333 S.W.3d 22
Mo. Ct. App.2010Background
- Mother and Father were married 16 years; two children: Kody (1993) and Josette (1998).
- In July 2008, Father pled guilty to domestic assault and received probation under a Domestic Violence Court.
- November 20, 2008 dissolution judgment awarded joint legal custody, Mother had sole physical custody, Father had weekly visitation.
- February 24, 2009 Father moved to modify custody; April 10, 2009 Mother answered with cross-motion alleging numerous misconduct by Father and seeking custody/visitation changes and contempt.
- October 1, 2009 evidentiary hearing; circuit court found claims unsupported and no substantial change in circumstances; deemed Father’s refinancing and car payments non-willful and not contemptuous.
- Evidence showed a total breakdown in parental communication from Feb 2009 to Oct 2009, prompting concern about continuing joint legal custody.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was there a substantial change in circumstances to modify custody? | Mother argues communication breakdown constitutes change. | Father argues no substantial change occurred. | Remand for process to assess best interests and potential custody modification. |
| Was the denial of contempt for mortgage and car obligations supported by the record? | Mother contends Father's failure was willful and contemptuous. | Father attributes noncompliance to financial distress and debts beyond his control. | Not willful; contempt denied. |
Key Cases Cited
- Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976) (standard of review for custody modifications)
- Durbin v. Durbin, 226 S.W.3d 876 (Mo.App. W.D.2007) (deference to trial court; best interests in custody)
- Hamer v. Nicholas, 186 S.W.3d 884 (Mo.App. W.D.2006) (extreme caution against finding against weight of evidence)
- Ronquille v. Ronquille, 263 S.W.3d 770 (Mo.App. W.D.2008) (weight of evidence in custody rulings)
- Spire v. Adwell, 36 S.W.3d 28 (Mo.App. W.D.2000) (modification standard; change in circumstances and best interests)
- Mobley v. Phillips, 942 S.W.2d 399 (Mo.App. W.D.1997) (change in circumstances required for modification)
- Fortner v. Fortner, 166 S.W.3d 615 (Mo.App. W.D.2005) (substantial change required for custody modification)
- Sutton v. Sutton, 233 S.W.3d 786 (Mo.App. E.D.2007) (definition of joint legal custody)
- Margolis v. Steinberg, 242 S.W.3d 394 (Mo.App. E.D.2007) (parental cooperation as factor in custody)
- McCauley v. Schenkel, 977 S.W.2d 45 (Mo.App. E.D.1998) (communication breakdown as change in circumstances)