Ross v. Ross

557 S.W.3d 334
CourtMissouri Court of Appeals
DecidedMay 29, 2018
DocketNo. SD 34997
StatusPublished

This text of 557 S.W.3d 334 (Ross v. Ross) 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
Ross v. Ross, 557 S.W.3d 334 (Mo. Ct. App. 2018).

Opinion

DANIEL E. SCOTT, J.-OPINION AUTHOR

Mother appeals a modification of child-visitation provisions.1 We rarely grant relief to a party who leads a trial court one direction, then complains after judgment that the court ruled that way and not differently, which is what we see here:

• Before the hearing, the parties announced that they had agreed on a parenting plan and would provide it to the court.
• Before judgment was entered, Mother notified the court of one concern on visitation and proposed slightly tweaking one clause of the proposed parenting plan to address it.
• After judgment, Mother raised a different complaint-that the visitation provisions violated statutory requirements that Mother knew of all along and that Mother's own proposal would have equally violated-and Mother persists in that claim as her sole point on appeal.

We recognize, at least theoretically, several issues and concerns expressed by the dissent. But we will not fault the trial court for visitation terms that, as to Mother's sole point here, cannot be distinguished from what she asked the court to do. Mother invited any error that she now claims, so we deny her point and affirm the judgment.

Background

The parties' marriage was dissolved in 2007. As modified five years later, the judgment provided for joint physical custody of the children, with Mother's address designated for educational and mailing purposes, and included lengthy provisions *336detailing Father's visitation and parenting time as contemplated by RSMo §§ 452.375.9 and 452.310.8.2

Father sought further modification in 2014, alleging that the children were doing poorly in school and wanted to live with him. In response, Mother proposed a parenting plan that, again, included nearly two pages of provisions detailing visitation and parenting time consistent with §§ 452.375.9 and 452.310.8.

By the time Father's motion was heard in October 2016, all four of the parties' children, who then ranged in age from 12 to 18, resided with Father with Mother's approval. At the beginning of the hearing, Mother's counsel announced that the parties had settled and agreed upon modified custody and parenting-plan terms:

[MOTHER'S ATTORNEY]: Your Honor, we have agreed that the children-that there should be a modification of custody in terms of the fact the children have, one by one, all expressed a desire to live with the father rather than mother, and at various dates they have gone to live with him. But we have agreed that the judgment-previous judgment can be modified so that the father has sole custody of the unemancipated minor children.
THE COURT: Okay. So we've had joint prior, and so now we're going sole physical and legal? Or what are we doing?
[MOTHER'S ATTORNEY]: Right. We had joint legal and physical before, and now the children are going to go stay with the father.
THE COURT: Okay. But it won't be joint then.
[MOTHER'S ATTORNEY]: It won't be joint.
THE COURT: It will be just sole?
[MOTHER'S ATTORNEY]: Correct.
[FATHER'S ATTORNEY]: And that's at mother's request, yes.
THE COURT: All right. All right. Just so I'm clear in regard to that. So that is going to be stipulated by the parties, I'm assuming, then?
[MOTHER'S ATTORNEY]: Yes.
* * *
THE COURT: And I'm assuming that proposed judgment had a parenting plan.
[FATHER'S ATTORNEY]: It does.
THE COURT: All right. And [ ] that's the parenting plan that you all are agreeing upon?
[MOTHER'S ATTORNEY]: Yes.
*337THE COURT: And someone's going to give me a copy of that at some point?
[MOTHER'S ATTORNEY]: Yes.
THE COURT: All right. That would be great.

The hearing proceeded on issues other than the agreed parenting plan, after which the court made a docket entry that "Parties Reach Settlement and Agreement Entered on Record. [Father's attorney] to Prepare Judgment."

Father's counsel sent the judgment form to Mother's counsel, waited months for a response but got none, then submitted it to the court, again copying Mother's counsel. In reply, Mother's counsel advised the court that he had been waiting to see how visitation went through the holidays. Alleging that the children skipped the Thanksgiving visit with Mother and spent only 12 hours with her during Christmas, Mother proposed slightly amending the holiday-visitation provision to read (proposed addition in our italics): "Due to the ages of the children, the holiday schedule shall be at their discretion and as coordinated by the child and the other parent, provided however, that the children shall spend a minimum period of 24 hours with mother during the period of each scheduled holiday visitation. " Voicing no other objection or concern, Mother's proposed provisions for her visiting and parenting time then were as follows:

3. PARENTING TIME: Children, whenever possible and appropriate, need to have frequent, continuing and meaningful contact with both parents. ( Section 452.340.7 RSMo )
Due to ages of the children, visitation shall be at their discretion and as coordinated by the child and the parent.
* * *
6. HOLIDAY SCHEDULE: The holiday schedule allows each parent to share holidays and other special days with their children.
Due to ages of the children, the holiday schedule shall be at their discretion and as coordinated by the child and the parent ["provided however, that the children shall spend a minimum period of 24 hours with mother during the period of each scheduled holiday visitation "].
7. VACATION SCHEDULE: The vacation schedule allows each parent to share vacation time with their children. Each parent may have parenting time with the children during the following vacation periods:
Due to the ages of the children, the vacation schedule shall be at their discretion and as coordinated by the child and the other parent.

The court entered the proposed judgment without adding Mother's suggested further clause. She then moved to amend the judgment, complaining for the first time that its visitation terms were less specific than §§ 452.375.9 and 452.310.8 require. Her motion was overruled by operation of Rule 78.06.

Discussion

On appeal, Mother complains that the court entered a judgment that did not meet § 452.310.8's specificity dictates, and seeks remand for "the trial court to enter a judgment with the statutorily mandated provisions for visitation."

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Cite This Page — Counsel Stack

Bluebook (online)
557 S.W.3d 334, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ross-v-ross-moctapp-2018.