John M. Hark v. Amy M. (McKinney) Hark

In the Missouri Court of Appeals
Eastern District
DIVISION TWO
JOHN M. HARK, ) No. ED106281
)
Respondent, ) Appeal from the Circuit Court of
) Ralls County
vs. )
) Honorable Thomas J. Frawley
AMY M. (MCKINNEY) HARK, )
)
Appellant. ) Filed: January 22, 2019
Introduction
Amy McKinney (“Mother”) filed a motion to modify child support and child custody.
Mother appeals both the trial court’s modification of child support and the denial of the physical
custody modification. Mother’s first point on appeal claims the trial court misapplied the law in
giving John Hark (“Father”) a 50% credit when calculating the presumed child support amount.
Mother claims the trial court used the incorrect Form 14 (“Old Form 14”) when calculating the
presumed child support amount. The trial court misapplied Rule 88.011 using the incorrect Form
14. We reverse and remand with instruction to complete the procedure using the Form 14
effective as of July 1, 2017 (“New Form 14”). In her second point on appeal, Mother argues the
trial court’s finding of no substantial change to modify physical custody is against the weight of
the evidence. Mother fails to demonstrate the trial court’s finding of no substantial change to
1
All Rule citations are to the Missouri Supreme Court Rules (2017) unless otherwise indicated.
modify physical custody is against the weight of the evidence. We affirm the trial court’s denial
of custody modification.
Factual and Procedural Background
Mother and Father married in June 1999. Their marriage was dissolved on May 27, 2010.
The dissolution decreed joint legal and physical custody of the three children born of the marriage,
two daughters, G.H. and N.H., and a son, M.H. The dissolution granted Mother physical custody
every Monday morning to Wednesday morning and Father physical custody every Wednesday
morning to Friday morning with alternating weekends, two weeks in the summer, and designated
Holidays.
On January 21, 2015, Mother filed a motion to modify child support and to modify child
custody---both legal and physical---from joint to sole. Mother sought to decrease Father’s physical
custody to every Wednesday night, alternating weekends, and two weeks in the summer with the
same designated holidays as the original decree. In her motion, Mother claimed there was a
substantial and continuous change since the dissolution, specifically: Father refuses to
communicate with Mother about the children; Father makes degrading statements about Mother
in the presence of the children; Father alienates the children’s affection toward Mother; Father
physically and emotionally abuses the children; and the children need counseling due to these
changes. At the hearings, Mother also claimed Father's remarriage, the introduction of
stepchildren to Father's home, and Father's bad temperament also had adverse effects on the
custodial relationship between Father and the children. On December 11, 2015, Mother filed an
amended motion to include a plan for college expenses in the child support modification.
On February 18 and 19, 2016, the trial court held a hearing (“first hearing”) on the
motions. On December 30, 2016, the trial court entered findings of fact and a judgment (“2016
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Judgment”) denying Mother’s motion to modify custody and granting Mother’s motion to modify
child support. The modified monthly child support amount was calculated using the Old Form 14
which was effective until July 1, 2017. The court increased the child support amount from
$1,352.00 to $1,513.00 per month. This child support amount was calculated using a 50% credit
from Line 11 in the Directions, Comments for Use and Examples for Completion of Form 14
(“Directions”). The Line 11 credit is for the expenditure made by parents obligated to pay support
during their periods of overnight visitation or custody.
Mother filed a motion to reopen evidence and reconsider the custody and child support
modification. The trial court granted the motion, but only re-opened evidence for new evidence
since the first evidentiary hearing on the issues of “legal custody, physical custody, parenting time
and child support”.
On July 14, 2017, the trial court held another hearing (“second hearing”). On October 10,
2017, the trial court issued a new judgment (“2017 Judgment”) incorporating the factual findings
from the 2016 Judgment and adding findings based on the new evidence. On November 11, 2017,
Mother filed a motion to amend the 2017 judgment. The trial court denied the motion and issued
an addendum to the 2017 Judgment adding findings but not changing the conclusions or orders
from the 2017 Judgment.
The trial court made the following findings in the 2017 Judgment: Mother’s testimony
deserved little weight. Mother had “colored [G.H.]’s and [N.H.]’s view of [Father]”. The
daughters’ testimonies were a result of a choice to either “adopt [Mother’s] opinion of [Father]
or betray their mother.” On March 15, 2014, Father put his hands around G.H.’s neck in
response to G.H. doing the same to her brother, M.H. The next day, Father picked M.H. up by
the neck although the testimonies about this event contradict each other; N.H. was frightened
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when witnessing the incident, but M.H. believed it to be a joke. In August 2014, Father remarried,
and Father’s new wife and stepchildren permanently moved in to Father’s home. In February
2015, Father attempted to stop G.H. from calling her Mother, and Mother had G.H. call the police.
