Jamie Morgan v. Justin Morgan

In the Missouri Court of Appeals
Eastern District
DIVISION FOUR
JAMIE MORGAN, ) ED103426
)
Appellant, ) Appeal from the Circuit Court of
) St. Charles County
v. ) 1011-FC04278-01
)
JUSTIN MORGAN, ) Honorable Jack Banas
)
Respondent. ) Filed: August 30, 2016
This is an appeal by Jamie Morgan ("Mother") from the trial court's judgment modifying
a previous judgment dissolving her marriage to Justin Morgan ("Father"). We affirm.
BACKGROUND
On or about April 11, 2011, the marriage as between Mother and Father was dissolved
pursuant to a consent judgment ("Dissolution Judgment") entered by the Circuit Court of St.
Charles County. Therein, the court awarded Mother and Father joint legal custody of their two
minor children born of the marriage: K.M. (then age 6) and O.M. (then age 4) (collectively,
"Minor Children"). Additionally, Mother was awarded "primary physical custody . . . subject to
[Father's] rights of temporary custody and visitation pursuant to the Parenting Plan." The
Dissolution Judgment also awarded Mother $935 per month as and for the support of two
children to be paid by Father.
Pursuant to the Dissolution Judgment, during the school year, Father was awarded
physical custody of Minor Children every other weekend (beginning Friday at 6:00 P.M. and
ending on Sunday at 6:00 P.M.) and one weekly visitation (beginning at 5:00 P.M. and ending at
8:00 P.M. on the same evening). During summer break, Father's weekly visitation converted to a
weekly overnight visitation, in addition to the continued every other weekend schedule. Further,
during summer break, Father was awarded six weeks (to be exercised in two-week intervals) of
custody. Throughout the year, Mother and Father alternated holidays and birthdays. At all other
times therein, Mother was awarded physical custody of Minor Children.
Two years after the entry of the Dissolution Judgment, on April 12, 2013, Father filed a
motion to modify the Dissolution Judgment in which he sought sole legal custody, sole physical
custody, and other relief. Mother filed a cross-motion to modify, seeking sole legal custody, a
modification of father's visitation, and other relief. Mother also filed a cross-motion for
contempt in which she sought, inter alia, interest on father's past-due child support. A Guardian
ad litem was appointed ("GAL").
After trial, the trial court awarded, inter alia, Father sole legal and sole physical custody
of Minor Children, with rights of visitation afforded to Mother ("Modification Judgment"). In
effect, Mother was awarded almost the exact amount of physical custody as Father was
previously awarded under the Dissolution Judgment. Furthermore, the Modification Judgment
ordered Mother to pay Father $236 per month as and for the support of two children. Mother
was also ordered to pay approximately $4,500 of Father's attorney's fees.
This appeal now follows.
2
DISCUSSION
Mother contends, in four separate points on appeal, the trial court erred in entering the
Modification Judgment. Specifically, Mother claims the Modification Judgment improperly
adjudicated physical and legal custody of Minor Children, child support arrears, and attorney's
fees. We will discuss, in considerable detail, the particulars of each point throughout the
analysis.
Standard of Review
The applicable standard of review requires this court to affirm the trial court's judgment
unless it is not supported by substantial evidence, is against the weight of the evidence, or
erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976);
see also Dawson v. Dawson, 366 S.W.3d 107, 112 (Mo. App. W.D. 2012). The trial court's
determination is given greater deference in child custody cases than in other cases. Huffman v.
Huffman, 11 S.W.3d 882, 885 (Mo. App. W.D. 2000); Beshers v. Beshers, 433 S.W.3d 498, 505
(Mo. App. S.D. 2014) ("An appellant seeking to reverse a trial court's ruling concerning custody
of a child has to overcome a high standard of review.").
The trial court is in a superior position to weigh all the evidence and render a judgment
based upon that evidence; as such, the judgment is to be affirmed under any reasonable theory
supported by the evidence. Love v. Love, 75 S.W.3d 747, 754 (Mo. App. W.D. 2002). "The
trial court's determination of custody will not be disturbed on appeal unless this court is firmly
convinced it is erroneous and the award is against the child's best interests[.]" Bather v. Bather,
170 S.W.3d 487, 492 (Mo. App. W.D. 2005).
3
Analysis
Point I: Modification of Physical Custody
In her first point on appeal, Mother contends the trial court erred in entering the
Modification Judgment and ordering a change in sole physical custody of Minor Children from
Mother to Father. Specifically, Mother maintains the trial court's determination is against the
weight of the evidence, in that the trial court: (1) was "overly-influenced" by the GAL's
recommendation regarding the appropriate school district for Minor Children; (2) relied upon
"stale" evidence when assessing Minor Children's school attendance records; (3) failed to
account for or give proper weight to Father's admission that Minor Children were succeeding in
Mother's school district; (4) conferred undue weight to Father's testimony regarding the quantity
of Mother's relocations since the Dissolution Judgment; (5) accorded undue weight to Mother's
failure to provide Father's contact information to the Minor Children's schools; and (6) assigned
undue weight to Mother's unanswered requests for admissions. Ostensibly, Mother's Point I
argues the trial court erred in modifying the physical custody arrangement because said
modification was not in Minor Children's best interest.
It should be noted that although not expressly set forth in a separate point on appeal,
Mother also contends, via her analysis and argument under Point I, the trial court erroneously
declared or applied the law in finding substantial change in circumstances as to Mother (the
custodian under the Dissolution Judgment) or the Minor Children.1 Specifically, Mother argues
the trial court's finding of substantial change of circumstances related to Father, the non-
custodial parent.
1
Mother's Brief, in this regard, violates the "simple and mandatory" Rule 84.04(d), in that Mother fuses two distinct
points. Palmore v. City of Pacific, 393 S.W.3d 657, 662 n.4 (Mo. App. E.D. 2013); see also Rule 84.04(d). Solely
because Father elected not to file a Respondent's brief, we will review both of Mother's arguments which have been
inappropriately merged under Point I, pursuant to this court's discretionary power.
4
A. Physical Custody Modification Standards
Initially, there appears to be significant confusion regarding the standard applicable to the
modification of the physical custody at issue. The confusion springs from both the complex
nature of our custody statutes and appellate court attempts to create clarity in an area of law that
is increasingly challenged by evolving societal standards. We, herein, attempt to provide
precision and simplicity for future trial courts and litigants confronted with motions to modify.
In Missouri, two distinct statutes "govern the modification of prior parenting
arrangements." Russell v. Russell, 210 S.W.3d 191, 196 (Mo. banc 2007); see Sections 452.410,
452.400.2. The separate statutes give rise to differing standards regarding the modification of
physical custody arrangements. We will address each statute, and the modification standards
springing therefrom.
1. Modification Standards
Section 452.410 governs the modification of child custody decrees. Frantz v. Frantz, 488
S.W.3d 167, 175 (Mo. App. E.D. 2016) (citing Russell, 210 S.W.3d at 196). Generally, a
modification of a child custody decree can reasonably be interpreted to apply to those instances
where a court is requested to modify the "custody" designation. Prach v. Westberg, 455 S.W.3d
513, 516 (Mo. App. W.D. 2015). A "custody" designation refers to joint legal custody, sole legal
custody, joint physical custody, and sole physical custody. See Section 452.375.1(1).
