410 S.W.3d 748
Mo. Ct. App.2013Background
- Parents never married; original 2011 judgment awarded joint legal and physical custody with alternating weekly physical custody and no child support; child’s mailing/educational address was Mother’s residence.
- After the original order, both parents moved out of the shared home and did not follow the week-to-week schedule; Father exercised little custody from Sept 2011–Apr 2012 and began regular contact around the time Mother filed to modify custody.
- Significant conflict and poor communication between parents, including incidents in the child’s presence, police and Children’s Division involvement, disagreements over extracurriculars and school routine; Mother lived in the child’s school district, Father did not.
- Mother worked full time at the Columbia Daily Tribune and part time at a restaurant; childcare (~$250/mo) and health insurance (~$230/mo) costs were incurred; Father made minimal contributions to child expenses.
- Trial court found substantial and continuing change in circumstances, awarded Mother sole legal and physical custody (but detailed parenting time to Father: alternating weekends, Wednesday evenings, three summer weeks), imputed income to Father and calculated child support of $432/mo.
- On appeal, the court affirmed modification (but amended to joint physical custody), found trial court erred in Mother’s Tribune gross-income figure (corrected to $2,500/mo), adjusted presumed support to $410/mo, and remanded to allow the trial court to determine whether the $410 amount is rebutted as unjust or inappropriate.
Issues
| Issue | Moore's Argument | Thomas's Argument | Held |
|---|---|---|---|
| Whether trial court erred in awarding sole physical custody to Mother (modification must be in child’s best interests after substantial change) | Modification not in child's best interests; original week-to-week schedule should remain | Change in circumstances (Father’s nonuse of schedule, parental conflict, school stability) warranted modification to minimize required cooperation | Affirmed modification; parenting time gives Father significant time so court amended decree to designate joint physical custody |
| Whether trial court erred in child support by miscalculating Mother’s gross monthly income | Mother’s Tribune gross income is $2,500/mo and her restaurant income ($821/mo) should be included; thus presumed support higher than court’s figure | Trial court correctly excluded secondary restaurant income as unnecessary if Father paid his share; Tribune gross income was less than $2,500 as court found | Trial court erred in Tribune gross amount; appellate court set Tribune gross at $2,500/mo, revised presumed support to $410/mo, remanded for trial court to decide whether $410 is rebutted as unjust/inappropriate |
Key Cases Cited
- Murphy v. Carron, 536 S.W.2d 30 (Mo. 1976) (standards for appellate review of trial-court judgments)
- Querry v. Querry, 382 S.W.3d 922 (Mo. Ct. App. 2012) (deference to trial court on custody credibility and when parenting-time awards amount to joint physical custody)
- Flathers v. Flathers, 948 S.W.2d 463 (Mo. Ct. App. 1997) (trial court discretion in custody matters; reversal only when welfare requires)
- Russell v. Russell, 210 S.W.3d 191 (Mo. banc 2007) (modification requirements and lesser standard for rearranging joint physical custody)
- Potts v. Potts, 303 S.W.3d 177 (Mo. Ct. App. 2010) (when substantial parenting time for both parents constitutes joint physical custody)
- Malawey v. Malawey, 137 S.W.3d 518 (Mo. Ct. App. 2004) (amount of time child spends with each parent is key to joint physical custody analysis)
- Woolridge v. Woolridge, 915 S.W.2d 372 (Mo. Ct. App. 1996) (Form 14 mandatory for computing presumed child support and how courts should record calculations)
- Roberts v. Roberts, 391 S.W.3d 921 (Mo. Ct. App. 2013) (two-step child support procedure: Form 14 presumed amount then rebuttal analysis)
- Sieg v. Sieg, 255 S.W.3d 20 (Mo. Ct. App. 2008) (review standard for imputed income and child support determinations)
- Luckeroth v. Weng, 53 S.W.3d 603 (Mo. Ct. App. 2001) (appellate deference to trial court on child support absent palpably insufficient evidence)
- Thill v. Thill, 26 S.W.3d 199 (Mo. Ct. App. 2000) (standards for disturbing child support awards on appeal)
- DeBaliviere Place Ass’n v. Veal, 337 S.W.3d 670 (Mo. banc 2011) (appellate court may enter the judgment that should have been entered when no further proceedings are needed)