Morales v. Lincoln

367 S.W.3d 174, 2012 WL 1994865, 2012 Mo. App. LEXIS 769
CourtMissouri Court of Appeals
DecidedJune 5, 2012
DocketNo. WD 74146
StatusPublished

This text of 367 S.W.3d 174 (Morales v. Lincoln) 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
Morales v. Lincoln, 367 S.W.3d 174, 2012 WL 1994865, 2012 Mo. App. LEXIS 769 (Mo. Ct. App. 2012).

Opinion

JAMES EDWARD WELSH, Judge.

Nichole D. Morales appeals from a judgment entered in the Circuit Court of Cass County whereby the court adopted its own parenting plan on Morales’s motion to modify a judgment declaring paternity. [176]*176Morales contends that the court’s judgment is against the weight of the evidence because the evidence proved that it is in the child’s best interest for Morales’s address to be utilized for educational and mailing purposes and that Morales is the better parent to provide for the care and well-being of the child. We affirm.

On June 11, 2008, the circuit court dissolved the marriage of Morales and Matthew Morrow. Michael James Lincoln was named Third-Party Respondent in that dissolution proceeding. Lincoln’s paternity of Harley Victoria Lincoln, born December 6, 2005, was established and an order declaring paternity was entered. The court awarded joint legal and joint physical custody of Harley to Morales and Lincoln, with Lincoln’s home designated as the child’s address for mailing and educational purposes. Each parent was awarded parenting time pursuant to a stipulated parenting plan approved by the court and found to be in the best interest of Harley. Physical custody was arranged such that one parent had Harley Monday, Tuesday, Friday, Saturday and Sunday during a given week, with the other parent having physical custody Wednesday and Thursday of that same week. Thereafter, the physical custody schedule switched and, therefore, the parties enjoyed equal time with Harley. No child support was awarded.

On October 13, 2010, Morales filed a motion to modify the paternity judgment. She alleged a substantial and continuing change in circumstances such that the terms of the court’s previous order, regarding child support and parenting times, were unreasonable. Morales asked the court to designate her home as the child’s address for mailing and educational purposes and, therefore, change Harley’s school district from Lincoln’s to Morales’s. Morales also requested that the court award Morales child support and alter the physical custody schedule such that Morales would primarily have physical custody of Harley and Lincoln would have custody on alternating weekends and two consecutive weeks during the summer.

Lincoln denied substantial and continuing changed circumstances but submitted a parenting plan with his suggested physical custody schedule in the event the court found changed circumstances. Lincoln’s plan proposed that his home continue to be the designated address for educational and mailing purposes. Additionally, Lincoln proposed that Morales receive alternating weekends for her custodial periods and six weeks during the summer.

On May 4 and 5, 2011, the court heard evidence, and, on June 1, 2011, the court entered a modification judgment entry. The court found that the evidence did not demonstrate a change in circumstances requiring a change of legal or physical custody. Therefore, the court ordered that the parties continue to share joint physical and joint legal custody of Harley. The court found, however, that due to Harley’s upcoming entrance into kindergarten, Harley’s best interest required a change in the physical custody schedule. The court considered the parenting plans proposed by both parties but ultimately adopted its own. The court ordered that Lincoln’s home be designated as Harley’s address for mailing and educational purposes. The court ordered that Harley spend the majority of time with Lincoln, allowing Morales physical custody on alternating weekends and holidays and seven weeks during the summer. The court additionally ordered Morales to pay Lincoln $130 per month in child support. Morales appeals.

In a custody modification proceeding, we will affirm the circuit court’s ruling “unless there is no substantial evidence to support it, unless it is against the [177]*177weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We view the evidence and all permissible inferences in the light most favorable to the judgment and disregard all contrary evidence and inferences. Bridgeman v. Bridgeman, 63 S.W.3d 686, 689 (Mo.App.2002). We recognize the circuit court’s superior position to judge the witnesses’ credibility, sincerity, character, and other intangibles that are not apparent from the transcript. Krost v. Krost, 133 S.W.3d 117, 119 (Mo.App.2004). Pursuant to section 452.410, RSMo Cum.Supp.2011, the court may not modify custody unless it finds a change in circumstances of the child or his custodian and that modification is necessary to serve the best interests of the child. See Russell v. Russell, 210 S.W.3d 191, 196-197 (Mo. banc 2007). We do not “require a ‘substantial’ change from the circumstances of the original judgment where the modification sought is simply a rearrangement in a joint physical custody schedule.” Id. at 197.

In her sole point on appeal, Morales contends that the court erred in entering its judgment and adopting its parenting plan because the evidence proves that Morales is in the best position to provide for Harley’s care and well-being and that, Morales had already been the parent to do so. Morales additionally claims that it is in Harley’s best interests for Morales’s address to be designated for educational and mailing purposes. We find no error.

Morales, in her motion to modify, set forth several claims to support her allegation that changed circumstances warranted a modification placing the child primarily in her care, changing the child’s school district, and requiring Lincoln to pay Morales child support. After review of the record, we find no evidence that Morales proved any of the allegations in her motion to modify.

Morales claimed in her motion that Lincoln had a change in income that would result in an increase of greater than 20% in child support since the order of paternity. Morales’s evidence, however, showed that Lincoln’s income suffered a decrease each year following the original judgment.

Morales claimed in her motion that she and Lincoln now live in separate school districts and that Harley would soon be attending public schools and that it was in Harley’s best interest for Morales to receive custody for educational and mailing purposes. At trial, Morales testified that she and Lincoln reside in the same school districts in which they resided at the time of the original judgment. At the time of the original judgment, Morales agreed that Harley would attend school in Lincoln’s East Lynn school district and that Lincoln’s home would be designated as the child’s address for mailing and educational purposes.

Morales claimed in her motion that Lincoln had refused to give Morales the opportunity to care for Harley when Lincoln was unavailable to do so himself.1 In Morales’s attempt to prove these allegations, Morales admitted that she, on a regular basis, failed to give Lincoln the right of first refusal when Morales was unavailable to care for Harley.

Morales alleged in her motion that Lincoln had withheld information from Morales that resulted in a breakdown of parental communication.

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Related

Bridgeman v. Bridgeman
63 S.W.3d 686 (Missouri Court of Appeals, 2002)
Murphy v. Carron
536 S.W.2d 30 (Supreme Court of Missouri, 1976)
Russell v. Russell
210 S.W.3d 191 (Supreme Court of Missouri, 2007)
Krost v. Krost
133 S.W.3d 117 (Missouri Court of Appeals, 2004)

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Bluebook (online)
367 S.W.3d 174, 2012 WL 1994865, 2012 Mo. App. LEXIS 769, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morales-v-lincoln-moctapp-2012.