given greater deference than in any other type of case.” Brandow v. Brandow, 18 S.W.3d 584, 587 (Mo.App. W.D.2000).

Argument

Section 452.410.1 1 provides, in relevant part, as follows:

Except as provided in subsection 2 of this section, the court shall not modify a prior custody decree unless it has jurisdiction under the provisions of section 452.450 and 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. This court has previously stated that

“[u]nder this subsection, before a court can change physical custody of a minor child as being in his or her best interests, it must first determine that there has been a substantial and continuing change of circumstances of the child or custodian.” Haus-Gillespie v. Gillespie, 998 S.W.2d 842, 846 (Mo.App. W.D.1999); see also Johnson v. Lewis, 12 S.W.3d 379, 383 (Mo.App. W.D. 2000); Landry v. Miller, 998 S.W.2d 837, 840 (Mo.App. W.D.1999). This standard has also been set forth in the southern and eastern districts. See Tilley v. Tilley, 968 S.W.2d 208, 212 (Mo.App. S.D.1998); Maher v. Maher, 951 S.W.2d 669, 672 (Mo.App. E.D.1997). However, the southern district of this court, in In re C.N.H, 998 S.W.2d 553, 556-57 (Mo.App. S.D.1999), recently stated that “a finding of a ‘substantial and continuing change’ in circumstances is not *569 a prerequisite to the modification of custody decrees. The ‘substantial and continuing change’ language is part of § 452.370, which concerns a modification of support. ‘That particular section ... [is] not controlling on a modification [of] custody.’ ” (Citations omitted.) See also Searcy v. Seedo'rff,

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Bluebook (online)
33 S.W.3d 565, 2000 Mo. App. LEXIS 1494, 2000 WL 1482590, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcintire-v-hake-moctapp-2000.