In the Missouri Court of Appeals Eastern District DIVISION TWO
O.H.B. and E.K.B., by next friend S.M.B., and ) S.M.B., individually, ) ED110427 ) Appellants, ) Appeal from the Circuit Court of ) Cape Girardeau County v. ) 21CG-DR00021 ) L.Y.S., ) Honorable Julia M. Koester ) Respondent. ) Filed: March 21, 2023
S.M.B. (hereinafter “Father”) appeals a judgment ordering Father and L.Y.S. (hereinafter
“Mother”) to share joint legal and physical custody of their two minor children and ordering him
to pay $633 per month in child support. Father’s first point claims the judgment is against the
weight of the evidence and misapplies the law by not awarding substantially equal parenting time. 1
1 Father’s claim the circuit court misapplied the law is distinct from his claim the judgment is against the weight of the evidence. Ivie v. Smith, 439 S.W.3d 189, 199 n.11. Father’s first point is therefore multifarious in violation of Rule 84.04(d). Id. We will, however, gratuitously review the point because the argument sufficiently apprises this Court of the basis of Father’s appeal. Lexow v. Boeing Co., 643 S.W.3d 501, 510 (Mo. banc 2022). We remind counsel that within the last year, both this Court and the Missouri Supreme Court have repeatedly dismissed appeals or individual points relied on due to counsel’s noncompliance with the clear, unequivocal, and mandatory briefing requirements in Rule 84.04. See eg., Lexow, 643 S.W.3d at 510; Wilson v. Schmelzer, 653 S.W.3d 913, 917 (Mo. App. E.D. 2022); Gan v. Schrock, 652 S.W.3d 703, 711 (Mo. App. W.D. 2022); Young v. Missouri Dep't of Soc. Servs., 647 S.W.3d 73, 78 (Mo. App. E.D. 2022); Jefferson v. Missouri Dep't of Soc. Servs., 648 S.W.3d 50, 55 (Mo. App. E.D. 2022); Schultz v. Bank of Am. Merrill Lynch Credit Corp., 645 S.W.3d 689, 697 (Mo. App. E.D. 2022) (dismissing appellant’s first point relied on). In his second point, Father claims the circuit court erroneously calculated child support based on
the allegedly incorrect custody determination. We affirm the circuit court’s judgment.
Factual and Procedural Background
Mother and Father are unmarried and have two children, O.H.B. and E.K.B. At the time
of trial, O.H.B was eight and E.K.B was eleven. In 2016, Father moved out of Mother’s residence.
They agreed to an informal shared custody arrangement under which Father had the children every
other weekend. In 2019, they agreed Father would have custody of the children every other
Wednesday through Sunday. They followed that schedule during the two and one-half years
preceding trial.
In January 2021, Father filed a petition for a declaration of paternity, custody and support.
Mother filed a counter-petition seeking a declaration of paternity, custody, and support. Following
a bench trial, the circuit court entered a judgment establishing Father’s paternity, ordering a
parenting plan, and establishing his child support obligation. After Father filed a motion for a new
trial, the court issued an amended judgment granting the parties physical custody of the children
as they agree and providing Father, at a minimum, parenting time from 4:00 p.m. every other
Wednesday until 4:00 p.m. the following Sunday. The court also ordered parenting time for Father
on alternating holidays and alternating weeks during the summer. The court made findings based
on the section 452.375.2 2 factors and found it to be in the best interests of the children for Mother
and Father to share joint legal and physical custody. The court also ordered Father to pay $633
per month in child support. This appeal follows.
2 All statutory citations are to RSMo Supp. 2021.
2 Standard of Review
“We review a bench-tried case under the standard outlined in Murphy v. Carron, 536
S.W.2d 30, 32 (Mo. banc 1976).” Prevost v. Silmon, 645 S.W.3d 503, 511 (Mo. App. W.D. 2022).
Accordingly, the 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.” Id. The
circuit court’s legal conclusions are reviewed de novo. Int. of D.L.P., 638 S.W.3d 82, 96 (Mo.
App. E.D. 2021).
Analysis
1. The judgment is not against the weight of the evidence.
Section 452.375.2 requires the circuit court “determine custody in accordance with the best
interests of the child” by considering the following non-exclusive set of eight factors:
(1) The wishes of the child’s parents as to custody and the proposed parenting plan submitted by both parties;
(2) The needs of the child for a frequent, continuing and meaningful relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child;
(3) The interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child's best interests;
(4) Which parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent;
(5) The child’s adjustment to the child's home, school, and community;
(6) The mental and physical health of all individuals involved, including any history of abuse of any individuals involved….;
(7) The intention of either parent to relocate the principal residence of the child; and
(8) The wishes of a child as to the child’s custodian….
