NO. WD76284
________________________________________________________
NDEYE MARIEME NDIAYE,
FILED
Respondent,
V.
Feb 05 2014 11:34
MISSOURI COURT OF APPEALS
WESTERN DISTRICT
CHEIKH IBRA SEYE,
Appellant.
________________________________________________________
Appeal from the Circuit Court of Boone County, Missouri
The Honorable Leslie L. Schneider
________________________________________________________
RESPONDENT’S BRIEF
________________________________________________________
Linda G. Harris, #46459
SHURTLEFF FROESCHNER HARRIS, LLC
25 North 9th Street
Columbia, Missouri 65201
Phone: (573) 449-3874
Fax: (573)875-5055
lindah@tranquility.net
Attorneys for Respondent
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IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
__________________________________________________________________
TABLE OF CASES ................................................................................................
2
STATEMENT OF FACTS .....................................................................................
4
POINTS RELIED ON ............................................................................................. 16
RESPONDENT’S ARGUMENT ............................................................................. 21
POINT I ......................................................................................................... 21
POINT II ........................................................................................................ 25
POINT III ...................................................................................................... 28
POINT IV ..................................................................................................... 31
POINT V ...................................................................................................... 42
CONCLUSION ........................................................................................................ 46
CERTIFICATE OF COMPLIANCE ....................................................................... 47
CERTIFICATE OF SERVICE ................................................................................ 47
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TABLE OF CONTENTS
Bather v. Bather, 170 S.W.3d 487 (Mo.App. W.D. 2005)
17, 27
Burkhart v. Burkhart, 876 S.W.2d 675 (Mo. App. W.D. 1994)
19, 31
Clayton v. Sarratt, 387 S.W. 3d 439 (Mo.App. W.D. 2013)
17, 27
Cunningham v. Cunningham, 143 S.W.3d 647 (Mo.App. E.D. 2004)
20, 45, 46
Davidson v. Fisher, 96 S.W.3d 160 (Mo.App. W.D. 2000)
16, 21, 22
Gant v. Gant, 923 S.W.2d 527 (Mo. App. W.D. 1996)
20, 44, 45, 46
Herbert v. Harl, 757 S.W.2d 585 (Mo.banc 1988)
20, 44
Heslop v. Sanderson, 123 S.W.3d 214 (Mo. App. W.D.)
17, 26
In re Marriage of Campbell, 868 S.W.2d 148 (Mo. App. S.D. 1993)
19, 31
In re Marriage of Sisk, 937 S.W.2d 727 (Mo.App. S.D. 1996)
19, 36, 37
Kansantonis v. Kansantonis, 245 S.W.3d 925 (Mo. App. E.D. 2008)
18, 29, 30
Loumiet v. Loumiet, 103 S.W.3d 332 (Mo. App. W.D. 2003)
20, 42
Mantonya v. Mantonya, 311 S.W.3d 392 (Mo. App. W.D.)
17, 25
McCubbin v. Taylor, 5 S.W.3d 202 (Mo.App. W.D.)
19, 40, 41
Mund v. Mund, 7 S.W.3d 401 (Mo. banc 1999)
20, 45
Neal v. Neal, 941 S.W.2d 501 (Mo. banc 1997)
18, 30
Portwood-Hurt v. Hurt, 988 S.W.2d 613 (Mo. App. W.D. 1999)
19, 36, 37, 38
Russell v. Russell, 210 S.W. 3d 191 (Mo. banc 2007)
17, 27
Tompkins v. Baker, 997 S.W.2d 84 (Mo.App. W.D. 1999)
18, 30
Woolridge v. Woolridge, 915 S.W. 2d 372 (Mo. App. W.D. 1996)
18, 28
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TABLE OF CASES
Mo. Rev. Stat §455.010 (2011)
20, 43, 46
Mo. Rev. Stat §452.340 (2011)
18, 30
Mo. Rev. Stat §452.370 (2011)
18, 19, 29
Mo. Rev. Stat §452.375 (2011)
16, 19, 20, 21, 22, 24, 40, 41, 45
Mo. Rev. Stat §452.410 (2011)
17
Mo. Sup. Ct. R. 88.01
30
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STATUTES AND OTHER AUTHORITIES
Respondent makes the following additions and corrections to Appellant’s
Statement of Facts:
In the Judgment and Decree of Dissolution entered on July 29, 2008 the parties
Joint Parenting Plan was approved by the trial court. (LF 30). The joint custody schedule
was as follows: Wednesday 5:00 p.m. to Friday 5:00 p.m. custody to Dad; Friday 5:00
p.m. to Monday 5:00 p.m. custody to Mom; Monday 5:00 p.m. to Wednesday 5:00 p.m.
custody to Dad; Wednesday 5:00 p.m. to Friday 5:00 p.m. custody to Mom; Friday 5:00
p.m. to Monday 5:00 p.m. custody to Dad; Monday 5:00 p.m. to Wednesday 5:00 p.m.
custody to Mom. (A 3). Appellant relocated to Indiana in July 2009. (T 406).
A Judgment and Order of Modification of Decree of Dissolution of Marriage was
entered on December 2, 2009 modifying child support. (LF 36). The Modification
Judgment entered by the Court on December 2, 2009 ordered Appellant to pay child
support to Respondent in the amount of $984.00 per month. (LF 36). This amount was
the presumed amount based on the Court’s own Form 14. (LF 36). In addition, the court
found that “the move to Indiana would not be in the children’s best interest.” (LF 36).
The children have resided with Respondent in Columbia, Missouri since Appellant’s
relocation to Indiana. (T 3-4). A majority of Respondent’s visits with the children
occurred in Columbia, Missouri after he relocated. (T 266-279; 284-302).
This modification action was filed by Appellant on July 18, 2010. (LF 52). The
trial was held over a period of four days: Thursday, April 5, 2012, Thursday, April 26,
2012, Wednesday, June 13, 2012 and June 14, 2012. (LF 11-12). A status conference
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STATEMENT OF FACTS
Seye an extended visit of .. about two weeks, a little bit over. I wanted to know how it
went. That’s why I set it - I purposely did it. I was waiting till that got done and I sent
out a notice because I wanted to know how the visit went.” (T 764). The Court further
stated that the hearing “had nothing to do with receiving the letter and that the file had
been sent downstairs to send out notices” when the letter was received. (T 764). On
August 1, 2014, the court stated that Appellant’s fiancé is “someone that meets within the
statutory factors I’ve got to consider as those persons who would have an impact, and I
don’t recall him testifying that she was coming anytime soon for me to explore that issue,
because I would have wanted to know more about this person.” (T 819). The court
further stated that “this is one of the reasons I set this for additional evidence today.” (T
819)(emphasis added).
Appellant did not file a Form 14 during the pendency of the case. (LF 8-22; 3845). Appellant did not enter a Form 14 into evidence during the trial. (T vii). Respondent
entered her Form 14 into evidence at trial showing a presumed child support amount of
$1,369.00 (T 519).