Pursuant to Section 452.410, when deciding a motion to modify a child custody decree,
the trial court must engage in a two-step analysis. In re Marriage of Swallows, 172 S.W.3d 912,
914 (Mo. App. S.D. 2005) ("That statute [Section 452.410.1] provides a two-step process that
courts must follow when determining whether or not to modify an earlier custody order."). First,
as a threshold matter, a modification of a child custody decree is justified if "a change has
5
occurred in the circumstances of the child or his custodian" based upon "facts that have arisen
since the prior decree or that were unknown to the court at the time of the prior decree[.]"
Section 452.410.1 (emphasis added). Second, if the trial court finds a change of circumstances
as to the child or his custodian, then the trial court must determine whether a modification "is
necessary to serve the best interests of the child." Id; see also Tienter v. Tienter, 482 S.W.3d
483, 488-89 (Mo. App. E.D. 2016). A finding of a change in circumstances is a precursor to a
finding that the best interests of the child necessitates modification. Tilley v. Tilley, 968 S.W.2d
208, 212 (Mo. App. S.D. 1998).
Typically, uncertainty and perplexity arise as to whether the parent seeking to modify
must prove either a "change in circumstances" or a "substantial change in circumstances." See
Russell, 210 S.W.3d at 196-98. Thus, the recognition of these two related, but distinct, standards
implies Section 452.410 breeds two differing burdens of proof for purposes of motions to
modify. The application of each depends on the modification sought, so as to conform to this
State's declared public policy. We address the application of each burden of proof.
Section 452.410 Statutory Standard
First, the "change in circumstances" burden of proof—or the "Section 452.410 Statutory
Standard"—applies in those instances where the modification sought does not "deprive one
custodial parent of custody altogether." Russell, 210 S.W.3d at 194. Accordingly, by definition,
this "Section 452.410 Statutory Standard" applies in only two circumstances:
(1) Joint Physical Custody to Joint Physical Custody: When a joint physical custodial
parent seeks to modify the physical custody arrangement, but requests that both
parties remain joint physical custodians, the "Section 452.410 Statutory Standard"
applies. Russell, 210 S.W.3d at 196 ("Thus, by definition, a modification of joint
6
physical custody is a custody modification, triggering the application of section
452.410.").
(2) Sole Physical Custody to Joint Physical Custody: When one parent was awarded
sole physical custody in the previous child custody decree (and the other parent was
awarded visitation rights) and a motion to modify is sought to award both parents
joint physical custody, the "Section 452.410 Statutory Standard" applies. Strobel v.
Strobel, 219 S.W.3d 295, 298 (Mo. App. W.D. 2007) ("[A]s our Supreme Court has
recently clarified, the change in circumstances that must be shown need not be
'substantial' where, as here, the modification ordered is from sole custody to joint
custody.").
The reasoning and logic of the "Section 452.410 Statutory Standard" is premised upon
the long declared public policy of this State that children maintain "frequent, continuing and
meaningful contact with both parents after the parents have separated . . . ." Section 452.375.4
(emphasis added); see also Russell, 210 S.W.3d at 197 ("Today, joint physical and legal custody
is the preference in dissolution actions.").
Section 452.410 Case Law Standard
Second, the courts have added to the burden of proof in certain circumstances, requiring a
"substantial change in circumstances"—or the "Section 452.410 Case Law Standard"—when the
modification sought does "deprive one custodial parent of custody altogether." Russell, 210
S.W.3d at 194. Accordingly, by definition, this "Section 452.410 Case Law Standard," similarly,
applies in only two circumstances:
(1) Sole Physical Custody to Sole Physical Custody: When one parent was awarded
sole physical custody in the previous child custody decree (and the other parent was
7
awarded visitation rights) and a motion to modify is sought to award the other parent
sole physical custody, the "Section 452.410 Case Law Standard" applies. Russell,
210 S.W.3d at 197 ("A change from sole custody in one parent to sole custody in
another parent is drastic, and courts rightly conclude that the modification must be
based on a 'substantial' change.").
(2) Joint Physical Custody to Sole Physical Custody: When both parents were
awarded joint physical custody in the previous child custody decree and a
modification is sought to award only one parent sole physical custody (with rights of
visitation to the other parent), the "Section 452.410 Case Law Standard" applies.
The reasoning and logic of the "Section 452.410 Case Law Standard" is premised not
only upon this State's long declared public policy, supra, but also upon the "principles of res
judicata and the concern for finality of judgments." Russell, 210 S.W.3d at 196. Such extensive
modifications in physical custodial arrangements contradict the continuity that shall be valued
for children, necessitating the implication of the legal principle of res judicata and, thereby, the
more rigid burden of proof. Reeves-Weible v. Reeves, 995 S.W.2d 50, 57 (Mo. App. W.D.
1999) (children should not be uprooted from one environment to the next upon slight changes of
the status of either parent).
Section 452.400.2 Modification Standard
Section 452.400.2, in contrast, governs the modification of visitation or "parenting time."
Timmerman v. Timmerman, 139 S.W.3d 230, 234 (Mo. App. W.D. 2004) (en banc) ("A change
of visitation, on the other hand, is governed by section 452.400.2") (abrogated on other grounds);
see also Potts v. Potts, 303 S.W.3d 177, 186 (Mo. App. W.D. 2010) ("Where the only issue, in
8
actuality, is a simple shift in parenting time, it is no longer 'appropriate' to require a showing of a
substantial change in circumstances.").
Pursuant to Section 452.400.2, "to modify a previous order of visitation rights, a court
must merely find that the modification would serve the best interests of the child." Russell, 210
S.W.3d at 196. Unlike Section 452.410, Section 452.400.2 does not require any showing of a
change in circumstances.
Logically, based upon the holding in Russell, Section 452.400.2 is only relevant when the
original custody decree awards one parent sole physical custody and upon a motion to modify, a
parent merely seeks to only alter the parenting time of each parent—not the physical "custody"
designation. Thus, if sole physical custody was awarded in the initial child custody decree, and
the modification judgment does not alter that sole physical custody award (sole physical custody
remains intact for the same parent originally so awarded), but merely adjusts the parenting time
of each parent, said modification would fall under the governance of Section 452.400.2.
2. Summary of Applicable Child Custody Modification Standards
Accordingly, under current Missouri law, there exist three separate and distinct
applicable standards when modifying a physical custody arrangement:
(1) "Section 452.410 Statutory Standard";
(2) "Section 452.410 Case Law Standard"; and
(3) "Section 452.400.2 Standard."
As is self-evident, the type of modification sought dictates the standard and burden.
Accordingly, the proper designation of the prior and modified physical custodial arrangements as
either "sole" or "joint" is crucial when determining the standard to apply when seeking a
modification, as we discuss, infra.
9
B. Determining the Physical "Custody" Designation
For over ten years our appellate courts have, without exception, sternly admonished the
use of "primary physical custody." [C]ustody,' as defined . . . does not include 'primary physical
custody' as a statutorily permissible physical custodial arrangement, only joint or sole physical
custody" is statutorily permissible. Derks v. Surface, 189 S.W.3d 692, 697 (Mo. App. W.D.
2006); see also Loumiet v. Loumiet, 103 S.W.3d 332, 338 (Mo. App. W.D. 2003) (courts and
lawyers alike, formerly, had a tendency to utilize terms such as "primary physical custody,"
"primary physical custodian" and "custodial parent" when joint physical custody was actually
awarded in order to differentiate between the parents and signify which parent had more physical
custody, however such terminology must be abandoned). The conundrum the foregoing
terminology causes both modification courts and appellate courts cannot be overstated.
