Walker v. Walker

184 S.W.3d 629, 2006 Mo. App. LEXIS 240, 2006 WL 464127
CourtMissouri Court of Appeals
DecidedFebruary 28, 2006
Docket26559
StatusPublished
Cited by4 cases

This text of 184 S.W.3d 629 (Walker v. Walker) 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
Walker v. Walker, 184 S.W.3d 629, 2006 Mo. App. LEXIS 240, 2006 WL 464127 (Mo. Ct. App. 2006).

Opinion

PHILLIP R. GARRISON, Judge.

Kelvin Dale Walker (“Father”) appeals the trial court’s judgment denying his motion to modify custody regarding his three minor children, contending that substantial and significant changes of circumstances had occurred, that modification was in the children’s best interest, and that the trial court failed to make specific factual findings. We affirm.

On December 28, 2001, the marriage between Husband and Elizabeth Ashley Walker (“Mother”) was dissolved and they were granted joint legal custody of their three minor children, K.W., born July 25, 1989, L.W., born June 16, 1993, and K.D.W., born May 19, 1995. Mother was granted primary physical custody with Father receiving specific periods of custody, including one weekend per month during the school year, holiday visitation and the entire summer vacation when the children were out of school. 1

On June 10, 2002, Father filed a “Motion for Family Access Order” stating that Mother had denied him visitation and telephone contact with the minor children from January 1, 2002, through June 10, 2002. Following a hearing on Father’s motion, the court found that Mother had violated the judgment by denying Father specific visitation and telephone contact. The court ordered that the children be in the custody of Father from July 16, 2002, until August 17, 2002, at which time he was to return the children to Mother.

On May 27, 2004, Father filed a motion to modify the dissolution decree, and a motion for emergency relief and temporary custody of the three minor children alleging that substantial changes of circumstances had occurred with the minor children in that K.W. had been taken into juvenile custody in Prairie County, Arkansas, and Father had not been notified of this action. He sought legal and physical custody of all three minor children with. Mother to have reasonable visitation.

A hearing was held on the motion for emergency relief and temporary custody. The court entered a temporary order affirming the visitation schedule ordered in the dissolution decree and directed that Mother’s summer visitation be exercised only in the State of Missouri. Father was awarded temporary custody of K.W. upon his release from the juvenile authorities in Prairie County, Arkansas.

On Mother’s motion, a guardian ad li-tem, Amy L. Boxx (“Boxx”), was appointed and a hearing was held on Father’s motion to modify. In its judgment the court found that Father had failed to establish a substantial and significant change of circumstances, or that the best interests of the children required modification of the prior custody order. The trial court *632 denied Father’s motion to modify and ordered that the court’s dissolution judgment, with regard to custody and visitation, remain in full force and effect. This appeal followed.

Appellate courts will affirm the trial court’s judgment in custody modification cases if it is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law. In re Marriage of Swallows, 172 S.W.3d 912, 914 (Mo.App. S.D.2005). “We accord a trial court’s judgment greater deference in custody decisions than in other cases.” In re Marriage of Pobst, 957 S.W.2d 769, 771 (Mo.App. S.D.1997). We also defer to the trial court’s determinations as to the credibility of the witnesses. Spradling v. Spradling, 959 S.W.2d 908, 910 (Mo.App. S.D.1998). We may only find that the trial court’s judgment was against the weight of the evidence, as Father urges here, if we are left with “a firm belief that the decree or judgment is wrong.” Murphy v. Carrón, 536 S.W.2d 30, 32 (Mo. banc 1976). 2

In Point I, Father contends that the trial court erred in denying his motion because there was substantial and competent evidence of a change in the circumstances of Mother and/or the minor children, and that modification of custody was in the best interests of the children. He alleges that a substantial change in circumstances had occurred in that 1) minor child K.W. was taken into juvenile custody without Mother informing Father; 2) Mother did not abide by the joint custody plan, in that she interfered with his visitation rights; 3) Mother did not notify Father of the children’s health, education and welfare; 4) Mother’s home environment was not suitable for the children; and 5) Mother did not properly supervise the children, e.g. K.W. was allowed to consume alcohol while in her custody.

At the outset we note that Father fails to direct us to any case that holds that a trial court erred in denying a modification motion under these, or similar circumstances. Child custody modification is governed by Section 452.410.1. 3 This statute requires that the trial court “shall not” modify an existing custody arrangement unless it finds a change in circumstances of the minor children or the custodian and that such a modification is in the best interests of the minor children. Section 452.410.1 (emphasis added). The burden is on the moving party to prove a substantial change has occurred and that a modification of custody is in the best interests of the minor children. McCreary v. McCreary, 954 S.W.2d 433, 439 (Mo.App. W.D.1997). A change in circumstances must be significant before a custody decree can be modified. McCubbin v. Taylor, 5 S.W.3d 202, 207 (Mo.App. W.D.1999). An evidentiary basis to support a finding of changed circumstances must be present in order for the trial court to have jurisdiction to consider making a change in custody. Id. When a trial court does not find a substantial change of circumstances, it never reaches the best interests issue. Wood v. Wood, 94 S.W.3d 397, 405 (Mo.App. W.D.2003).

In this case the trial court found that Father did not meet this burden stating in pertinent part:

The credible evidence shows that certain changes have occurred since the *633 original Dissolution Judgment. For example, both [Father] and [Mother] have violated the terms of that judgment by cohabiting with unrelated adults of the opposite sex while the minor children have been in their custody. However, the Court finds that none of these changes meet the statutory requirement of a substantial or significant change of circumstances, which would mandate a modification of the Court’s prior judgment regarding custody and visitation. Both parties continue to contribute to the numerous difficulties surrounding their relationship and their visitation with the minor children.

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Bluebook (online)
184 S.W.3d 629, 2006 Mo. App. LEXIS 240, 2006 WL 464127, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walker-v-walker-moctapp-2006.