The Court entered a Judgment and Order of Modification of the Decree of
Dissolution of Marriage on November 21, 2012. (LF 23) The court adopted
Respondent’s Form 14 as the presumed correct child support amount. (LF 48). The court
ordered child support modified to $1,369.00 (LF 48, 136). In accordance with Mo. Rev.
Stat. §452.375.6 (2011), the trial court made written findings on each of the eight factors
listed in subsection two of §452.375.6. (LF 16-21, 46-48, 130-136). The majority of the
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was held on July 12, 2012. (LF 14; T 764). The trial court specifically stated, “I gave Mr.
factor that favored father. (LF 16-21, 46-48, 130-136). In regard to Mo. Rev. Stat.
§452.375.2(6), the trial court stated, “[t]he Court finds that this factor favors both parents.
Neither parent nor the children has any mental or physical health issues.” (LF 19, 47,
134). The trial court did not make a finding of a history of abuse or a finding of a pattern
of domestic violence as defined in section 455.010. (LF 16-21, 46-48; 130-136). As part
of the custody determination the Court also stated:
2. Court further considers the following:
1.
Court notes that Petitioner and Respondent have had an acrimonious
relationship prior to and since the entry of the judgment of
dissolution.
2.
The failure to communicate was only worsened when the
Respondent relocated to the state of Indiana.
3.
Respondent’s desire to maintain a weekly relationship with the
children is commendable; yet, the constant unsureness of when the
visitation would begin and end further exacerbated the problems
between the parties.
4.
Petitioner (sic) is commended for fostering the relationship with the
father by permitting visitation every weekend without court order.
5.
Petitioner should not have been made subject to Respondent’s
demands of the time and day that he would be in Columbia.
Likewise, the Respondent could have been more responsive to
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factors favored Mother or both parents. (LF 16-21, 46-48; 130-136). There was only one
6.
Neither party was cognizant of the extreme effect this behavior had
on the children.
7.
During Father’s testimony of 6-13-12 he indicated that he was
planning on getting married in several months and that his finance
did not live in the United States, yet on June 15, 2012, he picked up
his fiancé at the St. Louis Airport for an extended visit in the United
States with his children.
8.
Court finds Father’s testimony on his plans with regard to marriage
disingenuous. Such behavior is concerning to the court as how it
might have a negative impact on the academic, social and moral
development of the children. (LF 21, 48, 135-136).
Lisa Brown
Lisa Brown testified that she made two hotline reports. (T 86-87). She testified
that she was contacted both times by Children’s Division investigators and that she shared
her concerns with the Children’s Division workers. (T 87). Both of the hotline reports
she made were unsubstantiated. (T 85). Ms. Brown testified that Appellant and
Respondent have not been able to communicate and get along as far as setting up a
schedule since she has been involved in the case. (T 641). Ms. Brown also testified that
the custody battle is affecting Saly. (T 636).
Bonding Assessment - Jacqueline A. Ellis, Ph.D.
The results of the bonding assessments indicate that Saly’s bond with her mother
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Petitioner’s schedule.
evidence that “Saly and her mother get along well most of the time” and that Saly “loves
her mother and thinks she is terrific most of the time.” (A 54). Dr. Ellis described
mother’s interactions with the children as “pretty neutral” further stating “[t]hey weren’t
negative, but pretty neutral.” (T 111). Dr. Ellis testified that “Saly seemed completely
comfortable in her mother’s presence.” (T 111). While Dr. Ellis testified that mother was
“somewhat detached” during the interview Dr. Ellis later admitted that mother’s lack of
animation and demeanor “[m]ight just be her personality.” (T 111)
Dr. Ellis testified that both parents had issues with management of Mustaf. (T 108,
112-113). She reported that father’s management was “a bit weak” and that she thought
he “wasn’t aware of Mustaf’s not following commands.” (T108). In regard to mother, Dr.
Ellis stated that she had some “mild concerns about Mustaf’s behaviors” and that she
thinks that mother “needs help managing Mustaf’s behaviors.” (T 112-113). Dr. Ellis
also testified that with Mustaf she observed oppositional behaviors toward both parents.
(T117).
Dr. Ellis testified that Saly’s eagerness to report maltreatment by her mother could
be a sign of coaching. (T 121). In the bonding assessment, Dr. Ellis reported, “[i]t was
unknown whether her (Saly) discussion (regarding being hit by mother) was prompted or
whether she had an agenda of her own, but her approach to conversation was slightly
unusual.” (A 45). Saly also reported to Dr. Ellis that her mother had “choked” her and
“would strangle me to wake me up.” (T121, A 46). Dr. Ellis testified that Saly told her
she reported this behavior to her therapist (T122), however, Lisa Brown testified that she
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was “weak to moderate” and that Mustaf’s was “moderate.” (T110). There was also
have mentioned to her. (T79). In the CAM test “Saly obtained a raw score of 16
indicating that there is no significant problem in her relationship with her mother.” (A
54). Dr. Ellis went on to report that Saly’s responses to the CAM test indicate:
her mother sometimes irritates her but they get along well most of the time.
She usually trusts her mother. She does not usually think her mother is too
demanding and she never wishes she had a different mother. She
occasionally thinks her mother puts too many limits on her but she seldom
resents her mother. She loves her mother and things she is terrific most of
the time. She thinks there are times when her mother does not understand
her but she is rarely angry with her mother. (A 54).
Dr. Ellis testified that the Child’s Attitude Toward Father (CAF) scale was invalid
because she gave every item the highest possible rating.” (T118). Dr. Ellis testified this
rating could mean that Saly wants to live with her father so she is going to try and make
him look perfect rather than normal. (T119). Saly drew a picture of her mother, herself
and her brother when she attended the evaluation with her Father. (A 36). Dr. Ellis’
conclusions from this drawing suggest that Saly “identifies most strongly with this family
constellation.” (A 36). When Saly attend the evaluation with her mother and was asked if
she “remembered what we’re going to have you draw.” Saly responded “[t]he bad things
my mom does to us.” (T 120). Saly then proceeded to draw a picture of her mother
hitting her on her seventh birthday. (A 54). In the bonding assessment Dr. Ellis reported
that “this drawing suggests considerable rivalry between Saly and her mother although
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“never heard anything about any choking and that is something she thought Saly would
unhappy but stable. Her mother is seen as rejecting, threatening, powerful but also very
important to Saly.” (A 55). While Dr. Ellis recommending counseling between Saly and
her mother, she testified that she has “no way of knowing whether” Saly’s reports of
mistreatment “are accurate or Saly’s perception.” (T 112).
Dr. Ellis reported that both parents relationship with each other is problematic (A
40, 58) which the trial court acknowledged stating that “Petitioner and Respondent have
had an acrimonious relationship.” (LF 135).