In the instant matter, the initial child custody decree—the Dissolution Judgment—failed
to classify the physical custody arrangement as either "joint" or "sole." Rather, the physical
custody arrangement reads as follows:
The parties hereto agree that legal custody of the minor children be granted to
both parties and that the primary physical custody, care and control shall be with
Petitioner [Mother] subject to Respondent's [Father] rights of temporary custody
and visitation pursuant to the Parenting Plan . . . .
Moreover, the Modification Judgment did not explicitly denominate the physical custody
arrangement awarded under the Dissolution Judgment.2
In Missouri, the designation of the prior physical custody arrangement and the modified
physical custody arrangement has been problematic.
2
Upon a motion to modify, the court reviews and modifies the most recent child custody decree, regardless of the
number of previous child custody decrees ordered. For purposes of clarity, "prior child custody decree," when used
herein, refers to the child custody decree last ordered.
10
First, in Baker v. Welborn, 77 S.W.3d 711, 716 (Mo. App. S.D. 2002) (abrogated on
other grounds), the Missouri Court of Appeals, Southern District, set forth a paradigm to
determine the applicable classification of the physical custody arrangement when a parent seeks
a physical custody modification. Baker, 77 S.W.3d at 715-16. That court reviewed the
"substance" of the modification and awarded parenting time, rather than the prior child custody
decree's designation of the physical custody arrangement. Id. at 718. Pursuant to Baker, "the
requirements for modifying rights of parents following a dissolution of marriage must be
determined on a case-by-case basis regardless of the terminology used in the judgment that is
sought to be modified." Id. Essentially, the court was not concerned with the terminology given
to the physical custody arrangement used in the prior child custody decree. Rather, the court
focused upon the actual allocation of parenting time awarded in the prior child custody decree in
determining the appropriate designation of the physical custody arrangement.
Second, in Timmerman v. Timmerman, 139 S.W.3d 230 (Mo. App. W.D. 2004) (en
banc), the Missouri Court of Appeals, Western District, explicitly rejected the Baker paradigm.
Timmerman, 139 S.W.3d at 236. Timmerman simply set forth a bright line test to determine the
designation of the physical custody arrangement set forth in the prior child custody decree. Id.
That bright line test merely requires the modification court to review the designation given to the
physical custody arrangement in the prior child custody decree. Id. Accordingly, the court does
not review the allocation of parenting time, but, only the terminology specified. Thus, if the
most recent child custody decree labeled the physical custodial arrangement as "joint," then the
"joint" designation shall be used to determine the applicable modification standard, regardless of
the actual allocation of parenting time. Under Timmerman, the terminology used in the prior
child custody decree matters significantly as it dictates the applicable modification standard. Id.
11
("[A]lthough the designation of either joint or sole physical custody with liberal visitation has
little or no practical effect in most situations, such designation is crucial for modification
purposes.").
Third, in Russell v. Russell, 2006 WL 2251819 (Mo. App. E.D. Aug. 8, 2006)
(hereinafter, "Russell, E.D."), prior to transfer to the Supreme Court, this court also examined
this exact issue. In Russell, E.D., this court, like the Western District, rejected the paradigm
prescribed by Baker, and instead elected to adopt the bright line test drawn in Timmerman.
Russell, E.D., 2016 WL 2251819 at *5. In adopting Timmerman, and rejecting Baker, this court
found that "the Southern District approach [in Baker] leaves the determination of whether to
apply section 452.410.1 or section 452.400.2 until the end of the case[.]" Id. at *5. Although
this court noted the flaws, inconsistencies, and illogical results of both Baker and Timmerman,
we, nevertheless, concluded "the Southern District approach [was] less desirable than the
Western District approach." Id at *4-*5.
Finally, upon accepting transfer of Russell, E.D., the Supreme Court effectively resolved
the distinct appellate split. Russell, 210 S.W.3d at 196. Although Russell did not explicitly cite
to, adopt, or distinguish Baker or Timmerman, the Supreme Court did provide guidance and a
method for determining the modification standard to be applied. Id. Pursuant to Russell, as a
"threshold matter" in determining which modification statute applies—Section 452.410.1 or
452.400.2—the Supreme Court noted that the modification court must review the most recent
custody arrangement to determine if said terminology of the physical custody arrangement "is, in
fact, joint physical custody, as defined by statute." Id. (emphasis added). However, Russell's
analysis ceased there, "because [in that matter] the initial dissolution judgment appropriately
denominate[d] the arrangement as joint physical custody[.]" Id. (emphasis added). Accordingly,
12
if "[t]he original judgment labeled the custody provisions as joint legal and physical custody, and
there is no doubt that the circuit court's description complies with the statutory definition[,]" the
modification court need not review the allocation of parenting time. Id. at 197 (emphasis added).
Essentially, although Russell relied upon the prior child custody decree's designation of
the physical custody arrangement in determining the appropriate modification standard, the
Supreme Court also implied that said designation must be "appropriately" denominated in
compliance with the statutory definition of joint physical custody.3 The Supreme Court merged
the Baker paradigm and the Timmerman bright line test.
Therefore, pursuant to the direction and guidance of Russell, this court holds when a
court confronts a modification of physical custody, that court must give weight to the prior child
custody decree's designation of the physical custody arrangement so long as said designation
complies with the statutory definition of joint physical custody. If the prior child custody
decree's designation of the physical custody arrangement violates the statutory definition, the
court shall "appropriately" designate or classify the physical custody arrangement. See also
Wood v. Wood, 193 S.W.3d 307, 311 (Mo. App. E.D. 2006) ("When the court orders significant
periods of time where the child is under the care and supervision of each parent, the award is one
of joint physical custody, regardless of how the court characterizes it.").
C. Application of Custody Designation to the Dissolution & Modification Judgments
Turning, now, to the physical custody awarded in the Dissolution Judgment, we find the
Dissolution Judgment awarded Father physical custody of Minor Children every other weekend,
one weekly visitation, six weeks during summer break, and alternating holidays and birthdays;
3
"Joint physical custody' means an order awarding each of the parents significant, but not necessarily equal,
periods of time during which a child resides with or is under the care and supervision of each of the parents. Joint
physical custody shall be shared by the parents in such a way as to assure the child of frequent, continuing and
meaningful contact with both parents[.]" Section 452.375.1(3) (emphasis in original).
13
Mother was awarded physical custody at all other times therein. Ostensibly, Father was awarded
what is commonly referred —at least in domestic attorney parlance—as a "Siegenthaler
Schedule."4 McElroy v. McElroy, 910 S.W.2d 798, 805 n.3 (Mo. App. E.D. 1995).
Insomuch as Father was awarded a "Siegenthaler Schedule" in the initial child custody
decree, the modification court was confronted with the issue of classifying that physical custody
arrangement as either joint or sole. As noted supra, pursuant to Section 452.375.1(3), "joint
physical custody" is defined as an arrangement where each parent is awarded "significant, but
not necessarily equal, periods of time during which a child resides with or is under the care and
supervision of each of the parents." See also Clark ex rel. Clark v. Ingram, 380 S.W.3d 607, 608
(Mo. App. W.D. 2012). Conversely, "sole physical custody" is statutorily undefined. Id.
