Shockey v. Curtis

971 S.W.2d 320, 1998 Mo. App. LEXIS 1114, 1998 WL 299354
CourtMissouri Court of Appeals
DecidedJune 10, 1998
DocketNo. 21920
StatusPublished
Cited by4 cases

This text of 971 S.W.2d 320 (Shockey v. Curtis) 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
Shockey v. Curtis, 971 S.W.2d 320, 1998 Mo. App. LEXIS 1114, 1998 WL 299354 (Mo. Ct. App. 1998).

Opinion

PARRISH, Presiding Judge.

Rodney W. Shockey (father) appeals a judgment modifying child custody provisions in a dissolution of marriage judgment. The trial court changed custody of the parties’ child from father to Sonya L. (Shockey) Curtis (mother). Father asserts there was no showing of a change in his circumstances ,or the child’s circumstances that adversely affected her welfare so that a change of custody was warranted. This court agrees. The judgment modifying the dissolution judgment is reversed.

Mother and father’s marriage was dissolved April 24, 1996, by judgment of the Circuit Court of Ozark County, Missouri. The parties have one child, Andrea Michelle Shockey,1 born June 4,1993. The dissolution [321]*321judgment placed “physical care, custody and control” of Andrea “with [father], subject to visitation by [mother].” The “visitation” terms were set out in detail in an attachment made part of the judgment by incorporation by reference.

Mother filed her motion to modify the dissolution judgment March B, 1997. It was denominated “Respondent’s Petition for Change of Custody.” The motion alleged:

1. That there has been a change of circumstances since the Court originally entered the Amended Findings, Orders And Judgment Of Dissolution Of Marriage on April 24,1996.
2. That RODNEY W. SHOCKEY has remarried. His new wife, ANNETTE SHOCKEY, has three (3) minor children. The three children live with Mr. Shockey and his new wife. The parties [sic] minor child, ANDREA MICHELLE SHOCKEY, lives with Mr. Shockey and his new wife. That Mr. Shockey has another minor daughter by a previous relationship and it is [mother’s] belief that this child is also living with Mr. Shockey and his new wife. If so, this would make five (5) children under the age of 7 years living with Mr. Shockey and his wife.
3. [Mother] herein has also remarried and has no children living with her and her new husband. [Mother] has the time and ability to devote her attention and care to her daughter, ANDREA MICHELLE SHOCKEY.
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The remainder of mother’s motion to modify alleged that father had been represented by the person who was guardian ad litem in the dissolution action sometime before the guardian’s involvement in the dissolution case; that father had failed to pay child support based on an adult abuse order mother obtained prior to the time the dissolution judgment was entered; that the “presumed child support amount calculation worksheet” father filed in the dissolution action did not include all of his income.

Father’s points on appeal assert that mother’s motion to modify failed to plead a claim upon which relief could be granted, that it did not plead facts that amounted to a change of circumstances that would permit modification of the prior dissolution judgment (Point II); and that the modification of the dissolution judgment was not supported by substantial evidence, was against the weight of the evidence and erroneously declared the law (Point I).

Point I asserts three bases for its claims: (1) there was no evidence that a significant change of circumstances had occurred with respect to father, the custodial parent, or the child; (2) the trial court erred in finding a change of circumstances based on the increased size of father’s family; and (3) there was no evidence of any adverse or significant effect on the child as a result of father’s present circumstances.

To prevail on a motion to modify custody, the moving party must show a change of circumstances of the child or of the custodial parent, not the non-custodial parent, which is significant, directly affecting the welfare of the child. In re Marriage of Carter, 794 S.W.2d 321, 324 (Mo.App.1990). Once custody is adjudicated, the presumption is the custodial parent remains suitable and the burden of showing circumstances which warrant a change of custody is on the moving party. In re Marriage of D.L.(B.)M., 783 S.W.2d 473, 474 (Mo.App.1990).

Smith v. Smith, 839 S.W.2d 382, 384 (Mo.App.1992).

Paragraph 3 of mother’s motion to modify asserts changes she, the noncustodial parent, experienced since the dissolution judgment was entered. Circumstances that warrant modification of custody are changes relating to the custodial parent or the child. § 452.410.1, RSMo 1994.

The superior ability of the noncustodial parent to provide for the children is a consideration in determining the best interests of the children, Lisec v. Coy, 793 S.W.2d 173, 177 (Mo.App.1990) (holding that a noncustodial parent’s ability to pro[322]*322vide a stable and comfortable home is not a change in circumstances of the child or custodial parent; however, it is a significant factor in determining how a child’s best interest may be met), which issue is not reached, unless and until a substantial and continuing change in circumstances is first found. Guier [v. Guier], 918 S.W.2d [940] at 947 [ (Mo.App.1996) ]; Sumnicht [v. Sackman], 906 S.W.2d [725] at 727 [ (Mo.App.1995) ].

McCreary v. McCreary, 954 S.W.2d 433, 440 (Mo.App.1997).

Changes in mother’s circumstances would be relevant only if there had been a significant change of circumstances of father or Andrea that warrant change of custody. The change of circumstances of father and Andrea that mother asserted were that father had remarried; that his present wife had three children, all of whom lived in father’s present home. Mother also asserted that father had another child who she believed lived in the same home.

The evidence at trial confirmed mother’s allegations with respect to the size of father’s household. In addition to father, his present wife and Andrea, four other children lived in his home — his wife’s three children and his other child. There was no allegation or evidence, however, of neglect or abuse of Andrea.

Father’s brief calls attention to Betterton v. Betterton, 752 S.W.2d 417 (Mo.App.1988). In Betterton the noncustodial spouse alleged that a substantial increase in the custodial spouse’s family responsibilities was a change of circumstance. The noncustodial spouse alleged that her former husband had remarried and had additional family members living in his household; that he had “substantially increased his family responsibilities in addition to his responsibilities for the care and upbringing of [the parties child].” Id. at 419. In Betterton, as in this case, there was no allegation of neglect or abuse of the child who was the subject of the motion to modify.

Betterton involved a family of six children, a household of eight persons. The trial court found that the increased family responsibility of the custodial parent was a change of circumstance and modified the custody award. The judgment of modification was reversed.

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Bluebook (online)
971 S.W.2d 320, 1998 Mo. App. LEXIS 1114, 1998 WL 299354, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shockey-v-curtis-moctapp-1998.