Children’s Division Investigation
Kristen Riney, the Children’s Division Caseworker, testified that her interview
with Mustaf regarding the mailbox incident was “not very credible.” (T 181). Mustaf was
happy the whole time and his story was inconsistent. (T 181-182). The hotline she
investigated was not substantiated, but services were offered to Respondent due to the
fact that there had been five previous hotline reports. (Tr. 183). Ms. Riney testified that
the previous hotlines were unsubstantiated. (Tr. 183).
Cheikh Seye, Ph.D.
On Wednesday, June 13, 2012, Appellant testified that he was “not engaged as we
speak” but that he “plan[s] to get married in a couple – in several months from now.” (T
462). Appellant further testified that the children have not met this person, and that he
had not talked to the children about the upcoming marriage. (T 462-463). Appellant
admitted that he had never told the Guardian ad Litem about the “impending marriage.”
(T 479). When asked by the Guardian ad Litem what his plan was “in terms of
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Saly recognizes her mother as the authority figure. Saly may view their relationship as
My plan to introduce them to my future wife is very – you know, very
simple. I wanted to make sure that we resolve all the issues that are
standing, and then I would be able to sit with Saly. Saly; she’s old enough
to understand, and explain to her that I will – daddy will get married, and
when that person comes here, we’ll all sit together and – and basically go
from there. (T 480).
Appellant picked up Astou Fadiga, the woman identified as his future wife, at the St.
Louis Airport on Friday, June 15, 2013. (T 801). Ms. Fadiga entered the United States on
a fiancé visa which required her to be married within ninety days after her arrival. (T
803). On August 1, 2103, Appellant testified that he and Ms. Fadiga had started the
application for the a fiancé visa “about a year ago” and that they scheduled her trip to the
United States after she received the visa “about six months ago.” (T815-816). Appellant
only met with Stephanie Parsons five times (T 231).
Ndeye Marieme Ndiaye
Respondent testified that after the joint counseling sessions with Lisa Brown and
Saly that she tried to spend individual time with Saly as recommended by Lisa Brown. (T
533). She testified that they would read together, do crafts, that they baked a cake
together. (T 533-34). Respondent testified that when Saly was crying in the joint
counseling session she felt that Saly was getting more anxious as they were trying to get
her calmed down. (T535). She felt that the session was no longer being productive so she
felt it would be better to take Saly home and give her some space and time to calm down.
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introducing the children to this individual that you plan to marry” Appellant stated:
Respondent testified about the incident where Saly told Lisa Brown she was
denying visitation with Appellant. (T 546-547). Respondent testified that Appellant had
called without warning on Friday night as she was getting ready to celebrate Saly’s
birthday and said he was on his way to get the children. (T 546-47). Respondent tried to
reason with him and bring the children over after the party, but Appellant would not
agree. (T 547). Respondent tried to bring the children over to Appellant on Saturday, but
he would not make any arrangements with her stating he was “not at home and did not
know when he will come get the children.” (T 549). Respondent testified that since
Appellant did not give her a time to exchange the children she and the children made
plans to visit friends in Kirksville. (T 550-551). Appellant called Respondent when they
were driving back from Kirksville and Respondent delivered the children to him that
evening. (T 552-553). Respondent testified that she was unaware that Appellant had
made appointments for the children to meet with Lisa Brown and the Guardian ad Litem
the next day. (T 553).
Respondent denied that she read Dr. Ellis report to Saly or that she told Saly that if
she lived with her father he would take her out of the country. (T 610, 705-706).
Respondent testified that she has spanked the children (T 568) and that when she does
spank them she spanks them on the bottom (T 568), sometimes the leg and sometimes the
lower back (T 709). Respondent denied throwing anything at the children (T 568), or
hitting them with a flip flop or shoe (T 709). Respondent denied quizzing Saly after her
sessions with Lisa Brown (T 537). Respondent denied that she ignored a note from Saly
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(T 535).
that if she was going to be a few minutes late she would always call the school so Saly
would not worry. (T543). There was no indication that Saly or Mustaf has had any
problem with malnourishment. (T 556-57, 734). Respondent denied ever making Mustaf
take a cold shower or hitting him in the shower (T 557-560). Respondent further testified
that she had been learning other types of parenting techniques and that she had stopped
spanking the children (T 568-569). Respondent testified that some of the tools she had
learned include using a behavior chart and a reward system, to take privileges away and
use time out. (T 709).
The visitation schedule before the judgment was highly inconsistent (T 576-587).
Sometimes Appellant would call the day before he was to drive from Indiana and other
days he would call and indicate that he was on his way to pick up the children (T 578586). Respondent would try to accommodate Appellant as often as she could but he was
very unwilling to make and adhere to a schedule (T 581- 587). She testified to multiple
occasions his inconsistency with scheduling visits has adversely affected the children and
ruined pre-existing plans that Respondent has had with the children (T 546-550, 595596).
The Guardian Ad Litem
The Guardian ad Litem testified she met with both parties (T 727, 740),
interviewed the children (T 727), talked to the children’s therapist (T 235-236, 745), the
parties therapists (T 737), interviewing the children’s pediatrician (T 728) and actively
questioning each witness on cross examination during the trial.
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asking if she loved her (T 542). She denied every forgetting Saly’s lunch and testified
interviewed the children’s pediatrician, Dr. Patel. (A 21). The Guardian ad Litem
reported concerns from Dr. Patel:
when the parents are with the kids at appointments in (Dr. Patel’s) office,
Cheikh will regularly yell and accuse mother of things in front of the
children...things get to the point where the kids are crying and (Dr. Patel)
tries to make him stop, but that he won’t listen and will continue saying
negative things about the mother in front of the kids and will yell and be
very argumentative. (A21).
Dr. Patel further reported to the Guardian ad Litem that Cheikh will not let Marieme say
anything at the appointments. (A 21). As a result of these concerns the Guardian ad
Litem recommended the parties participate in counseling. (A21). The Guardian ad Litem
testified that after receiving a number of emails from the father questioning the
information she received from Dr. Patel she sent an updated email asking the parties to
disregard her previous recommendation. (T 730-731). The Guardian ad Litem testified
that Appellant did need “to work on his anger issues [and] understanding how his
negative comments about the mother in front of the kids affect the children, and coparenting issues” (T 730). The Doctor’s concerns relayed to the Guardian ad Litem as
part of her investigation was included in the Court’s findings in the judgment (LF 19, 47,
133). The Guardian ad Litem testified that she thought “the reports of abuse by the kids
have stopped” and that she thinks “there’s been some very positive discipline techniques
that have been implemented.” (LF 892). She also commended Respondent for her
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In an email to counsel, the Guardian ad Litem expressed concerns she had after she
to try to accommodate Appellant. (T 735).
The Guardian ad Litem recommended Respondent see Shelly Hamilton for
individual therapy (T 156). Respondent saw Shelly Hamilton for individual therapy
beginning January 5, 2012. (T 136-137, 598-599). Ms. Hamilton worked with
Respondent “primarily on parenting, quality parenting skill and what that looks like” and
“appropriate punishment and discipline” (T 139-140). Ms. Hamilton reported that
Respondent was very responsive to her suggestions and was “very good about doing her
homework.” (T 139). In Respondent’s counseling sessions she has been working on
alternative parenting techniques such as behavior charts, a reward system and timeouts
rather than spanking and yelling. (T 140). Respondent implemented these techniques and
felt they were working well for her and the children. (T 140, 600-601).