"Given the definition of joint physical custody, however, sole physical custody would logically
encompass custodial arrangements in which one of the parents is not awarded significant periods
of custodial time." Alberswerth v. Alberswerth, 184 S.W.3d 81, 87 n.3 (Mo. App. W.D. 2006)
(citations omitted). Hence, "[t]he determining factor in classifying physical custody
arrangements as either joint or sole is whether the period of physical custodial time awarded to
the parents is deemed 'significant.'" LaRocca v. LaRocca, 135 S.W.3d 522, 525 (Mo. App. E.D.
2006) (citations omitted).
Similar to "sole physical custody," the term "significant" is left undefined by statute.
Generally, in such a scenario, this court reverts to the principles of statutory interpretation. Lutes
4
As an aside, due to the frequency in which a "Siegenthaler Schedule" is either awarded or exploited as a foundation
for settlement negotiations, we briefly reiterate that which has been repeatedly expounded upon by our courts. A
"Siegenthaler Schedule is "not a determination of the 'minimally appropriate' visitation award." Peniston v.
Peniston, 161 S.W.3d 428, 432 (Mo. App. W.D. 2005) (citing Rothfuss v. Whalen, 812 S.W.2d 232, 235 (Mo. App.
E.D. 1991)). Rather, every custody dispute should be determined upon the particular facts and the welfare of the
children. Peniston, 161 S.W.3d at 432; see also Kroeger-Eberhart v. Eberhart, 254 S.W.3d 38, 48 (Mo. App. E.D.
2007) ("Where child custody is at issue, the child's welfare is the primary consideration."). A "Siegenthaler
Schedule" should not be a default standard.
14
v. Schaefer, 431 S.W.3d 550, 556 (Mo. App. E.D. 2014). In the absence of a statutory definition,
"the words used in the statute are given their plain and ordinary meaning." Columbia Athletic
Club v. Dir. of Revenue, 961 S.W.2d 806, 809 (Mo. banc 1998) (overruled on other grounds).
"The dictionary is frequently used as a tool in determining the ordinary meaning of statutory
language, yet, dictionary definitions are not the final source of guidance as the plain and ordinary
meaning of a word does not necessarily equate to its dictionary definition." Lutes, 431 S.W.3d at
556. Here, meaningful insight and context is provided via a review of the Dictionary definition
of "significant." Pertinently, "significant" is defined as "of a noticeably or measurably large
amount[.]" MERRIAM–WEBSTER ONLINE DICTIONARY. 2016. http://
merriamwebster.com (2 Aug. 2016).
In accordance with Rule 73.01(c), we find the modification court determined Mother was
awarded sole physical custody in the Dissolution Judgment. Rule 73.01(c) ("All fact issues upon
which no specific findings are made shall be considered as having been found in accordance with
the result reached."); see, e.g., Fonner v. Lyman, 469 S.W.3d 3, 6 (Mo. App. S.D. 2015) (". . .
Rule 73.01(c) mandates that we consider that the trial court implicitly made such findings of fact
in accordance with its result in modifying the custody provisions of the dissolution judgment.").
The modification court's implicit designation of the Dissolution Judgment's award of sole
physical custody to Mother—wherein Father was awarded 2 overnight visitations every fourteen
days—is not "significant" custodial time. Two overnight visitations does not equate to a
"measurably large amount." Accordingly, the modification court correctly determined a
"Siegenthaler Schedule," or a comparable variation thereof, amounts to "sole physical custody."
We, herein, draw that bright line, and any other designation is erroneous.
15
As we discuss, infra, the Modification Judgment awarded Mother a very similar physical
custody arrangement. Certainly, Mother would never contend she has been awarded joint
physical custody. In fact, we don't believe any reasonable parent would argue 2 or 3 nights out
of 14 nights constitutes "joint physical custody." Pennington v. Marcum, 266 S.W.3d 759, 767
(Ky. 2008) ("This is perhaps too legalistic in a reality-based world. To most people, having
custody means having possession of the child.").
Moreover, this designation is in accord with our State's long declared public policy that
children maintain "frequent, continuing and meaningful contact with both parents after the
parents have separated . . . ." Section 452.375.4 (emphasis added). In fact, this State's public
policy has been recently echoed and reaffirmed by our co-equal constitutional partners in the
legislative and executive branches of government. In its most recent session, our legislative
partners passed House Bill 1550. See H.B. 1550 (2016). Our executive partner signed House
Bill 1550 on July 1, 2016.5 House Bill 1550, amends, inter alia, Section 452.375 to prohibit a
court from "presum[ing] that a parent, solely because of his or her sex, is more qualified than the
other parent to act as a joint or sole legal or physical custodian for the child." Id. at 13. The
legislative intent of House Bill 1550 seeks "to maximize to the highest degree the amount of time
the child may spend with each parent." Id. at 18.
The instant matter does not present this court with the opportunity to determine that
which would actually constitute "joint physical custody." As such, we decline to draw a bright
line test, and reserve resolution of that issue until the facts of such a case so present themselves.
5
House Bill 1550 (2016) becomes effective August 28, 2016. We note that our holding, herein, would not have
been altered had said bill not been passed, in that Section 452.375.4 would remain operative. However, the passage
and signing of House Bill 1550 (2016) lends credence to this court's understanding and interpretation of our
Legislature's attempt to shift public policy in this specific arena.
16
Nevertheless, observing and effectuating this State's avowed public policy (Section
452.375.4), the explicit legislative intent of House Bill 1550 (2016), and ensuring continuity for
all children requires our trial courts to enter a joint physical custody arrangement that is
substantially equal.6 An award of significantly unequal parenting time—such as a "Siegenthaler
Schedule"—requires the trial court to overcome this State's preference for joint physical custody.
Trial courts should heed this State's public policy by awarding "significant" periods of parenting
time to each parent, unless the best interest of the child compels otherwise.
Therefore, we affirm the modification court's implicit finding that the Dissolution
Judgment awarded Mother sole physical custody, with rights of visitation to Father.
D. Application of the Appropriate Modification Standard
Next, having denominated the physical "custody" ordered in the initial child custody
decree as "sole physical custody," this court turns to the modification sought and subsequently
ordered by the trial court.
Father's Motion to Modify prayed that the trial court award him sole physical custody.
The Modification Judgment, awarded Mother physical custody of Minor Children every other
weekend, one weekly dinner visitation, every other week during summer break, and alternating
holidays and birthdays; Father was awarded physical custody at all other times therein. The
Modification Judgment denominated the physical custody arrangement as "sole physical
custody" to Father.
6
A parenting schedule wherein one parent has custody every Monday and Tuesday, and the other parent has custody
every Wednesday and Thursday, with alternating weekend blocks of Friday, Saturday and Sunday, would achieve
both our State's declared public policy and continuity for children. While each parent's time is equal in this
example, we decline to draw it as the bright line for joint physical custody as we note each family is unique and the
facts of each case will dictate the parenting plan in the best interest of the children.
17
Manifestly, the Modification Judgment's physical custody arrangement was merely a
comparable variation of a "Siegenthaler Schedule." Accordingly, pursuant to our analysis supra,
the trial court appropriately denominated this physical custody arrangement as "sole."
In finding that the trial court modified sole physical custody from Mother to Father, the
applicable standard governing the trial court's Modification Judgment is set forth in the "Section
452.410 Case Law Standard," supra. As such, Father carried the burden of evidencing, (a) a
substantial change in circumstances of the child or his custodian and (b) said modification was
necessary to serve the best interests of Minor Children.