3 The circuit considered the statutory factors and specifically found both parents love the
children, the children are not lacking family time, both parents are capable of working together to
ensure the other has time with children, the children are well-adjusted, there are no allegations of
abuse, and neither party intends to relocate. The court also found Mother’s parenting plan
essentially formalized the plan the parties have used for the preceding two and a half years and
that both parties acknowledged the schedule had been working. Based on these findings, the court
ordered the parties to share joint legal and physical custody, with Father having parenting time
every other Wednesday through Sunday as well as on alternating holidays and alternating weeks
during the summer.
Father claims the judgment is against the weight of the evidence. An against-the-weight-
of-the-evidence challenge presupposes the existence of substantial evidence supporting the
judgment and requires an appellate court to assess the persuasive value of the evidence. Holm v.
Wells Fargo Home Mortgage, Inc., 514 S.W.3d 590, 596 (Mo. banc 2017). Father must show the
circuit court “could not have reasonably found, from the record at trial, the existence of a fact that
is necessary to sustain the judgment.” Ivie v. Smith, 439 S.W.3d 189, 206 (Mo. banc 2014). “The
against-the-weight-of-the-evidence standard serves only as a check on a circuit court’s potential
abuse of power in weighing the evidence, and an appellate court will reverse only in rare cases,
when it has a firm belief that the decree or judgment is wrong.” Id. at 206.
To ensure appellate courts do not intrude on the circuit court’s role as the finder of fact, a
viable against-the-weight-of-the-evidence claim must follow a specific analytical framework.
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In the Missouri Court of Appeals Eastern District DIVISION TWO
O.H.B. and E.K.B., by next friend S.M.B., and ) S.M.B., individually, ) ED110427 ) Appellants, ) Appeal from the Circuit Court of ) Cape Girardeau County v. ) 21CG-DR00021 ) L.Y.S., ) Honorable Julia M. Koester ) Respondent. ) Filed: March 21, 2023
S.M.B. (hereinafter “Father”) appeals a judgment ordering Father and L.Y.S. (hereinafter
“Mother”) to share joint legal and physical custody of their two minor children and ordering him
to pay $633 per month in child support. Father’s first point claims the judgment is against the
weight of the evidence and misapplies the law by not awarding substantially equal parenting time. 1
1 Father’s claim the circuit court misapplied the law is distinct from his claim the judgment is against the weight of the evidence. Ivie v. Smith, 439 S.W.3d 189, 199 n.11. Father’s first point is therefore multifarious in violation of Rule 84.04(d). Id. We will, however, gratuitously review the point because the argument sufficiently apprises this Court of the basis of Father’s appeal. Lexow v. Boeing Co., 643 S.W.3d 501, 510 (Mo. banc 2022). We remind counsel that within the last year, both this Court and the Missouri Supreme Court have repeatedly dismissed appeals or individual points relied on due to counsel’s noncompliance with the clear, unequivocal, and mandatory briefing requirements in Rule 84.04. See eg., Lexow, 643 S.W.3d at 510; Wilson v. Schmelzer, 653 S.W.3d 913, 917 (Mo. App. E.D. 2022); Gan v. Schrock, 652 S.W.3d 703, 711 (Mo. App. W.D. 2022); Young v. Missouri Dep't of Soc. Servs., 647 S.W.3d 73, 78 (Mo. App. E.D. 2022); Jefferson v. Missouri Dep't of Soc. Servs., 648 S.W.3d 50, 55 (Mo. App. E.D. 2022); Schultz v. Bank of Am. Merrill Lynch Credit Corp., 645 S.W.3d 689, 697 (Mo. App. E.D. 2022) (dismissing appellant’s first point relied on). In his second point, Father claims the circuit court erroneously calculated child support based on
the allegedly incorrect custody determination. We affirm the circuit court’s judgment.
Factual and Procedural Background
Mother and Father are unmarried and have two children, O.H.B. and E.K.B. At the time
of trial, O.H.B was eight and E.K.B was eleven. In 2016, Father moved out of Mother’s residence.
They agreed to an informal shared custody arrangement under which Father had the children every
other weekend. In 2019, they agreed Father would have custody of the children every other
Wednesday through Sunday. They followed that schedule during the two and one-half years
preceding trial.
In January 2021, Father filed a petition for a declaration of paternity, custody and support.