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flexibility in the scheduling arrangements and she said that she went “above and beyond”
I.
THE TRIAL COURT ERRED IN AWARDING CUSTODY PURSUANT TO
MOTHER’S AMENDED PARENTING PLAN BECAUSE THE COURT IS
REQUIRED TO INCLUDE WRITTEN FINDINGS DETAILING THE SPECIFIC
RELEVANT FACTORS THAT MADE THE PARTICULAR ARRANGEMENT IN
THE BEST INTEREST OF THE CHILDREN AND FAILED TO INCLUDE A
WRITTEN FINDING DETAILING THE SPECIFIC RELEVANT FACTORS
RESULTING IN THE REJECTION OF A PROPOSED ARRANGEMENT, IN
THAT CUSTODY WAS IN DISPUTE, THAT EACH PARTY SUBMITTED
THEIR PROPOSED CUSTODY ARRANGEMENT, THAT THE COURT FOUND
MOTHER’S PARENT PLAN WAS IN THE BEST INTEREST OF THE
CHILDREN, THAT THE COURT DID NOT INCLUDE SPECIFIC RELEVANT
FACTORS FOR ADOPTING MOTHER’S PARENT PLAN, AND THE COURT
MADE NO WRITTEN FINDING DETAILING THE SPECIFIC RELEVANT
FACTORS RESULTING IN THE REJECTION OF FATHER’S PROPOSED
PARENT PLAN.
Davidson v. Fisher, 96 S.W.3d 160 (Mo.App. W.D. 2000)
Mo. Rev. Stat. § 452.375 (2011)
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POINTS RELIED ON
THE TRIAL COURT ERRED IN AWARDING JOINT LEGAL AND JOINT
PHYSICAL CUSTODY OF THE MINOR CHILDREN PURSUANT TO THE
TERMS OF MOTHER’S PARENTING PLAN BECAUSE A COURT SHALL NOT
MODIFY A PRIOR CUSTODY DECREE UNLESS IT FINDS A CHANGE HAS
OCCURRED IN THE CIRCUMSTANCES OF THE CHILDREN OR THEIR
CUSTODIAN AND THAT MODIFICATION IS NECESSARY TO SERVE THE
BEST INTEREST OF THE CHILDREN, IN THAT THE CUSTODY
PROVISIONS OF THE PRIOR DECREE WERE MODIFIED AND NO FINDING
OF CHANGE IN CIRCUMSTANCES WAS MADE AS REQUIRED PURSUANT
TO §452.410.1 RSMo.
Mantonya v. Mantonya, 311 S.W.3d 392 (Mo.App. W.D. 2010).
Heslop v. Sanderson, 123 S.W.3d 214 (Mo.App. W.D. 2003).
Clayton v. Sarratt, 387 S.W.3d 439 (Mo.App. W.D. 2013)
Bather v. Bather, 170 S.W.3d 487 (Mo.App. W.D. 2005)
Russell v. Russell, 210 S.W.3d 191 (Mo. banc 2007)
Mo. Rev. Stat. § 452.410 (2011)
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II.
THE TRIAL COURT ERRED IN MODIFYING THE SUPPORT PROVISIONS
OF THE JUDGMENT BECAUSE SUPPORT MAY BE MODIFIED ONLY UPON
A SHOWING OF CHANGED CIRCUMSTANCES SO SUBSTANTIAL AND
CONTINUING AS TO MAKE THE TERMS UNREASONABLE AND THE
SUPPORT SHALL BE DETERMINED IN CONFORMITY WITH CRITERIA
SET FORTH IN § 452.340 RSMo, IN THAT THE EVIDENCE FAILED TO SHOW
A CHANGE OF CIRCUMSTANCES SUFFICIENT TO MODIFY THE PRIOR
SUPPORT ORDER AND THE COURT’S AWARD MADE NO FINDINGS THAT
THE SUPPORT AMOUNT CONFORMED WITH THE CRITERIA SET FORTH
IN § 452.340.8 and Rule 88.01.
Woolridge v. Woolridge, 915 S.W.2d 372 (Mo.App. W.D. 1996)
Katsantonis v. Katsantonis, 245 S.W.3d 925 (Mo.App. E.D. 2008)
Neal v. Neal, 941 S.W.2d 501 (Mo. banc 1997)
Tompkins v. Baker, 997 S.W.2d 84 (Mo.App. W.D. 1999)
Mo. Rev. Stat. § 452.340.8 (2011)
Mo. Rev. Stat. § 452.370 (2011)
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III.
THE TRIAL COURT ERRED IN ENTERING JUDGMENT DENYING
APPELLANT’S MOTION TO MODIFY BECAUSE THE COURT’S
CONCLUSION THAT JOINT LEGAL AND JOINT PHYSICAL CUSTODY IS IN
THE BEST INTEREST OF THE CHILDREN IS UNSUPPORTED BY
SUBSTANTIAL EVIDENCE, IS WITHOUT SUPPORT IN THE EVIDENCE, AND
REFLECTS A MISAPPLICATION OF THE LAW, IN THAT ALL OF THE
PROBATIVE EVIDENCE ADDUCED AT TRIAL, AND REASONABLE
INFERENCES, DEMONSTRATES THAT SUBSTANTIAL CHANGE IN THE
CIRCUMSTANCES OF CHILDREN AND CUSTODIANS OCCURRED AND
THAT MODIFICATION OF CUSTODY IS NECESSARY TO SERVE THE BEST
INTERESTS OF THE CHILDREN.
McCubbin v. Taylor, 5 S.W.3d 202 (Mo.App. W.D. 1999)
Burkhart v. Burkhart, 876 S.W.2d 675 (Mo. App. W.D. 1994)
In re Marriage of Campbell, 868 S.W.2d 148 (Mo. App. S.D. 1993)
Portwood-Hurt v. Hurt, 988 S.W.2d 613 (Mo. App. W.D. 1999)
In re Marriage of Sisk, 937 S.W.2d 727 (Mo.App. S.D. 1996)
Mo. Rev. Stat. § 452.370 (2011)
Mo. Rev. Stat. § 452.375 (2011)
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IV.
THE TRIAL COURT ERRED IN ENTERING JUDGMENT THAT JOINT
LEGAL AND JOINT PHYSICAL CUSTODY IS IN THE BEST INTEREST OF
THE CHILDREN BECAUSE THE COURT WAS REQUIRED BY §§ 452.375.13
and 452.375.2(6) TO MAKE SPECIFIC FINDINGS OF FACT THAT AWARDING
CUSTODY TO RESPONDENT IS IN THE BEST INTEREST OF THE
CHILDREN AND THE ARRANGEMENT BEST PROTECTS THE CHILDREN
FROM FUTURE HARM, IN THAT SUBSTANTIAL EVIDENCE WAS
ADDUCED AT TRIAL TO SUPPORT A HISTORY AND PATTERN OF ABUSE
BY RESPONDENT AGAINST THE MINOR CHILDREN.