Here, the Modification Judgment reveals the trial court found Father met the issue of
substantial change of circumstances as to Minor Children and their custodian.7 Upon said
finding, the court then determined the physical custody arrangement upon consideration of the
Minor Children's best interests by analyzing all relevant factors, including those set forth in
Section 452.375.2. In fact, the trial court extensively addressed each of those eight factors and
provided numerous reasons for the ordered physical custody arrangement in its Modification
Judgment. These reasons include, but are not limited to: no allegations of abuse or neglect;
Minor Children would benefit from frequent, continuing, and meaningful relationships with both
parents, especially now that Minor Children are older; Mother demonstrated an unwillingness
and inability to actively perform her functions as Mother, especially in the area of education;
Mother had relocated several times since the entry of the Dissolution Judgment; Mother
permitted Minor Children to have excessive absences and tardies from school (albeit, with
improvements); Mother withheld information from Father regarding Minor Children's
7
On appeal, Mother argues the substantial change in circumstances related to only Father, the non-custodial parent.
However, Mother's contention is without merit. The substantial change in circumstances related to both Mother and
Minor Children as documented herein.
18
educational needs; Mother failed to provide Father's contact information to Minor Children's
school; and Mother objected to vaccinating Minor Children, based upon religious beliefs.
Now, on appeal, Mother requests this court to reweigh certain evidence, or give no
weight thereto, and determine physical custody in manner differently than the trial court.
However, "[a] trial court's custody determination is afforded greater deference than other
decisions." McGahan v. McGahan, 237 S.W.3d 265, 269 (Mo. App. E.D. 2007). We grant the
trial court broad discretion and do not reweigh the evidence, even if the evidence may have
supported another conclusion. Dunkle v. Dunkle, 158 S.W.3d 823, 832-33 (Mo. App. E.D.
2005). This court will not reverse a trial court's child custody determination unless we are
"firmly convinced" that the welfare of the child requires an alternative arrangement. Siegfried v.
Remaklus, 95 S.W.3d 107, 111 (Mo. App. E.D.2001); see also Mahoney v. Mahoney, 162
S.W.3d 512, 517 (Mo. App. W.D.2005) ("we proceed under the presumption that the trial court
reviewed all evidence and based its decision on the child's best interests") (citations omitted). If
evidence does not "clearly preponderate in favor of either parent, we will reverse the trial court's
award only when there has been an abuse of discretion." Gulley v. Gulley, 852 S.W.2d 874, 876
(Mo. App. E.D. 1993) (emphasis added).
Not only do we fail to harbor any belief that "firmly convinces" us that a different
physical custody arrangement serves the best interests of the Minor Children, but we are firmly
unconvinced a different physical custody arrangement would be appropriate under these given
facts. Even if we were to exclude the trial court's reliance upon Mother's unanswered Requests
for Admissions and the GAL's school district recommendation, we do not find the trial court
abused its discretion as there is other competent and substantial evidence for the Modification
19
Judgment. The trial court determined, after the presentation of an abundance of evidence, an
award of sole physical custody to Father was in the best interest of Minor Children.
Mother's Point I is denied.
Point II: Modification of Legal Custody
In her second point on appeal, Mother avers that the trial court erred in entering the
Modification Judgment by awarding Father sole legal custody of the Minor Children.
Specifically, Mother contends the trial court's determination erroneously declared or applied the
law in finding a change in circumstances as to award Father sole legal custody. Moreover,
Mother contends that awarding Father sole legal custody was against the weight of the evidence,
in that the trial court: (1) erroneously overcame the presumption of joint legal custody by
unjustified reliance upon the litigants' inability to share parental decisions; (2) failed to account
for or give proper weight to the GAL's joint legal custody recommendation;8 and (3) conferred
undue weight upon the "minor" conflicts between Mother and Father.
Identical to the Section 452.410 Case Law Standard for modifying physical custody,
when seeking a modification of legal custody, the parent seeking the modification must
demonstrate (a) a substantial change in circumstances of the child or his custodian and (b) if the
trial court finds a substantial change of circumstances as to the child or his custodian, then the
trial court must determine whether a modification is necessary to serve the best interests of the
child. S.I.E. v. J.M., 199 S.W.3d 808, 816 (Mo. App. S.D. 2006).
The "breakdown in communication and cooperation alone is sufficient to constitute a
change of circumstances warranting the modification of legal custody." Mehler v. Martin, 440
8
Mother's argument in this regard lacks merit. "Where the GAL does make a recommendation, the trial court is not
bound by that opinion. The trial court has sole responsibility for determining custody." In re Marriage of Harris,
446 S.W.3d 320, 330 (Mo. App. S.D. 2014) (internal citations omitted).
20
S.W.3d 529, 536 (Mo. App. E.D. 2014). The parents' ability and willingness to communicate
and cooperate is "crucial in considering whether joint legal custody is proper[,]" and if the
parents are unable to make shared decisions concerning the welfare of their children, joint
custody is inappropriate and not in the children's best interests. Id.; see also In re Marriage of
Sutton, 233 S.W.3d 786, 790 (Mo. App. E.D. 2007) ("In determining whether joint legal custody
is in the child's best interests, we consider the parties' commonality of beliefs concerning parental
decisions, the parties' inability to function as a parental unit in making those decisions, and the
parties' demonstrated willingness and ability to share the rights and responsibilities of raising
their children.") (internal citations and quotation marks omitted).
However, joint legal custody is not always or necessarily inappropriate "merely because
there is some level of personal tension and hostility" between the parents "provided that there is
substantial evidence that despite this acrimony the parties nonetheless have the ability and
willingness to fundamentally cooperate in making decisions concerning the child's upbringing."
McCauley v. Schenkel, 977 S.W.2d 45, 50-51 (Mo. App. W.D. 1998) (emphasis in original).
First, Mother claims that the award of sole legal custody to Father was erroneous because
there existed no substantial change in circumstances, in that the dispute over vaccinating Minor
Children arose prior to or at the time of the Dissolution Judgment. However, Mother fails to
account for the incessant breakdown in communication that has arisen since the entry of the
Dissolution Judgment. Since the entry of the Dissolution Judgment Mother has failed to provide
Father with statutorily mandated notices regarding several of her multiple relocations, Mother
has caused Minor Children to sustain unwarranted absences and tardies from school without
notifications or justifications to Father,9 Mother has failed to provide Father with any
9
Although Minor Children's school attendance ratio increased dramatically over the past year, it is telling that said
increase occurred only after Father filed his Motion to Modify. A parent should not be able to evade the
21
information regarding the medical providers treating Minor Children (if any), Mother often
neglects to inform Father of extracurricular activities for Minor Children, and Mother's
correspondence with Father is unfitting of a cohesive parental relationship, in that Mother
frequently disregards Father's phone calls and texts. Thus, even if this court were to discount the
vaccination dispute, the evidence at trial exposes a serious breakdown in communication and
cooperation—since the Dissolution Judgment—such that the trial court's finding that Mother and
Father cannot make consistent, meaningful, and judicious shared decisions for the benefit of
Minor Children was appropriate. Certainly, this court, like the trial court, notes that Father is not
faultless, but the Modification Judgment is based upon substantial evidence in the record
demonstrating the parties' inability to function as a parental unit. Shockley v. Shockley, 882
S.W.2d 775, 776 (Mo. App. E.D. 1994).