In early 2015, N.H. allegedly saw Father brushing his stepdaughter’s hair so harshly he removed
clumps of hair. Father’s stepdaughter denies this event. In June 2015, Malaine Hagemeier was
appointed as the children’s Guardian ad Litem.
In late 2016, Father, his new wife, and stepchildren moved to a new, more spacious house
giving all the children more room to themselves and improving the situation with Father’s
stepchildren. The children each had their own room and the only shared personal space was N.H.
and G.H.’s bathroom. In June 2017, Mother was engaged to Michael Land. At the second hearing,
the children’s teacher Ms. Allen testified their homework was not turned in late and she could not
tell when the children were with one parent or the other. Further, she had no concerns about abuse
or neglect with the Hark children. Allen had previously taught G.H and was currently teaching
M.H. and N.H.
The trial court went on to find: since the dissolution, Mother, Father, and the children saw
a number of counselors, and G.H and N.H. were seeing doctors for head, stomach, and other
medical issues related to the dissolution. Mother believed the children were anxious about
Father taking off with them. Penni Ippensen, another counselor to the children, believed they
were anxious around Father. Ippensen believed the anxiety was heightened due to these
proceedings. The Guardian ad Litem suggested that Mother and Father each take the children,
separately from each other, to the same counselor, Angela Barton. Barton believed N.H. should
be evaluated for anxiety issues. G.H. complained to Dr. McCoy, a treating physician, about her
anxiety related to the hearings in these proceedings. G.H. went to a doctor about headaches in
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October 2015 which she claims began around April 2015. The doctor prescribed her medicine for
the headaches and for depression. N.H. developed stomach pains and trouble sleeping when at
Father’s house. As of the second hearing, N.H.’s pains and trouble sleeping had decreased, and
she was not on any medication. G.H.’s headaches had also improved.
Based on these findings, the trial court denied Mother’s attempts to modify joint legal2 and
physical custody. This appeal follows.
Analysis
Point I: The Trial Court Misapplied the Law Using Old Form 14
Standard of Review
We will affirm the judgment for a motion to modify child support unless it is not supported
by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies
the law. Windsor v. Windsor, 166 S.W.3d 623, 628 (Mo. App. W.D. 2005).
Discussion
Section 452.3403 establishes the method for allocating and calculating child support. A
court may adjust a child support award up to 50% when the children spend equal or substantially
equal time with both parents. § 452.340.11. But it must do so according to the guidelines using
the specific, descriptive, and numeric criteria for computing the support obligation. § 452.340.8.
The Supreme Court of Missouri establishes these guidelines in Rule 88.01. Case law requires a
two-step procedure to calculate and approve a child support award or modification of an award.
Woolridge v. Woolridge, 915 S.W.2d 372, 379 (Mo. App. W.D. 1996). First, a court must
calculate the presumed child support amount according to Rule 88.01 using an effective
Form 14. Id. There is a rebuttable presumption that the presumed child support amount is the
2
Mother raises no issue on appeal regarding the trial court’s judgment on legal custody.
3
All statutory references are to RSMo (2017) unless otherwise indicated.
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correct amount of child support. Rule 88.01(b). After the presumed child support amount is found,
a court determines if the presumed child support amount is found unjust or inappropriate for any
of the reasons described in the Directions. Woolridge, 915 S.W.2d at 379. When the presumed
child support amount is unjust or inappropriate, a court can use the Directions to increase or
decrease from the presumed child support amount based upon the circumstances of the parties. Id.
at 379-80. Therefore, a court must first calculate the presumed child support amount according to
the current Form 14 and make a finding of this amount for the record. Reis v. Reis, 105 S.W3d
514, 516 (Mo. App. E.D. 2014). Then the court can rebut the amount by finding it unjust or
inappropriate. Rule 88.01(b).
The New Form 14 and Directions took effect on July 1, 2017. The New Form 14 states:
“This Form 14 including directions, comments and assumptions, may be used prior to July 1, 2017,
and shall apply to all proceedings in which the order or judgment is entered after July 1, 2017.”
(Emphasis added). Because the trial court reopened and heard new evidence on the issue of child
support and entered an amended judgment4 after July 1, 2017, the New Form 14 should have been
used to calculate the presumed child support amount in the 2017 Judgment.
A court must find the correct presumed child support amount in order to achieve the
rebuttable presumption from Rule 88.01(b). Reis, 105 S.W3d at 516. This amount must be
calculated for the record using an effective Form 14. Id.
