Bradley M. Robertson Individually and as Next Friend for olivia Y. Robertson v. Lorna Nelson
2016 Mo. App. LEXIS 1070
Mo. Ct. App.2016Background
- Child born March 28, 2011; parents submitted a Joint Parenting Plan incorporated into a December 5, 2013 paternity judgment giving joint legal and physical custody but giving Mother primary physical custody and specified parenting time to Father.
- Father filed to modify child support in Aug. 2014 after losing employment; Mother counter-moved to modify custody after police executed a warrant Oct. 24, 2014 and found extensive methamphetamine- and marijuana-related equipment at Father’s residence.
- Mother testified she had observed Father using and manufacturing meth; Father denied knowledge or minimized the items and blamed others; trial court found Father not credible and concluded his home was not a place for a young child.
- Trial court (after hearings) modified custody to give Mother sole physical and legal custody, imposed a detailed, graduated supervised-to-unsupervised visitation plan for Father, imputed $2,000/month income to Father for support purposes, and set child support; Father appealed.
- Appellate court affirmed most rulings (change of custody, imputed income, visitation restrictions reasonable, child support amount generally) but held the parenting plan improperly allowed automatic lifting of supervised-visitation restrictions without a future best-interest reevaluation and vested too much unilateral testing discretion in Mother; it also found Father was entitled to a Form 14 Line 2C child-care credit and remanded for recalculation.
Issues
| Issue | Robertson's Argument | Nelson's Argument | Held |
|---|---|---|---|
| Whether custody may be modified (change in circumstances) | No substantial change; drug charges were dismissed and pre-decree drug use should not be considered | Post-decree discovery of meth lab and grow equipment plus credibility findings show substantial change | Modification affirmed: post-decree facts (and pre-decree undisclosed drug activity unknown to court due to stipulation) supported change in circumstances |
| Whether change of physical custody was in child's best interest | Not proven: child unaware, Father passed drug tests, supervised visits in place, positive parent-child bond | Drug manufacturing on premises, child access to garage, Father not credible —unsafe for child | Affirmed: evidence supported best-interest finding for sole custody to Mother |
| Visitation restrictions and graduated regime | Restrictions excessive; court cannot automatically lift restrictions later without reexamining child's best interest | Supervised/gradual plan reasonable given safety concerns; testing and treatment conditions appropriate | Mixed: supervised visitation reasonable now, but court erred by creating an automatic future-lifting regime without required reevaluation and by granting Mother overly broad testing/control; remanded to redo plan |
| Child support (imputation and Form 14 credit) | Imputing $2,000/month unsupported; support should be reduced; entitled to Line 2C credit for another child | Father has work history and capacity to earn; imputation and resulting support appropriate; Line 2C not given below | Imputation affirmed ($2,000/month supported by evidence); support denial affirmed except court erred by omitting Line 2C credit — remand to recalculate |
Key Cases Cited
- Blanchette v. Blanchette, 476 S.W.3d 273 (Mo. banc 2015) (standard of review and deference to trial court credibility findings)
- Soehlke v. Soehlke, 398 S.W.3d 10 (Mo. banc 2013) (child's best interest central in custody modification)
- Scherder v. Sonntag, 450 S.W.3d 856 (Mo. App. 2014) (requirement of significant/substantial change in circumstances to modify custody)
- Pasternak v. Pasternak, 467 S.W.3d 264 (Mo. banc 2015) (joint legal custody and importance of parental communication)
- Lipic v. Lipic, 103 S.W.3d 144 (Mo. App. 2003) (court must reevaluate best interest before lifting visitation restrictions)
- Kroeger-Eberhart v. Eberhart, 254 S.W.3d 38 (Mo. App. 2007) (gradual restoration of visitation after proof of sobriety can be appropriate)
- Doss v. Brown, 419 S.W.3d 784 (Mo. App. 2012) (factors for imputing income to an unemployed parent)
- Monnig v. Monnig, 53 S.W.3d 241 (Mo. App. 2001) (same — income imputation framework)
- Walker v. Walker, 936 S.W.2d 244 (Mo. App. 1996) (imputing income where parent has capacity but refuses to work)
- Lapee v. Snyder, 198 S.W.3d 172 (Mo. App. 2006) (pre-decree evidence may be "unknown" where custody was by parental stipulation)
- KJB v. CMB, 779 S.W.2d 36 (Mo. App. 1989) (pre-decree parental conduct relevant to later custody determinations)
- Scott v. Scott, 147 S.W.3d 887 (Mo. App. 2004) (biological parents presumed best custodians but presumption rebuttable)
- Turley v. Turley, 5 S.W.3d 162 (Mo. banc 1999) (all visitation agreements inherently limit parental access)