Senciboy v. Thorpe

947 S.W.2d 116, 1997 Mo. App. LEXIS 1118, 1997 WL 342789
CourtMissouri Court of Appeals
DecidedJune 24, 1997
DocketNos. WD 52412, WD 52450
StatusPublished
Cited by5 cases

This text of 947 S.W.2d 116 (Senciboy v. Thorpe) 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
Senciboy v. Thorpe, 947 S.W.2d 116, 1997 Mo. App. LEXIS 1118, 1997 WL 342789 (Mo. Ct. App. 1997).

Opinion

BERREY, Judge.

This appeal concerns the denial of appellant John Earl Senciboy’s motion to modify a decree of dissolution regarding child custody. We affirm.

Appellant and respondent Julie Kay Thorpe were married on December 28, 1985. On January 3,1987, the couple’s only child, a son named Blake, was bom. The Ray County Circuit Court entered a decree of dissolution on October 26,1989. The decree awarded respondent custody of Blake and granted appellant reasonable visitation. The decree further ordered appellant to pay $180 for and as monthly child support.

On January 4, 1994, appellant filed his motion to modify and requested that custody of Blake be transferred to him. Appellant also sought to give respondent reasonable visitation rights and indicated that he did not require child support from respondent. Respondent later filed a cross-motion seeking increased child support and an award of attorney fees.

Appellant is a high school graduate. He is employed full-time as a construction laborer and his work is concentrated during warm weather. If work is too slow during cold weather he receives unemployment compensation, a practice common in the construction industry. He has remarried and fives with his wife, Teresa, in Orrick, Missouri. Tere[118]*118sa’s two teen-aged children from a previous marriage reside with them. Teresa’s daughter’s son, Brandon, and his father, Anthony, also live with appellant. Teresa does not work outside the home. She receives child support for her teen-aged children, but the child support does not cover all of her support-related expenses.

Respondent did not complete high school. She works full-time at a fast food restaurant in Rolla, Missouri. Her sister-in-law and a neighbor provide child care for Blake while she is at work. After the divorce in 1989 and until trial in 1995, respondent, along with Blake, resided at nine different addresses. They resided at one address in Rolla for four years immediately following the divorce. Thereafter, they moved frequently, staying at a particular address for periods ranging from three weeks to eleven months. Most of these moves were within Rolla.

During this time, respondent has had relationships with several men who stayed overnight. Blake was at home during some of these overnights. Respondent married one of these men, Max Thorpe, on June 3, 1994. They were divorced five or six months later. Blake knew and interacted with Mr. Thorpe and all but one of the other men respondent dated. On July 8, 1995, respondent gave birth to Blake’s half-brother, Brendon. Brendon’s father,'Dale Letz, does not support his son.

Blake has attended three elementary schools. He started kindergarten in Wentz-ville, Missouri and then was transferred to Mark Twain Elementary School in Rolla. He attended Truman Elementary School in Rolla for first grade and Mark Twain for second grade. Despite respondent’s frequent address changes, Blake has transferred schools during the school year only once and that occurred when he was in kindergarten.

At the time of trial, Blake was attending third grade at Truman Elementary School. Blake’s teacher, Kelly Carter, testified regarding Blake’s behavior and academic performance during elementary school. She stated that Blake behaved “pretty good” and received good grades in first grade. In second grade, however, Blake’s school work declined in several subjects and he scored low on a standardized test. So far in third grade Blake has exhibited behavioral problems, including emotional outbursts on some days. However, his teacher stated that he is “very easy to work with” and that his behavior has improved since the beginning of the school year. Although he still struggles with his school work and has shown signs of attention deficit disorder, a remedial reading class has helped him. Blake’s teacher further stated that she has considered holding him back to repeat third grade. However, she also acknowledged that Blake’s problems have coincided with the instant custody action.

Respondent has attended parent-teacher conferences with all of Blake’s teachers and is aware of his behavioral and academic problems. She has attempted to remedy these problems by reading to Blake, talking with him and his teacher and not permitting him to watch television until his homework is done. Blake’s teacher and appellant have suggested that Blake would benefit from speaking with a counselor. Respondent agrees, but is unable to afford it.

The trial court entered its order overruling appellant’s motion to modify custody. The court’s order, however, did award appellant expanded summer visitation rights. Respondent’s cross-motion was sustained, increasing appellant’s monthly child support to $463.74.1 This amount included an abatement for the one and one-half months Blake spends with appellant in the summer. The order further directed appellant to pay respondent $3,000 for partial attorney’s fees. Finally, the court ordered respondent not to have any “overnight male guests (other than family members) in her home while the minor child is present.”

As this is a court-tried case, we will affirm the judgment of the trial court unless [119]*119there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Guier v. Guier, 918 S.W.2d 940, 946 (Mo.App.1996). In matters involving child custody, an appellate court will give greater deference to the trial court’s judgment than in other cases. Id. In addition, a trial court’s child custody determination is presumed to have been done in the best interests of the child. Taylor v. Taylor, 908 S.W.2d 361, 365 (Mo.App.1995).

Appellant contends the trial court erred in overruling his motion to modify because the court’s action is against the weight of the evidence, erroneously applies the law the facts and constitutes an abuse of discretion. More specifically, appellant argues that 1) respondent’s frequent moves have prevented Blake from enjoying stable home and school environments; 2) respondent has neglected Blake’s behavioral and academic problems; and 3) respondent has demonstrated a lack of moral fitness as Blake’s custodial parent. Appellant suggests that each of these alone are sufficiently severe to make transfer of custody necessary to serve Blake’s best interests. We disagree.

Section 452.410.1, RSMo 1994 provides that custody shall not be modified unless the trial court has jurisdiction 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.” A change in circumstances must be significant, Rice v. Shepard, 877 S.W.2d 229, 231 (Mo.App.1994), such that the child will “substantially benefit” from the transfer of custody. V.L.P. v. J.M.T., 891 S.W.2d 577, 580 (Mo.App.1995). Thus, custody modification will be granted only where the child’s welfare so requires and not upon a showing of slight changes. Guier, 918 S.W.2d at 947.

Appellant relies on Randel v. McClanahan,

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Bluebook (online)
947 S.W.2d 116, 1997 Mo. App. LEXIS 1118, 1997 WL 342789, Counsel Stack Legal Research, https://law.counselstack.com/opinion/senciboy-v-thorpe-moctapp-1997.