The trial court found the presumed child support amount using the Old Form 14 for both
the 2016 and 2017 Judgments. The Old Form 14 allowed a Line 11 credit of up to 50%. The
Directions stated: “If the parent obligated to pay support…has been awarded…custody of more
than 109 days per year; the adjustment for that parent may be greater than 10% up to a maximum
4
Under Rule 78.07(d), unless otherwise specified in an amendment, “an amended judgment shall be deemed a new
judgment for all purposes”. Here, no specification to the contrary was contained within the 2017 judgment.
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of 50%.” Using the Old Form 14, the trial court had the discretion to use a 50% Line 11 credit
when calculating the presumed child support amount.
Line 11 of the New Form 14 limits the court’s discretion in the first step of the Woolridge
procedure and provides a chart which designates the amount of credit. When the parent obligated
to pay support has custody for 181-183 days per year, the maximum credit of 34% is used to
calculate the presumed child support amount. The New Form 14 states: “If the Court finds that
application of these rules, including the line 11 credit, are unjust and inappropriate, it may apply
an overnight visitation or custody adjustment of over 34% and up to 50% based upon the
circumstances of the parties.” The New Form 14 does not allow a 50% credit until the second step
of the Woolridge procedure occurs.
The trial court granting a 50% Line 11 credit in the 2017 Judgment is a misapplication of
the law under the New Form 14. This credit cannot be applied until the second step of the
Woolridge procedure. The court must calculate the presumed child support amount using the New
Form 14, and then complete the Rule 88.01 procedure as outlined in Woolridge.
Point One is granted. We reverse and remand for the proper calculation of presumed child
support amount.
Point II: The Trial Court Found No Substantial Change to Modify Physical Custody
Standard of Review
When reviewing a motion to modify custody, we affirm the trial court’s custody
determination unless there is no substantial evidence to support it, it is against the weight of the
evidence, or it erroneously declares or applies the law. Brown v. Shanahan, 141 S.W.3d 77, 80
(Mo. App. E.D. 2004). The evidence and the reasonable inferences are to be viewed in the light
most favorable to the judgment of the trial court. Bohac v. Akbani, 29 S.W.3d 407, 411 (Mo.
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App. E.D. 2000). "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).
Discussion
Section 452.410 governs the modification of child custody in two steps. A movant must
first show a change has occurred in the circumstances of the children or the custodial parents
based upon facts that have arisen since the prior decree or facts that were unknown to the court at
the time of the prior decree. § 452.410.1. If the necessary level of change in circumstances is
shown, movant must next show modification is necessary to serve the best interests of the
children. Id.
The change required in the first step differs based on the type of modification sought.
Russell v. Russell, 210 S.W.3d 191, 196 (Mo. banc 2007). When physical custody is modified
from joint to sole, a “substantial change” must be shown. Id. at 194. The dissolution decreed
joint physical custody. Mother sought sole physical custody. See Morgan v. Morgan, 497
S.W.3d 359, 370 (Mo. App. E.D. 2016). The court correctly found the modification was from
joint to sole physical custody. Therefore, Mother needed to show a substantial change in
circumstances in this case.
Not every change in circumstances calls for a modification of custody. Eastes v. Eastes,
590 S.W.2d 405, 408 (Mo. App. E.D. 1979). When deciding a physical custody modification,
the court only considers changes related to the custodial parents’ abilities to care for the children.
J.F.H v. S.L.S., 550 S.W.3d 532, 537 (Mo. App. E.D. 2017). “[A] change in the circumstances
of the parents' use of parenting time and their sharing of it in such a way as to assure the
child[ren] of frequent, continuing, and meaningful contact with both parents” is the main concern
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of the court in assessing which changes should be considered. Id. Substantial change requires a
more rigid burden using the same physical custody factors. Morgan, 497 S.W.3d at 365-66.
In the 2017 Judgment, the court found “no change has occurred in the circumstances of
[Father] and [Mother], as custodial parents, or the minor children as a result of which the best
interests of the minor children require modification of the terms of the joint physical custody
agreement.”5 (Emphasis added). The use of the word “substantial” is not necessary. Southard v.
Southard, 239 S.W.3d 172, 177 (Mo. App. E.D. 2007). Because “no change” is less change than
“no substantial change” and the court explicitly classified the modification as one from joint to
sole physical custody, we treat the finding of “no change” as a finding of no substantial change.
Mother has not demonstrated the court’s finding of no substantial change was against the
weight of the evidence. We find the Southern District’s four step method to state an “against the
weight of the evidence” challenge useful here. Houston v. Crider, 317 S.W.3d 178, 187 (Mo. App.