Loumiet v. Loumiet, 103 S.W.3d 332 (Mo.App. W.D. 2003)
Herbert v. Harl, 757 S.W.2d 585 (Mo.banc 1988)
Gant v. Gant, 923 S.W.2d 527 (Mo. App. W.D. 1996)
Cunningham v. Cunningham, 143 S.W.3d 647 (Mo.App. E.D. 2004)
Mund v. Mund, 7 S.W.3d 401 (Mo. banc 1999)
Mo. Rev. Stat. § 452.375.13 (2011)
Mo. Rev. Stat. § 452.375.2(6) (2011)
Mo. Rev. Stat. § 455.010 (2011)
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V.
I.
THE TRIAL COURT ERRED IN AWARDING CUSTODY PURSUANT TO
MOTHER’S AMENDED PARENTING PLAN BECAUSE THE COURT IS
REQUIRED TO INCLUDE WRITTEN FINDINGS DETAILING THE SPECIFIC
RELEVANT FACTORS THAT MADE THE PARTICULAR ARRANGEMENT IN
THE BEST INTEREST OF THE CHILDREN AND FAILED TO INCLUDE A
WRITTEN FINDING DETAILING THE SPECIFIC RELEVANT FACTORS
RESULTING IN THE REJECTION OF A PROPOSED ARRANGEMENT, IN
THAT CUSTODY WAS IN DISPUTE, THAT EACH PARTY SUBMITTED
THEIR PROPOSED CUSTODY ARRANGEMENT, THAT THE COURT FOUND
MOTHER’S PARENT PLAN WAS IN THE BEST INTEREST OF THE
CHILDREN, THAT THE COURT DID NOT INCLUDE SPECIFIC RELEVANT
FACTORS FOR ADOPTING MOTHER’S PARENT PLAN, AND THE COURT
MADE NO WRITTEN FINDING DETAILING THE SPECIFIC RELEVANT
FACTORS RESULTING IN THE REJECTION OF FATHER’S PROPOSED
PARENT PLAN.
In Davidson v. Fisher, 96 S.W.3d 160,164 (Mo.App. W.D. 2000), the trial court
made specific findings on factors 3, 4 and 6 of §452.375.2 and made a finding required by
§452.375.4. Mother appealed arguing that the court did not consider all the relevant
factors required by Mo. Rev. Stat. §452.375.2. Id. at 162. In Davidson, the court held that
Section 452.375.6 does not require a trial court to “specifically discuss each of the eight
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RESPONDENT’S ARGUMENT
factors that made a particular arrangement in the best interest of the child. Id. at 164. The
Davidson court further stated that “the purpose of the statutory revision was to assure that
all pertinent considerations were described by the trial court so as to allow for more
meaningful appellate review.” Id.
The trial court in this case made findings as required by Mo.Rev.Stat. §452.375.4
(2011) and Mo.Rev.Stat. §452.375.6 (2011). In the Judgment the court stated, “After due
consideration, the Court further finds that in determining custody, the factors listed in
Section 452.375.2(1) to (8), detailing the specific relevant factors that make the chosen
arrangement in the best interest of the children must be considered” (LF 130). The trial
court then proceeded to make findings on each of the eight factors listed in §452.375.2.
(LF 16-21, 46-48, 130-135). After each finding the Court states either “this factor favors
Mother,” “this factor favors Father,” “this factor favors both parents,” or “this factor
favors neither parent.” (LF 16-21, 46-48, 130-135). This language by the trial court
indicates the relevant factors the trial court considered in making a “particular
arrangement in the best interest of the child” and detailing “the specific relevant factors
resulting in the rejection of such arrangement” as required by Mo. Rev. Stat §452.375.6
(2011). After making findings on the eight factors required by §452.375.2, the trial court
made eight additional findings the trial court considered in making its decision which are
as follows:
2. Court further considers the following:
a)
Court notes that Petitioner and Respondent have had an
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factors listed in Section 452.375.2,” but rather is required to set out the specific relevant
judgment of dissolution.
b)
The failure to communicate was only worsened when the
Respondent relocated to the state of Indiana.
c)
Respondent’s desire to maintain a weekly relationship
with the children is commendable; yet, the constant unsureness of
when the visitation would begin and end further exacerbated the
problems between the parties.
d)
Petitioner (sic) is commended for fostering the
relationship with the father by permitting visitation every
weekend without court order.
e)
Petitioner should not have been made subject to
Respondent’s demands of the time and day that he would be in
Columbia. Likewise, the Respondent could have been more
responsive to Petitioner’s schedule.
f)
Neither party was cognizant of the extreme effect this
behavior had on the children.
g)
During Father’s testimony of 6-13-12 he indicated that he
was planning on getting married in several months and that his
finance did not live in the United States, yet on June 15, 2012, he
picked up his fiancé at the St. Louis Airport for an extended visit
in the United States with his children.
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acrimonious relationship prior to and since the entry of the
Court finds Father’s testimony on his plans with regard to
marriage disingenuous. Such behavior is concerning to the court
as how it might have a negative impact on the academic, social
and moral development of the children. (LF 21, 48, 135).
Paragraphs 2 g and h of the Judgment contain more relevant factors the court considered
in rejection of Appellant’s Proposed Parenting Plan. Furthermore, these additional
findings address the public policy statement set forth in Mo. Rev. Stat. §452.375.4. Mo.
Rev. Stat. §452.375.4 (2011) states “the court shall determine the custody arrangement
which will best assure both parents participate in such decisions and have frequent,
continuing and meaningful contact with their children so long as it is in the best interest
of the child.” The trial court specifically considered the public policy of frequent,
continuing and meaningful contact with the parents in paragraphs 2 a-f of the Judgment
before finding that “it is in the best interest of the minor children that the parties be
awarded joint legal and joint physical custody of the minor children pursuant to the terms
of the Petitioner’s Parenting Plan” and then adopting Petitioner’s Parenting Plan as in the
best interest of the minor children” (LF 135-136). This analysis by the trial court
complies with the requirements of §452.375.4 and §452.375.6.
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h)
THE TRIAL COURT ERRED IN AWARDING JOINT LEGAL AND JOINT
PHYSICAL CUSTODY OF THE MINOR CHILDREN PURSUANT TO THE
TERMS OF MOTHER’S PARENTING PLAN BECAUSE A COURT SHALL NOT
MODIFY A PRIOR CUSTODY DECREE UNLESS IT FINDS A CHANGE HAS
OCCURRED IN THE CIRCUMSTANCES OF THE CHILDREN OR THEIR
CUSTODIAN AND THAT MODIFICATION IS NECESSARY TO SERVE THE
BEST INTEREST OF THE CHILDREN, IN THAT THE CUSTODY
PROVISIONS OF THE PRIOR DECREE WERE MODIFIED AND NO FINDING
OF CHANGE IN CIRCUMSTANCES WAS MADE AS REQUIRED PURSUANT
TO §452.410.1 RSMo.