Mother filed a counter-petition seeking a declaration of paternity, custody, and support. Following
a bench trial, the circuit court entered a judgment establishing Father’s paternity, ordering a
parenting plan, and establishing his child support obligation. After Father filed a motion for a new
trial, the court issued an amended judgment granting the parties physical custody of the children
as they agree and providing Father, at a minimum, parenting time from 4:00 p.m. every other
Wednesday until 4:00 p.m. the following Sunday. The court also ordered parenting time for Father
on alternating holidays and alternating weeks during the summer. The court made findings based
on the section 452.375.2 2 factors and found it to be in the best interests of the children for Mother
and Father to share joint legal and physical custody. The court also ordered Father to pay $633
per month in child support. This appeal follows.
2 All statutory citations are to RSMo Supp. 2021.
2 Standard of Review
“We review a bench-tried case under the standard outlined in Murphy v. Carron, 536
S.W.2d 30, 32 (Mo. banc 1976).” Prevost v. Silmon, 645 S.W.3d 503, 511 (Mo. App. W.D. 2022).
Accordingly, the 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.” Id. The
circuit court’s legal conclusions are reviewed de novo. Int. of D.L.P., 638 S.W.3d 82, 96 (Mo.
App. E.D. 2021).
Analysis
1. The judgment is not against the weight of the evidence.
Section 452.375.2 requires the circuit court “determine custody in accordance with the best
interests of the child” by considering the following non-exclusive set of eight factors:
(1) The wishes of the child’s parents as to custody and the proposed parenting plan submitted by both parties;
(2) The needs of the child for a frequent, continuing and meaningful relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child;
(3) The interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child's best interests;
(4) Which parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent;
(5) The child’s adjustment to the child's home, school, and community;
(6) The mental and physical health of all individuals involved, including any history of abuse of any individuals involved….;
(7) The intention of either parent to relocate the principal residence of the child; and
(8) The wishes of a child as to the child’s custodian….
3 The circuit considered the statutory factors and specifically found both parents love the
children, the children are not lacking family time, both parents are capable of working together to
ensure the other has time with children, the children are well-adjusted, there are no allegations of
abuse, and neither party intends to relocate. The court also found Mother’s parenting plan
essentially formalized the plan the parties have used for the preceding two and a half years and
that both parties acknowledged the schedule had been working. Based on these findings, the court
ordered the parties to share joint legal and physical custody, with Father having parenting time
every other Wednesday through Sunday as well as on alternating holidays and alternating weeks
during the summer.
Father claims the judgment is against the weight of the evidence. An against-the-weight-
of-the-evidence challenge presupposes the existence of substantial evidence supporting the
judgment and requires an appellate court to assess the persuasive value of the evidence. Holm v.
Wells Fargo Home Mortgage, Inc., 514 S.W.3d 590, 596 (Mo. banc 2017). Father must show the
circuit court “could not have reasonably found, from the record at trial, the existence of a fact that
is necessary to sustain the judgment.” Ivie v. Smith, 439 S.W.3d 189, 206 (Mo. banc 2014). “The
against-the-weight-of-the-evidence standard serves only as a check on a circuit court’s potential
abuse of power in weighing the evidence, and an appellate court will reverse only in rare cases,
when it has a firm belief that the decree or judgment is wrong.” Id. at 206.
To ensure appellate courts do not intrude on the circuit court’s role as the finder of fact, a
viable against-the-weight-of-the-evidence claim must follow a specific analytical framework. The
appellant must:
(1) identify a challenged factual proposition, the existence of which is necessary to sustain the judgment;
4 (2) identify all of the favorable evidence in the record supporting the existence of that proposition;
(3) identify the evidence in the record contrary to the belief of that proposition, resolving all conflicts in testimony in accordance with the trial court’s credibility determinations, whether explicit or implicit; and,
(4) demonstrate why the favorable evidence, along with the reasonable inferences drawn from that evidence, is so lacking in probative value, when considered in the context of the totality of the evidence, that it fails to induce belief in that proposition.
Wille v. Curators of Univ. of Missouri, 627 S.W.3d 56, 66 (Mo. App. E.D. 2021) (quoting Houston
v. Crider, 317 S.W.3d 178, 187 (Mo. App. S.D. 2010)). An argument failing to comply with this
framework “provides no support” for the point on appeal. In Interest of N.L.W., 534 S.W.3d 887,
899 (Mo. App. S.D. 2017) (internal quotation omitted).