Second, Mother contends the trial court upended this State's public policy preferring joint
legal custody by lending inappropriate weight to Mother's culpabilities versus that of Father's
flaws.
Pursuant to Section 452.375.4 "it is the public policy of this state to encourage parents to
participate in decisions affecting the health, education and welfare of their children, and to
resolve disputes involving their children amicably through alternative dispute resolution."
However, "[t]he preference for joint custody stated in section 452.375 does not mandate a joint
custody award designed to induce parents to find common ground; rather it expresses a
preference in favor of parents who show the willingness and ability to share child-rearing rights
and responsibilities." Eberhart, 254 S.W.3d at 48. The "dominant consideration" for awarding
joint legal custody begins and ends with a custodial arrangement that "best serves the interests of
ramifications of their actions while not under the watchful eye of the court. In fact, a parent's actions while outside
the purview of a court are very probative and revealing, if not more so than while the parent is haled into court.
22
the child." Id. (citations omitted); see, e.g., In re Marriage of Sutton, 233 S.W.3d at 791-93.
Nevertheless, "custody should not be used to reward or punish either party." Eberhart, 254
S.W.3d at 48.
Mother is accurate in her assertion that there exists evidence that both parties
demonstrated a future objective to work together to raise their children. If the trial court had
awarded joint legal custody, said award could or may have been supported by substantial and
competent evidence as well. See, e.g., Frantz, 488 S.W.3d at 177. However, due to the
considerable discretion afforded to the trial court, there also exists substantial and competent
evidence for the trial court's award of sole legal custody to Father. Moreover, there is no
evidence said award was intended to punish Mother; rather the substantial and competent
evidence reveals the trial court found sole legal custody to Father was in the best interest of
Minor Children. "We will not set aside a trial court's judgment of child custody unless we firmly
believe that the decree is wrong and that the child's welfare requires another disposition." In re
Marriage of Sutton, 233 S.W.3d at 789.
Point II is denied.
Point III: Child Support
In her third point relied on, Mother argues the trial court erred in awarding Father a
retroactive credit for Father's child support arrears. Specifically Mother contends the trial court's
award of a retroactive child support credit to Father was either a misapplication of the law or
against the weight of the evidence, in that that trial court: (1) bestowed undue weight upon
Mother's answers to interrogatories propounded by Father regarding daycare expenses; (2) failed
to account for or give proper weight to Father's testimony; and (3) incorrectly determined
sufficient evidence existed so as to provide Father with said credit.
23
For comprehension of Mother's third point on appeal, this court begins by providing a
recap of the applicable portions of the trial court's Modification Judgment. Upon acceptance of
Mother's child support payment history (with statutory interest calculations), the trial court found
Father in arrears of $10,153.72. Furthermore, based upon testimony at trial and Mother's
answers to Father's interrogatories and request for admissions, the trial court determined Mother
did not have day care expenses while this matter was pending.
Accordingly, the trial court concluded Father was entitled to a "retroactive child support
calculation without child care" in the following manner:
13. The Court therefore computes Father's retroactive credit as follows. The
Judgment of April 11, 2011 included child support of $935.00 per month which
included $625.00 per month in day care [expenses]. The Consent Order on
October 30, 2014 (Ex. P) computed child support of $386.00 per month with no
day care [expenses]. Therefore, Father over paid child support of $549.00 per
month ($935.00 per month – $386.00 per month). [Father] filed his action on
April 12, 2013. As a result, April 12, 2013 until October 30, 2014 is
approximately 18.67 months. The total overpayment of child support during
these months is $10,249.83 ($549 per month x 18.67 months). The arrears with
the Family Support Division as of June 3, 2015 are $9,747.92. To this the Court
adds interest of $1,194.95, for a total child support arrears of $10,942.87. The
Court then credits Father with overpayment of child support of $10,249.83, for a
total arrearage of $693.04. Therefore, Father owes total arrears to Mother of
$693.04 ($10,942.87 – $10,249.83) after adding interest and account for all
credits. The Family Support Division shall update their records accordingly to
reflect same.
Pursuant to Section 452.340.1, the trial court is permitted to order retroactive child
support at the trial court's discretion. Smetana v. Smetana, 963 S.W.2d 1, 2 (Mo. App. W.D.
1998); Lokeman v. Flattery, 146 S.W.3d 422, 430 (Mo. App. W.D. 2004) ("The trial court had
the authority to make a post-dissolution award of child support retroactive to the filing of the
motion to modify."). We reiterate that a trial court's decision to award retroactive child support
is within the trial court's "sound discretion" and will not be disturbed absent an abuse of
24
discretion. Laubinger v. Laubinger, 5 S.W.3d 166, 180 (Mo. App. W.D. 1999); see also Franklin
v. Franklin, 213 S.W.3d 218, 227 (Mo. App. E.D. 2007).
We note both the trial court and Mother denominated or described this child support
award as a "credit" in favor of Father. However, the trial court's child support award was merely
a retroactive application of child support. Although the vast majority of appellate cases applying
the retroactive child support statute commences or increases a paying-parent's financial
liabilities, the plain language of the Section 452.340.1, does not prohibit the retroactive award of
child support which decreases a paying-parent's financial liabilities.
On October 30, 2014, Mother consented (via an Interim Order Regarding Custody and
Support) to a reduction of Father's monthly child support. Specifically, therein, Father's child
support liabilities decreased from $935.00 per month to $386.00 per month. This significant
decrease was occasioned, in part, by Mother's lack of childcare expenses. Thus, Mother
voluntarily conceded her lack of childcare expenses as of October 30, 2014.
At trial, Father argued Mother lacked childcare expenses since, at least, the filing of his
Motion to Modify. Accordingly, the trial court was posed the question—which the trial court
could determine at its discretion in adjudicating retroactive child support—as to when Mother
ceased incurring child care expenses. Based upon the evidence proffered during the course of
trial, the trial court determined Mother did not incur childcare expenses during the pendency of
this matter. As such, the trial court retroactively, as permitted by Section 452.340.1, decreased
Father's monthly child support liabilities backdated to the commencement of Father's Motion to
Modify, filed April 12, 2013.
Now, on appeal, Mother invites this court to reweigh the evidence and supplant our
judgment for that of the trial court's judgment in regards to when Mother ceased incurring child
25
care expenses. Such an entreaty will not be entertained lest there arises an abuse of discretion.
Smetana, 963 S.W.2d at 2 ("Without a clear showing of abuse of discretion, the circuit court's
determination as to the effective date of a child support will not be reversed.").
"Form 14 expressly provides for allocation of the custodial parent's reasonable work-
related child care costs." M.L.R. v. Jones, 437 S.W.3d 404, 407 (Mo. App. S.D. 2014) (citations
omitted); see also McCormick v. McCormick, 934 S.W.2d 32, 34 (Mo. App. E.D. 1996) ("In
making its Form 14 calculations, the trial court is to determine the custodial parent's reasonable
work-related child care costs, less any federal income tax credit."). Accordingly, "[w]here a
custodial parent establishes actual and necessary child care expenses incurred as a result of
working or attending school, the expenses can be considered in calculating child support."
Stufflebean v. Stufflebean, 941 S.W.2d 844, 847 (Mo. App. W.D. 1997) (emphasis added).