“When reviewing a child custody judgment, more deference is given to the trial
court than in any other type of case.” Mantonya v. Mantonya, 311 S.W.3d 392, 395
(Mo.App. W.D. 2010).
A Judgment of Dissolution of Marriage was entered on April 25, 2008. (LF 30).
The Judgment granted Appellant and Respondent joint legal and joint physical custody of
the minor children and the Joint Parenting Plan was found in best interest of the minor
children. (LF 30). The joint custody schedule was as follows:
Wednesday 5:00 p.m. to Friday 5:00 p.m.
Dad
Friday 5:00 p.m. to Monday 5:00 p.m.
Mom
Monday 5:00 p.m. to Wednesday 5:00 p.m.
Dad
Wednesday 5:00 p.m. to Friday 5:00 p.m.
Mom
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II.
Dad
Monday 5:00 p.m. to Wednesday 5:00 p.m.
Mom
(A 3)
On or about April 1, 2009, Appellant filed a Motion to Modify to relocate the children’s
residence to Indiana. (LF 33). The motion to relocate the children was denied on
December 2, 2009. (LF 36). No change to the parenting time was ordered. (LF 36). A
Judgment and Order of Modification of Decree of Dissolution of Marriage was entered on
December 2, 2009 modifying child support. (LF 36).
This court has held that it will “affirm the judgment of the trial court on any
ground supported by the record.” Heslop v. Sanderson, 123 S.W.3d 214, 221 (Mo.App.
W.D. 2003). There was abundant evidence at trial that since Appellants move to Indiana
and during the course of this litigation Appellant and Respondent have had significant
issues with exchanges and custodial schedules due to the fact that there was not a
workable parenting plan.
The visitation schedule before the judgment was highly inconsistent (T 576-587).
Sometimes Appellant would call the day before he was to drive from Indiana and other
days he would call and indicate that he was on his way to pick up the children. (T 578586). Respondent would try to accommodate Appellant as often as she could but he was
very unwilling to make and adhere to a schedule. (T 581- 587). Respondent testified to
multiple occasions that his inconsistency with scheduling visits has adversely affected the
children and ruined pre-existing plans that Respondent had with the children. (T 546-550,
595-596).
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Friday 5:00 p.m. to Monday 5:00 p.m.
the Missouri Supreme Court’s ruling in Russell v. Russell, 210 S.W.3d 191 (Mo.banc
2007), holding that the appropriate standard for modification of a residential schedule in a
joint custody plan does not require a substantial change in circumstances. Further, the
court in Clayton stated that it is necessary to “look at all of the evidence presented to
determine if the judgment is supported by the record.” Id. at 447. The parties in Clayton,
as the parties in the present case, both filed motions alleging that there had been a change
in circumstances sufficient to justify a modification and both parties presented evidence.
Id. at 441-442. In its analysis, the Clayton Court stated that “[a]lthough Father does not
believe that the findings of the trial court were supported by substantial evidence,
‘[h]aving pleaded and presented evidence of a change in circumstances warranting
modification of custody, Father cannot now be heard to complain that there was no
change in circumstances.’” Id. at 448 (quoting Bather v. Bather, 170 S.W.3d 487
(Mo.App. W.D. 2005)). “Therefore, ‘[Father’s] only cognizable argument on appeal is
that the trial court’s modification of the parenting time was not in [B.C’s] best interest.’”
Id.
In this case the trial court’s judgment is supported by the record and additionally,
the trial court made findings under paragraph two of the judgment (set out fully in Point I)
which would indicate that a modification of the residential schedule was in the best
interests of the children.
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In Clayton v. Sarratt, 387 S.W.3d 439 (Mo.App.W.D.2013), the Court followed
THE TRIAL COURT ERRED IN MODIFYING THE SUPPORT PROVISIONS
OF THE JUDGMENT BECAUSE SUPPORT MAY BE MODIFIED ONLY UPON
A SHOWING OF CHANGED CIRCUMSTANCES SO SUBSTANTIAL AND
CONTINUING AS TO MAKE THE TERMS UNREASONABLE AND THE
SUPPORT SHALL BE DETERMINED IN CONFORMITY WITH CRITERIA
SET FORTH IN § 452.340 RSMo, IN THAT THE EVIDENCE FAILED TO SHOW
A CHANGE OF CIRCUMSTANCES SUFFICIENT TO MODIFY THE PRIOR
SUPPORT ORDER AND THE COURT’S AWARD MADE NO FINDINGS THAT
THE SUPPORT AMOUNT CONFORMED WITH THE CRITERIA SET FORTH
IN § 452.340.8 and Rule 88.01.
The trial court did not err in modifying the support provisions of the judgment.
“The Trial Court is required to determine and find for the record the presumed correct
child support amount pursuant to a correct Form 14 calculation.” Woolridge v.
Woolridge, 915 S.W.2d 372, 379 (Mo.App 1996). “The determination and finding of the
amount can be done by either accepting for the record a Form 14 amount calculated by a
party, or in the event it ‘rejects’ the Form 14 amounts of the parties as being incorrect,
doing its own Form 14 calculation..” Id. at 381-82. Appellant did not file a Form 14
during the pendency of the case, nor did Appellant enter a Form 14 into evidence during
the trial. (LF 8-22, 38-45; T vii). Respondent entered her Form 14 into evidence at trial
showing a presumed child support amount of $1,369.00 (T. 519). The trial court found
for the record the presumed correct child support amount by adopting Respondent’s Form
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III.
Appellant states that there was no showing of a substantial and continuing changed
circumstance sufficient to modify the prior support order. Mo. Rev. Stat. §452.370.1
provides, in relevant part:
If the application of the child support guidelines and criteria set forth in
section 452.340 and applicable supreme court rules to the financial
circumstances of the parties would result in a change of child support from
the existing amount by twenty percent or more, a prima facie showing has
been made of a change of circumstances so substantial and continuing as to
make the present terms unreasonable, if the existing amount was based
upon the presumed amount pursuant to the child support guidelines.
Mo.Rev.Stat. §452.370.1 (2011).
The Modification Judgment entered by the Court on December 2, 2009 ordered Appellant
to pay child support to Respondent in the amount of $984.00 per month. (LF 36). This
amount was the presumed amount based on the Court’s own Form 14. (LF 36). In the
present case, the court found the presumed correct child support amount to be $1,369.00
(LF48, 136, 151). The presumed correct child support amount represented an increase in
child support of thirty-nine percent (39%) an amount greater than twenty percent (20%)
from the existing amount meeting the requirement for a prima facie showing of “changed
circumstances so substantial and continuing as to make the present terms unreasonable”
supporting modification of child support under Mo. Rev. Stat. §452.370.1 (2011).