S.D. 2010). To marshal an “against the weight of the evidence” argument, an appellant must first
identify a challenged factual proposition, the existence of which is necessary to sustain the
judgment. Id. Second, an appellant must identify all of the favorable evidence in the record
supporting the existence of that proposition. Id. Third, an appellant must identify the evidence in
the record contrary to the belief of that proposition, resolving all conflicts in testimony in
accordance with the trial court's credibility determinations, whether explicit or implicit. Id. And,
lastly, an appellant must demonstrate why the favorable evidence, along with the reasonable
inferences drawn from that evidence, is so lacking in probative value, when considered in the
context of the totality of the evidence, that it fails to induce belief in that proposition. Id. The
5
At the beginning of the same paragraph, the court found “no substantial change has occurred…” as it pertains to a
modification of joint legal custody.
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Houston court found the “failure to fully identify all material favorable evidence undermines [the]
ability to demonstrate why that evidence was so lacking in probative value.” Id. at 188.
The factual proposition at issue in this case is the finding of no substantial change. In
order to succeed in an “against the weight of the evidence” challenge, Mother needed to provide
this Court all the evidence in the record supporting the trial court's decision, provide all the
evidence contrary to the trial court's decision resolving all conflicts in testimony in accordance
with the trial court's credibility determinations, and then demonstrate why the favorable
evidence, with the reasonable inferences drawn from that evidence, is so lacking in probative
value. Here, all Mother does is reargue her evidence, ignoring all the contrary evidence. Based
on our standard of review and the Houston requirements, Mother did not complete the steps
necessary to show the evidence supporting the trial court’s judgment is so lacking as to
demonstrate the trial court’s finding of no substantial change was against the weight of the
evidence.
The court is in the best position to find the facts and weigh the evidence. It is free to
believe all, some, or none of the evidence offered to prove a contested fact. Ivie v. Smith, 439
S.W.3d 189, 206 (Mo. banc 2014). We defer to the court to weigh any contested or contradicting
evidence to make credibility determinations. Id. The appellate court will not re-find facts based
on credibility determinations through its own perspective. Id. This court must exercise extreme
caution in setting aside a judgment as against the weight of the evidence and will do so only
upon a firm belief that the judgment was wrong. Scherder v. Sonntag, 450 S.W.3d 856, 860 (Mo.
App. E. Dist. 2014). We do not hold that firm belief here.
Since the dissolution, Father remarried. Father’s wife and step-children permanently
moved into Father’s home. G.H., N.H., and M.H. all complained of difficulty due to Father’s
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step-children. At the second hearing, the children’s teacher testified the schoolwork of the
children was not noticeably different when staying with one parent or the other. The court also
found the children liked Father’s new wife. The court also found, when Father bought a new
larger house, the problems between the children and stepchildren improved.
Mother and Father agreed G.H. and N.H. experienced stress-related physical symptoms.
Mother believes the symptoms were caused by Father and his physical custody. Father disagrees
and also feels the symptoms have subsided as of the second hearing, in part, due to a move to a
bigger house with more space and, in part, due to partial resolution of this case as well as
medication and counseling. The court found N.H.’s medical issues had subsided and G.H. had
improved and no longer required medication.
Mother argued Father was physically abusive to the children. This too is contested based
on the record. Although Mother, N.H., and G.H. testified to concern about Father’s behavior, the
court did not find Mother credible and felt N.H. and G.H. both followed Mother’s wishes while
testifying. The trial court found Mother’s behavior “colored” G.H.’s and N.H.’s “view” of
Father. The children’s teacher, counselors, and doctors did not state any concern about the
alleged abuse or danger to the children.
Mother claims the problems faced by the children were of such a degree the court,
Mother, and Father all sought counseling for the children. This is true. However, the court
found the testimony of the counselors rebutted many of Mother’s contentions, noting the
counseling improved the relationships between the children and the custodial parents.
The trial court considered all of the evidence Mother brings before us. We do not re-find
facts or make our own credibility determinations. Ivie, 439 S.W.3d at 206. Given our standard of
review and the trial court’s credibility determinations, Mother fails to demonstrate the trial
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court’s finding of no substantial change to modify physical custody is against the weight of the
evidence.
Point Two is denied.
Conclusion
For the foregoing reasons, that portion of the judgment modifying child support is reversed
and remanded with instruction to recalculate the presumed child support amount using the New
Form 14 and complete the two-step Woolridge procedure. In all other respects, the judgment is
affirmed.
_______________________________
Philip M. Hess, Presiding Judge
Robert G. Dowd, Jr., J. and
Mary K. Hoff, J. concur.
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