However, the inclusion of an item, such as childcare expenses, on the Form 14 "must be
supported by substantial evidence." McCandless-Glimcher v. Glimcher, 73 S.W.3d 68, 80 (Mo.
App. W.D. 2002). The trial court is granted broad discretion in awarding child support; this
broad discretion includes latitude in determining the need and the appropriate dollar amount
regarding work-related child care expenses. Stufflebean, 941 S.W.2d at 846; see also Glimcher,
73 S.W.3d at 80.
Generally, the parent obligated to pay child support ("paying-parent") "must strictly
comply" with the child support order or seek court-ordered modification thereof if circumstances
have changed. Ballard v. Hendricks, 877 S.W.2d 232, 235 (Mo. App. W.D. 1994).
Nevertheless, it is fundamental that "[t]he purpose of child support is to provide for the specific
needs of the children." In re Marriage of Gerhard, 985 S.W.2d 927, 935 (Mo. App. S.D. 1999)
(emphasis added). To accomplish this purpose, the trial court is vested with the "equitable
26
doctrine allowing the obligated parent [paying-parent] credit against arrearages in child support
collection proceedings[.]" Hendricks, 877 S.W.2d at 236. This equitable power is germane and
applicable based on the facts of each case. Id.
Without dispute, both Mother and Father acknowledged Mother incurred some childcare
expenses since the entry of the Dissolution Judgment—the exact amount of those childcare
expenses is left unresolved. However, during trial, Mother failed to proffer credible evidence
that she incurred childcare expenses since Father's filing of his Motion to Modify on April 12,
2013. First, Mother freely admitted, both in her answers to Father's interrogatories and during
trial, that she was not presently incurring childcare expenses. Second, Mother failed to adduce
any evidence or testimony as to the childcare expenses she had incurred during the pendency of
the underlying matter. Third, besides Duchesne Elementary, Mother tendered no other childcare
providers or the exact amounts paid.
Having failed in proffering evidence of childcare expenses at trial, Mother now
endeavors to bootstrap her past childcare expenses in order to meet her evidentiary burden.
Evidence of Mother's childcare expenses in the past do not equate to evidence of childcare
expenses incurred by Mother since Father's filing of his Motion to Modify. Accordingly, the
trial court's retroactive child support award is supported by substantial evidence. Davies v.
Davies, 887 S.W.2d 800, 804 (Mo. App. E.D. 1994) ("When determining the sufficiency of the
evidence, the reviewing court accepts as true the evidence and inferences therefrom that are
favorable to the trial court's decree, and disregards all contrary evidence."). To find in favor of
Mother, this court would be required to reweigh the evidence and supersede the trial court's
witness credibility determinations. That, this court will not do. Shelton v. Shelton, 29 S.W.3d
400, 405 (Mo. App. E.D. 2000) ("Where conflicting evidence exists, deference is given to the
27
trial court which can assess the credibility of the witnesses."); Wennihan v. Wennihan, 452
S.W.3d 723, 730 (Mo. App. W.D. 2015) ("It is not for this Court to reweigh the evidence.").
Furthermore, we find the trial court appropriately employed its equitable powers as to
provide Father with a "credit" for past due child support. The evidence reveals Mother was not
incurring childcare expenses since, at least, the filing of Father's Motion to Modify. For the trial
court to award Mother childcare expenses she did not incur would run afoul of the rationale of
child support.
Therefore, we hold the trial court did not abuse its discretion or misapply the law in
awarding Father a retroactive child support decrease so as to account for Mother's lack of
childcare expenses. See, e.g., Finch v. Finch, 442 S.W.3d 209, 221-222 (Mo. App. W.D. 2014)
(trial court did not abuse its discretion in ordering retroactive child support); Shelton, 29 S.W.3d
at 405.
Point III is denied.
Point IV: Attorney's Fees
In her fourth and final point, Mother alleges that the trial court erred in awarding Father
attorney's fees. Mother first argues the award of attorney's fees was a misapplication of the law
or contrary to the law, in that the trial court's Modification Judgment equivocated as to the legal
authority for the award; specifically, Mother contends it is unclear whether the award of
attorney's fees was pursuant to Section 452.355 or in the nature of sanctions. Next, regardless of
the legal authority utilized by the trial court in awarding attorney's fees, Mother claims the trial
court abused its discretion, in that Mother's income was half of Father's, Mother's conduct during
the pendency of the matter was not inappropriate, and the amount of the award was "overly
punitive."
28
Again, we begin with a summary of the operable parts of the Modification Judgment.
The trial court determined Father's and Mother's attorney's fees were $9,131.13 and $7,650,
respectively. In ordering Mother to pay $4,566 of Father's attorney's fees, the trial court stated
that it was "guided by RSMo. Section 452.355." The trial court considered the parties' financial
resources, the merits of each litigant's case, the conduct of the parties:
The Court does not find that Father failed without good cause to comply with the
Order. Father testified that he fell behind because he had lost his job. Mother
presented no evidence to the contrary that Father had the ability to comply with
the child support order but failed to do so without good cause. The Child Support
Payment History shows that Father made payments toward child support every
month this case was pending. Further, the longest period Father went without
paying child support was two (2) months. The Court takes note of Mother's
conduct during the case, which included Mother's failure to timely file pleadings,
comply with discovery, and continuation of the case on more than one (1)
occasion when the case was set for trial and Father was prepared and ready to try
the case.
"Generally speaking, parties to a domestic relations case are responsible for paying their
own attorney's fees." Ethridge v. Ethridge, 239 S.W.3d 676, 684 (Mo. App. E.D. 2007).
However, pursuant to Section 452.355.1, the trial court is authorized to award attorney fees
arising out of a dissolution proceeding, including modifications thereof. Meierer v. Meierer, 876
S.W.2d 36, 37 (Mo. App. W.D. 1994); see, e.g., Lokeman, 146 S.W.3d at 432 (awarding
attorney's fees in a modification proceeding). The trial court is vested with broad discretion in
awarding attorney's fees under Section 452.355 and that award of attorney's fees will be reversed
only upon a finding of an abuse of discretion. Thorp v. Thorp, 390 S.W.3d 871, 881 (Mo. App.
E.D. 2013); see also Potts, 303 S.W.3d at 196 (we presume the trial court's award is correct); but
see Davis v. Schmidt, 210 S.W.3d 494, 512 (Mo. App. W.D. 2007) ("[A]n award of attorney fees
under section 452.355.1 represents the exception, rather than the rule.").
29
In determining a party's request for attorney's fees under the authority of Section
452.355.1, the trial court must consider "all relevant factors, including [1] the financial resources
of the parties, [2] the merits of the case, and [3] the actions of the parties during the pendency of
the action." Miller v. Miller, 184 S.W.3d 174, 186 (Mo. App. S.D. 2006). The requesting-party
bears the burden of proving his or her entitlement to such an award. Schmidt, 210 S.W.3d at
512.
Here, in awarding Father attorney's fees, the trial court's Modification Judgment
explicitly cites to Section 452.355. The trial court then proceeds to unequivocally discuss the
relevant factors, as prescribed by Section 452.355. See Section 452.355.1 (". . . after considering
all relevant factors including the financial resources of both parties, the merits of the case and the
actions of the parties during the pendency of the action . . . ."). Although the trial court
references Father's request for sanctions, said reference does not spontaneously trigger the award
of attorney's fees to be deemed as adjudged under the auspices of the trial court's inherent power
to impose sanctions. McLean v. First Horizon Home Loan, Corp., 369 S.W.3d 794, 801 (Mo.
