Sam Prach v. Darman (Prach) Westberg
2015 Mo. App. LEXIS 212
| Mo. Ct. App. | 2015Background
- Marriage dissolved 2009; parents awarded joint legal and physical custody of two children; parenting plan revised 2011 after Mother moved to South Carolina making Father the children’s residence for mailing/educational purposes and allocating school-year time to Father and summers to Mother.
- Son experienced academic problems in 5th–6th grade; Mother intervened by email and phone and sought modification to have children live with her during school to help Son.
- Father, who works nights, relied on his parents for childcare but increased involvement after litigation (tutoring arrangements, earlier wake times, school attendance).
- Trial court denied Mother’s motion to modify (finding no continuing change of circumstances and that modification was not in children’s best interests), refused in-camera interviews of the children, released and later reappointed the GAL, and awarded Father $1,500 in attorney’s fees for frivolous post-judgment motions.
- Mother appealed, challenging the change-in-circumstances standard applied, best-interests finding, denial of child testimony/in-camera interview, GAL release, and attorney’s-fee award.
Issues
| Issue | Mother’s Argument | Father’s Argument | Held |
|---|---|---|---|
| Whether trial court applied correct change-in-circumstances standard for modification under §452.410.1 | Trial court used an improper “continuing” requirement and may have applied wrong standard for non-custody-related modifications | Any error was harmless because court separately analyzed best interests and found modification unwarranted | Affirmed; even if wrong term used, no prejudice because court reached merits (no modification) |
| Whether modification was warranted under children’s best interests | Children should live with Mother during school year to address Son’s academic/anxiety issues; Mother more able to assist | Father improved involvement; children well-adjusted in Missouri; tutoring and other steps addressed issues | Affirmed; substantial evidence supported trial court’s best-interests determination favoring status quo |
| Whether trial court abused discretion by refusing children’s testimony or in-camera interviews | Mother: children competent to testify about Father’s activities and home conditions | GAL recommended against interviewing/testifying; children (esp. Daughter) deemed incompetent or emotionally harmed by testifying | Affirmed; trial court permissibly relied on GAL and evidence of children’s emotional state to exclude testimony |
| Whether award of $1,500 attorney’s fees to Father was unauthorized/abuse of discretion | Mother: prior order that each pay own fees had become final; court lacked jurisdiction to award fees later | Trial court acted within discretion to award fees for frivolous or unnecessary post-judgment litigation | Affirmed; fee award was within trial court’s discretion and not an abuse |
Key Cases Cited
- Russell v. Russell, 210 S.W.3d 191 (Mo. banc 2007) (distinguishes substantial-change requirement for custody changes from lesser standard for custodial-term adjustments)
- Clayton v. Sarratt, 387 S.W.3d 439 (Mo. App. W.D. 2013) (standard of review for modification and best-interests analysis)
- Hightower v. Myers, 304 S.W.3d 727 (Mo. banc 2010) ("continuing" change requirement applies to child support, not custody modifications)
- Kordonowy v. Kordonowy, 887 S.W.2d 809 (Mo. App. E.D. 1994) (trial court discretion to exclude child testimony when testimony may harm child or when child lacks capacity)
- Patton v. Patton, 973 S.W.2d 139 (Mo. App. W.D. 1998) (standards for appellate review of attorney-fee awards in family-law proceedings)