In his initial brief, Father argues the circuit court should have awarded him more time with
the children because the court’s analysis of the section 452.375 factors included no negative
findings against him. He argues the sole basis for the circuit court’s custody award was that the
parties had followed the same custody arrangement for the preceding two and one-half years.
Thus, Father concludes “the total sum of facts … contained within the judgment” were
“insufficient” to support the judgment.
Father’s argument does not mention or apply the required analytical framework for an
against-the-weight-of-the-evidence claim. His argument focuses on the facts found in the
judgment and summarily concludes those facts are insufficient. Father’s failure to identify the
favorable evidence and unfavorable evidence in the record or demonstrate why the court’s
judgment is based on unpersuasive evidence does not meet the mark. This Court, as a neutral
arbiter, will not parse the record to make an appellant’s argument. Father did not show the circuit
court “could not have reasonably found, from the record at trial, the existence of a fact that is
5 necessary to sustain the judgment.” Ivie, 439 S.W.3d at 206; see also Wille, 627 S.W.3d at 66.
Therefore, Father’s claim the judgment is against the weight of the evidence necessarily fails. 3
2. The circuit court did not misapply the law.
Father’s first point also asserts the circuit court misapplied the law by ordering joint
physical custody without awarding substantially equal time with the children. He relies on Morgan
v. Morgan, 497 S.W.3d 359 (Mo. App. E.D. 2016), for the proposition the parenting plan
incorporated into the judgment does not qualify as joint physical custody pursuant to section
452.375.1(3).
Section 452.375.1(3) defines the term “joint physical custody” as:
[A]n order awarding each of the parents significant, but not necessarily equal, periods of time during which a child resides with or is under the care and supervision of each of the parents. Joint physical custody shall be shared by the parents in such a way as to assure the child of frequent, continuing and meaningful contact with both parents[.]
(Emphasis added). In Morgan, this Court held a judgment establishing a “Siegenthaler Schedule”
awarding a parent physical custody every other weekend, one weekly visit, six weeks during
summer break, and alternating holidays and birthdays was not an award of joint physical custody.
Morgan, 497 S.W.3d at 369-70. Morgan is premised on the conclusion the custody arrangement
at issue did not provide both parents with the requisite “significant, but not necessarily equal,
periods of time” to meet the statutory definition of joint physical custody. Specifically, this Court
reasoned “[two] overnight visitations every fourteen days—is not ‘significant’ custodial time” and,
therefore, does not meet the definition of joint physical custody. Id. at 370.
3 Father supplements his initial brief by attempting, for the first time, to provide the necessary analysis in his reply brief. “Appellate courts are generally precluded from addressing assertions made for the first time in a reply brief because a respondent has no opportunity to address the argument.” Coyne v. Coyne, 17 S.W.3d 904, 906 (Mo. App. E.D. 2000) (citing Berry v. State, 908 S.W.2d 682, 684 (Mo. banc 1995)). This Court therefore declines to address Father’s arguments made for the first time in his reply brief.
6 Morgan is materially distinguishable from this case. First, unlike Morgan, where the
dissolution decree failed to state whether physical custody was joint or sole, the judgment in this
case expressly provides Mother and Father shall have joint legal and physical custody. The circuit
court’s designation of the custodial arrangement as joint physical custody is important because this
Court “must give weight to the prior child custody decree's designation of the physical custody
arrangement so long as said designation complies with the statutory definition of joint physical
custody.” Morgan, 497 S.W.3d at 368–69 (citing Russell v. Russell, 210 S.W.3d 191, 197 (Mo.
banc 2007)).
Second, unlike Morgan, the circuit court’s express designation of joint physical custody is
consistent with the fact the court awarded Father significantly more custodial time than did the
judgment in Morgan. While the parent in Morgan had custody for two nights every 14 days, Father
has twice that amount, having physical custody of the children four nights every 14 days, in
addition to alternating holidays and alternating weeks during the summer. Under these
circumstances, this Court declines to hold Father’s custodial time is so insignificant that he does
not, as a matter of law, share joint physical custody of the children. Point I is denied.
3. The circuit court’s child support order is not erroneous.
In support of his second point, Father argues the circuit court’s child support award “will
be erroneous upon correction” of the custody issue raised in Point I. This argument is contingent
on the success of the first point. Because Father’s first point lacks merit, his second point
necessarily fails. Point II is denied.
7 Conclusion
We affirm the circuit court’s judgment.
Renée Hardin-Tammons, Judge
Lisa P. Page, P.J. and Thomas C. Clark, II, J., concur.