App. W.D. 2012) ("A trial court has the inherent power to enforce compliance with its
reasonable order and may, at its discretion, impose sanctions when they are justified, considering
the conduct of the parties and counsel."). Furthermore, the trial court's mere mention of Father's
request for sanctions does not generate confusion or uncertainty as to the authority exercised by
the trial court in awarding attorney's fees. Rather, the trial court's discussion of Father's request
for sanctions distinctly relates to the third factor of Section 452.355.1—the conduct of the parties
during the pendency of the action. The trial court adjudicated its award of attorney's fees
pursuant to Section 452.355.1. There exists no lack of clarity in this regard.10
10
Even if this court were to find merit with Mother's argument, this court would, nevertheless, review the propriety
of the attorney's fees award under both Section 452.355 and as a sanction because this court is afforded the authority
30
Insomuch as we find the trial court ordered Mother to pay a portion of Father's attorney's
fees under Section 452.355.1, we proceed to determine the propriety of the trial court's award
upon a review of "all relevant factors" including those three factors unambiguously specified by
Section 452.355.1. See Section 452.355, supra.
The cynosure of Mother's argument is occupied upon the alleged financial disparity as
between Mother and Father. Although the Modification Judgment found "the parties' financial
resources [to be] relatively similar[,]" the evidence presented at trial reveals disparate financial
circumstances. According to the trial court's own Form 14, Line 3 indicated Father's
proportionate share of the Gross Income was 69% compared to Mother's 31% share. Bothe v.
Bothe, 266 S.W.3d 321, 326 (Mo. App. E.D. 2008) ("The Form 14 is the most comprehensive
assessment of the parties' respective financial standings[.]"). Similarly, Line 1 of the trial court's
Form 14 intimates Father's gross monthly income to stand at $3,533.00, whereas Mother's gross
monthly income rests at $1,590.00. Cf. Thorp, 390 S.W.3d at 881-82 (affirming the trial court's
award of attorney's fees to Mother occasioned by Father's 78.2% proportionate share of the Gross
Income as indicated on the Form 14). Indisputably, Father has a greater ability to pay when
contrasted with Mother; moreover, there was scant evidence regarding Father's inability to pay
his own attorney's fees. McNair v. McNair, 987 S.W.2d 4, 8 (Mo. App. W.D. 1998) (although,
one party's inability to pay his or her attorney's fees is not a requirement for awarding attorney's
fees, one party's greater ability to pay is sufficient to support an award of attorney's fees to the
other party); Crews v. Crews, 949 S.W.2d 659, 672 (Mo. App. W.D. 1997) ("[A] mere showing
of financial inability to pay is not sufficient, in and of itself, to reverse the trial court's award of
to "affirm under any reasonable theory supported by the evidence." Searcy v. Searcy, 85 S.W.3d 95, 99 (Mo. App.
W.D. 2002); see, e.g., Mitalovich v. Toomey, 217 S.W.3d 338, 340 (Mo. App. E.D. 2007) ("We conclude the award
of attorneys' fees was imposed as a sanction for two compelling reasons . . . .").
31
attorney's fees."). Given only these facts, had the trial court exclusively premised its award of
attorney's fees upon the first factor—the financial resources of the parties—said award of
attorney's fees would not have been supported by competent and substantial evidence. Bothe,
266 S.W.3d at 327.
In the instant matter, however, the trial court did not ground its award of attorney fees
upon the financial resources of the parties. In re Marriage of Baker, 986 S.W.2d 950, 958 (Mo.
App. S.D. 1999) ("[T]he financial state of a party seeking an attorney fee award is only one
factor to consider[,]" and the ability or inability of the party seeking attorney's fees to pay "is not
determinative."); see also Runyan v. Runyan, 907 S.W.2d 267, 273 (Mo. App. W.D. 1995) ("The
parties financial condition is not a controlling factor, but is only one of the relevant factors for
the trial court to consider in determining whether to award [attorney] fees.") (internal citations
and quotation marks omitted). To the contrary, the trial court's award of attorney's fees was
based almost entirely upon the second and third factors: the merits of the case and the actions of
the parties during the pendency of the action.
In evaluating these two factors, first, the trial court found Father "presented a meritorious
case[.]" Conversely, the trial court determined Mother's counter motion to modify and contempt
proceedings to be unmeritorious. See, e.g., Pasternak v. Pasternak, 481 S.W.3d 873, 878 (Mo.
App. E.D. 2015) (discussing an award of attorney fees premised upon, inter alia, the merits of
the case.). This court subscribes to the trial court's fitting characterizations of the litigants'
respective positions. After all, the trial court ordered, and we affirm, the modification of sole
legal custody from Mother to Father, occasioned, in part, by Mother's ornery communication
practices, Mother's multiple relocations, and Mother's laxity regarding Minor Children's
attendance and timely arrival at school.
32
Mother, nevertheless, claims the trial court was "overly critical" of her motion for
contempt, occasioned by Father's past due child support. However, this court need not expound
further upon the non-meritorious nature of Mother's motion for contempt than that which was
discussed under Point III, supra. Mother sought contempt against Father even though Father's
child support arrears were set in motion by Mother's non-existent childcare expenses.
Second, the trial court, ostensibly, found Mother's conduct during the pendency of the
underlying action to be debasing. Specifically, the trial court noted "Mother's failure to timely
file pleadings, comply with discovery, and continuation of the case on more than one (1)
occasion when the case was set for trial and Father was prepared and ready to try the case."
Such conduct is troublesome and indicative of uncooperative propensities, especially in the
context of litigation concerning the custody and best interests of her children. During the
pendency of a domestic relations cause of action wherein minor children are at issue, litigants
and attorneys alike should be scrupulously cognizant of the ramifications and consequences of
their conduct and actions. Conduct like that demonstrated by Mother should not be tolerated and
shall be admonished.
Moreover, conduct by a domestic relations litigant that unnecessarily increases the fees of
the opposing party shall never be condoned. Long v. Long, 135 S.W.3d 538, 545 (Mo. App.
S.D. 2004) ("A party's actions during the pendency of litigation may be considered in
determining whether to make an award of attorney fees, especially when those fees were the
result of the other party's improper conduct."); Bryant v. Bryant, 351 S.W.3d 681, 692 (Mo. App.
E.D. 2011). Mother's multiple, unjustified continuances—which Mother does not dispute—is a
flagrant illustration of unsuitable conduct of a domestic relations litigant. See, e.g., T.B.G. v.
C.A.G., 772 S.W.2d 653, 655 (Mo. banc 1989).
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Therefore, although the first factor (the financial resources of the parties) under Section
452.355.1 may not support the trial court's award of attorney's fees, the second and third factors
(the merits of the case and the actions of the parties during the pendency of the action),
thereunder, substantially and credibly validate the trial court's award. The award of attorney's
fees was within the trial court's discretion and was supported by competent and substantial
evidence, especially in light of the fact only a portion of Father's attorney's fees were awarded.
Mother's Point IV is denied.
CONCLUSION
For the foregoing reasons, the judgment of the trial court is affirmed.
___________________________________
Lisa P. Page, Judge
Sherri B. Sullivan, P.J. and
Kurt S. Odenwald, J., concur.
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