Stanton v. Abbey

874 S.W.2d 493, 1994 Mo. App. LEXIS 400, 1994 WL 66690
CourtMissouri Court of Appeals
DecidedMarch 8, 1994
Docket63708
StatusPublished
Cited by28 cases

This text of 874 S.W.2d 493 (Stanton v. Abbey) 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
Stanton v. Abbey, 874 S.W.2d 493, 1994 Mo. App. LEXIS 400, 1994 WL 66690 (Mo. Ct. App. 1994).

Opinion

GRIMM, Presiding Judge.

Mother appeals the trial court’s order modifying a decree of dissolution. She raises nine points. They relate primarily to the extent, timing, and expense of temporary custody; the imputation of income to her in determining the child support amount; and the awarding of income tax exemptions. We modify and affirm.

I. Background

The parties’ marriage was dissolved on May 1,1990. The dissolution decree incorporated the parties’ separation agreement. Pursuant to the agreement, mother was awarded primary legal and physical custody of their four minor children. However, father received periodic temporary custody, including six weeks each year, alternate weekends and a mid-week evening, and various holidays.

Also, in accordance with the agreement, the court ordered father pay child support of $562.50 per child, for total support of $2,250 per month. Further, the agreement gave each party the right to claim two children as exemptions for tax purposes. In addition, the agreement gave mother the option to insure father’s life at her expense.

Thereafter, on January 31, 1992, mother remarried. After her remarriage, mother’s new husband accepted a job in California. As a result, mother filed a motion to modify the prior dissolution decree. In this motion, she sought an order which would allow her to: (1) move children to California, and (2) change the beneficiary in father’s life insurance policy.

In response, father filed a cross-motion to modify. In this motion, he consented to the children’s move to California. However, he sought: (1) joint legal custody of children, (2) a reduction in his child support payments, (3) a change in the visitation and temporary custody schedule, (4) tax exemptions for all *495 four children, (5) an order requiring mother to pay the costs of transporting children for his periods of temporary custody, and (6) clarification as to the sharing of children’s college expenses. The trial court modified the dissolution decree basically in accordance ■with father’s motion.

II. Legal Custody

We consider mother’s first and second points together. They allege the trial court erred in “[1] reopening the question of legal custody because there was no evidence that a change in legal custody was ‘necessary to serve the best interests’ of the children ... [and 2] granting [father] joint legal custody because there was no substantial evidence that the parties were capable of cooperating and functioning as a parental unit.”

A trial court shall not modify a prior custody decree unless it finds: (1) upon the basis of post-dissolution facts that a change has occurred in the circumstances of the children or the custodian, and (2) that the modification is necessary to serve the best interests of the children. Section 452.410.1. 1 If either a parent or child changes residence to another state, such change is sufficient to allow a court to modify a custody decree. § 452.411. Here, the required change in circumstances exists because of children’s relocation to California.

Thus, we turn to whether the modification to joint legal custody was in children’s best interest. Trial courts are vested with broad discretion in determining child custody, because they are in a better position to consider and weigh the evidence bearing on custody and the best interests of the children. Rothfuss v. Whalen, 812 S.W.2d 232, 235 (Mo.App.E.D.1991). We are required to “affirm the decision of the trial court unless firmly convinced the welfare of the children requires a different disposition.” Id.

Mother contends there was no evidence that such a change was necessary to serve children’s best interests. However, this contention overlooks the prior dissolution decree. Although that decree awarded mother both legal and physical custody, it specifically provided:

Each parent shall inform the other of any medical or health problems which arose while they had physical custody of any child, when the information of said medical or health problem would aid the other parent in the care and treatment of said child.
⅜ ⅜ ⅜ ⅝ ⅜ ⅝
Each parent shall have equal access to and, when requested, shall provide information to the other parent regarding the names, addresses, telephone numbers and other necessary facts concerning the providers of any education, medical or health care to the children.
Each parent shall at all times conduct themselves in a manner which reasonably promotes the cooperation and involvement of the other parent on any major matters which concern the educational, medical, religious upbringing, activities, sports, health care and like concerns of the children, keeping in mind that the cooperation and involvement of both parents on such issues is in the best interests of the children. (emphasis added).

The prior dissolution decree made clear that involvement by father in major decisions affecting children was in their best interests. Therefore, it could be argued that the modification granting father joint legal custody merely formalized the essence of the previous decree.

Further, the modification to joint legal custody is consistent with public policy as declared by the General Assembly in § 452.-375.3. Moreover, “[imperative to the best interests of the [children] in a joint custody arrangement are ‘[t]he commonality of beliefs concerning parental decisions and the ability of the parents to cooperate and function as a parental unit.’ ” Mehra v. Mehra, 819 S.W.2d 351, 353 (Mo.banc 1991) (citation omitted).

Mother contends there was no substantial evidence that the parties were capable of cooperating and functioning as a pa *496 rental unit. Thus, she alleges the modification to joint legal custody was not in children’s best interests.

Our review of the record indicates that the evidence conflicted on the extent, ability, and perhaps desire of the parties to cooperate. We defer to the trial court to weigh and resolve evidentiary conflicts. However, suffice to say, the record reveals that father and mother share many common beliefs and have demonstrated an ability to cooperate on many issues, including: religion, education, health care, and leisure activities. Therefore, the trial court did not abuse its discretion in finding that joint legal custody is in children’s best interests. Points denied.

III. Summer Visitation

For her third point, mother alleges the “trial court erred in [1] awarding [father] seven weeks of temporary custody each summer, and [2] ordering that his period of temporary custody begin the day after school ends for the summer, because ... [1] the period of temporary summer custody is too long, and [2] the requirement of an immediate transfer does not give the children sufficient time to adjust to the end of the school year.”

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Bluebook (online)
874 S.W.2d 493, 1994 Mo. App. LEXIS 400, 1994 WL 66690, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stanton-v-abbey-moctapp-1994.