Appellant relies on Katsantonis v. Katsantonis, 245 S.W.3d 925 (Mo.App. E.D.
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14. (LF 48).
proven by detailed evidence and must also show that the prior decree is unreasonable.” Id.
at 927. The Katsantonis case can be distinguished from this case in that the Court in
Katsantonis was reviewing a modification of maintenance, not child support. Id. at 926-7.
Appellant further states that the trial court’s award made no findings that the
support amount conformed with the criteria set forth in §452.240.8 and Rule 88.01. A
“Form 14 must be used in any proceeding involving the determination of child support.”
Neal v. Neal, 941 S.W.2d 501, 504 (Mo. banc 1997). Appellant failed to file a Form 14
or to enter a Form 14 into evidence at trial. (LF 8-22, 38-45; T vii). In Tompkins v.
Baker, 997 S.W.2d 84, 91 (Mo.App. W.D. 1999) the Father failed to file a Form 14 with
the trial court. Father then appealed the trial court’s ruling on child support arguing the
modification of support “was not supported by substantial evidence, that Mother failed to
introduce any substantial evidence of a substantial and continuing changed circumstance
making the prior award unreasonable”. Id. In Tompkins, this Court held that Fathers
“failure to [file a Form 14] has waived appellate review of that issue.” Id. at 92. In its
analysis the Court further stated that “one party’s failure to file a Form 14 effectually
acknowledges agreement with the Form 14 provided by the other party,” and that, “in
order to complain to this court about the trial court’s award of child support, Father is
required to have submitted a Form 14 to the trial court.” Id. at 91. Accordingly, in the
present case Appellant failed to file a Form 14 and has therefore waived appellate review
of the modification of child support.
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2008), arguing that “changed circumstances sufficient to support modification must be
THE TRIAL COURT ERRED IN ENTERING JUDGMENT DENYING
APPELLANT’S MOTION TO MODIFY BECAUSE THE COURT’S
CONCLUSION THAT JOINT LEGAL AND JOINT PHYSICAL CUSTODY IS IN
THE BEST INTEREST OF THE CHILDREN IS UNSUPPORTED BY
SUBSTANTIAL EVIDENCE, IS WITHOUT SUPPORT IN THE EVIDENCE, AND
REFLECTS A MISAPPLICATION OF THE LAW, IN THAT ALL OF THE
PROBATIVE EVIDENCE ADDUCED AT TRIAL, AND REASONABLE
INFERENCES, DEMONSTRATES THAT SUBSTANTIAL CHANGE IN THE
CIRCUMSTANCES OF CHILDREN AND CUSTODIANS OCCURRED AND
THAT MODIFICATION OF CUSTODY IS NECESSARY TO SERVE THE BEST
INTERESTS OF THE CHILDREN.
“On appeal it is presumed that the trial court reviewed all the evidence and
awarded custody in light of the best interest of the child.” Burkhart v. Burkhart, 876
S.W.2d 675, 678 (Mo.App. W.D. 1994). “An appellate court should exercise the power
to set aside a custody decree or judgment on the basis that it is against the weight of the
evidence with caution and with a firm belief that the decree or judgment is wrong.” In re
Marriage of Campbell, 868 S.W2d 148, 153 (Mo.App. S.D. 1993).
1. The Court Ordered Bonding Assessment
Just because the order does not specifically reference the Bonding Assessment
conducted by Dr. Ellis or Dr. Ellis’ testimony does not mean that the trial court did not
consider that evidence in its determination. While the results of the bonding assessments
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IV.
“moderate.” (T110), there was also evidence that “Saly and her mother get along well
most of the time” and that Saly “loves her mother and thinks she is terrific most of the
time.” (A 54). There was also evidence that both parents could use help managing
Mustaf’s behavior and that some of Saly’s responses could have been coached or that she
was promoting her own agenda. ( T 108, 112-113, 121; A 45).
Dr. Ellis described mother’s interactions with the children as “pretty neutral”
further stating “[t]hey weren’t negative, but pretty neutral.” (T 111). Dr. Ellis testified
that “Saly seemed completely comfortable in her mother’s presence.” (T 111). While Dr.
Ellis testified that mother was “somewhat detached” during the interview Dr. Ellis later
admitted that mother’s lack of animation and demeanor “[m]ight just be her personality.”
(T 111).
Dr. Ellis testified that both parents had issues with management of Mustaf. (T 108,
112-113). She reported that father’s management was “a bit weak” and that she thought
he “wasn’t aware of Mustaf’s not following commands.” (T108). In regard to mother, Dr.
Ellis stated that she had some “mild concerns about Mustaf’s behaviors” and that she
thinks that mother “needs help managing Mustaf’s behaviors.” (T 112-113). Dr. Ellis
also testified that with Mustaf she observed oppositional behaviors toward both parents.
(T117).
Dr. Ellis testified that Saly’s eagerness to report maltreatment by her mother could
be a sign of coaching. (T 121). In the bonding assessment, Dr. Ellis reported, “[i]t was
unknown whether her (Saly) discussion (regarding being hit by mother) was prompted or
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indicate that Saly’s bond with her mother was “weak to moderate” and that Mustaf’s was
unusual.” (A 45). Saly also reported to Dr. Ellis that her mother had “choked” her and
“would strangle me to wake me up.” (T121; A 46). Dr. Ellis testified that Saly told her
she reported this behavior to her therapist (T122), however, Lisa Brown testified that she
“never heard anything about any choking and that is something she thought Saly would
have mentioned to her. (T79).
Saly’s reports seem to be in direct contradiction to the Child’s Attitude Toward
Mother (CAM) test. In the CAM test “Saly obtained a raw score of 16 indicating that
there is no significant problem in her relationship with her mother.” (A 54). Dr. Ellis
went on to report that Saly’s responses to the CAM test indicate:
her mother sometimes irritates her but they get along well most of the time.
She usually trusts her mother. She does not usually think her mother is too
demanding and she never wishes she had a different mother. She
occasionally thinks her mother puts too many limits on her but she seldom
resents her mother. She loves her mother and things she is terrific most of
the time. She thinks there are times when her mother does not understand
her but she is rarely angry with her mother. (A 54).
Dr. Ellis testified that the Child’s Attitude Toward Father (CAF) scale was “invalid
because she gave every item the highest possible rating.” (T118). Dr. Ellis testified this
rating could mean that Saly wants to live with my father, so she is going to make him
look perfect rather than normal. (T119).
When asked to draw pictures of you and members of your family doing something,
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whether she had an agenda of her own, but her approach to conversation was slightly
evaluation with her Father. (A 36). Dr. Ellis’ conclusions from this drawing suggest that
Saly “identifies most strongly with this family constellation.” (A 36). When Saly attend
the evaluation with her mother and was asked if she “remembered what we’re going to
have you draw” Saly responded “[t]he bad things my mom does to us.” (T 120). Saly
then proceeded to draw a picture of her mother hitting her on her seventh birthday. (A
54). In the bonding assessment Dr. Ellis reported that “this drawing suggests
considerable rivalry between Saly and her mother although Saly recognizes her mother as
the authority figure. Saly may view their relationship as unhappy but stable. Her mother
is seen as rejecting, threatening, powerful but also very important to Saly.” (A 55).
While Dr. Ellis recommending counseling between Saly and her mother, she testified that
she has “no way of knowing whether” Saly’s reports of mistreatment “are accurate or
Saly’s perception.” (T 112).
Dr. Ellis reported that both parents relationship with each other is problematic (A
40, 58) which the trial court acknowledged stating that “Petitioner and Respondent have
had an acrimonious relationship.” (LF 135).
2. Lisa Brown’s testimony, opinions and recommendations
Lisa Brown testified that she made two hotlines. (T 86-87) She testified that she
was contacted both times by Children’s Division investigators and that she shared her
concerns with the Children’s Division workers (T 87). Both of the hotline reports she
made were unsubstantiated. (T 85).
Respondent testified that after the joint counseling sessions with Lisa Brown and
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Saly drew a picture of her mother, herself and her brother when she attended the
533). She testified that they would read together, do crafts, that they baked a cake
together (T 533-34). Respondent testified that when Saly was crying in the joint
counseling session she felt that Saly was getting more anxious as they were trying to get
her calmed down. (T 535). She felt that the session was no longer being productive so
she felt it would be better to take Saly home and give her some space and time to calm
down. (T 535).
Respondent testified about the incident where Saly told Lisa Brown she was
denying visitation with Appellant. (T 546-547). Respondent testified that Appellant had
called without warning on Friday night as she was getting ready to celebrate Saly’s
birthday and said he was on his way to get the children. (T 546-47). Respondent tried to
reason with him and bring the children over after the party, but Appellant would not
agree. (T 547). Respondent tried to bring the children over to Appellant on Saturday, but
he would not make any arrangements with her stating he was “not at home and did not
know when he will come get the children.” (T 549). Respondent testified that since
Appellant did not give her a time to exchange the children she and the children made
plans to visit friends in Kirksville. (T 550-551). Appellant called Respondent when they
were driving back from Kirksville and Respondent delivered the children to him that
evening. (T 552-553). Respondent testified that she was unaware that Appellant had
made appointments for the children to meet with Lisa Brown and the Guardian ad Litem
the next day. (T 553).
Respondent denied that she read Dr. Ellis report to Saly or that she told Saly that if
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Saly that she tried to spend individual time with Saly as recommended by Lisa Brown. (T
Although Lisa Brown recommended that Appellant have custody and that
Respondent have visits with the children every other weekend and continue family
therapy, Ms. Brown testified that Appellant and Respondent have not been able to
communicate and get along as for as setting up a schedule since she has been involved in
the case. (T 641). Ms. Brown also testified that the custody battle is affecting Saly. (T
636).
3. The Guardian ad Litem’s investigation, testimony and custody recommendations.
“The trial court may accept, modify or reject the guardian’ recommendations as it
sees fit.” Portwood-Hurt v. Hurt, 988 S.W.2d 613, 619 (Mo.App. W.D. 1999)(quoting In
re Marriage of Sisk, 937 S.W.2d 727, 733 (Mo.App. S.D. 1996)) “The GAL’s function
includes acting as an arm of the trial court in assuring that all of the requisite information
bearing on the best interests of the child will be presented for consideration.” Sisk at 384.
In the present case, the Guardian ad Litem investigated by meeting with both parties (T
727), interviewing the children (T 727), talking to the children’s therapist (T 235-236,
745), the parties therapist (T 737), interviewing the children’s pediatrician (T 728) and
actively questioning each witness on cross examination during the trial.
In an email to counsel, the Guardian ad Litem expressed concerns she had after
interviewing the children’s pediatrician, Dr. Patel. (A 21). The Guardian ad Litem
reported concerns from Dr. Patel:
when the parents are with the kids at appointments in (Dr. Patel’s) office,
Cheikh will regularly yell and accuse mother of things in front of the
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she lived with her father he would take her out of the country. (T 610, 705-706).
tries to make him stop, but that he won’t listen and will continue saying
negative things about the mother in front of the kids and will yell and be
very argumentative. (A21).
Dr. Patel further reported to the Guardian ad Litem that Cheikh will not let Marieme say
anything at the appointments. (A 21). As a result of these concerns the Guardian ad
Litem recommended the parties participate in counseling. (A21). The Guardian ad Litem
testified that after receiving a number of emails from the father questioning the
information she received from Dr. Patel she sent an updated email asking the parties to
disregard her previous recommendation. (T 730-731). The Doctor’s concerns relayed to
the Guardian ad Litem as part of her investigation was included in the Court’s findings in
the judgment (LF 19, 47, 133).
In his brief Appellant states that “any concerns the court may have had regarding
Father and Mother arguing in front of the children was obviated by the Father attending
counseling sessions with Stephanie Parsons.” (App. Brief 42). Obviously this is not the
case as the Court made a specific finding that “Petitioner and Respondent have had an
acrimonious relationship” that “the failure to communicate was only worsened when the
Respondent relocated to the state of Indiana, and that “[n]either party was cognizant of
the extreme effect this behavior had on the children.” (LF 21, 48, 135-136). Appellant
only met with Stephanie Parsons five times (T 231).
It is clear that the Guardian ad Litem fulfilled her duties and conducted an
extensive investigation in this case. As stated in the Portwood-Hurt and Sisk cases, the
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children....things get to the point where the kids are crying and (Dr. Patel)
for consideration. However, the trial court “is not bound by the opinion or
recommendation of the Guardian ad Litem” (Portwood-Hurt at 619).
4. The Ex Parte Communication
The trial court did not error in its determination of Father’s credibility. Appellant
claims that the basis of the trial court’s determination arises out of the hearing on the
content of an exparte communication between Respondent and the Court. Appellant’s
claims are incorrect. At a status review hearing held on July 12, 2012, the trial court
specifically stated, “I gave Mr. Seye an extended visit of .. about two weeks, a little bit
over. I wanted to know how it went. That’s why I set it - I purposely did it. I was
waiting till that got done and I sent out a notice because I wanted to know how the visit
went.” (T 764). The Court further stated that the hearing “had nothing to do with
receiving the letter and that the file had been sent downstairs to send out notices” when
the letter was received. (T 764). This would support the trial courts statement that the ex
parte communication was not the reason for the August 1, 2013 hearing. At the July 12,
2102 status hearing the trial court informed the parties that the evidence presented at the
hearing on August 1, 2012 would be “limited to what happened during this period of
time... since...visitation started on the 15 th ” (T 770) which gave all parties an opportunity
to prepare and present their evidence.
On August 1, 2012, the court stated that Appellant’s fiancé is “someone that meets
within the statutory factors I’ve got to consider as those persons who would have an
impact, and I don’t recall him testifying that she was coming anytime soon for me to
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Guardian ad Litem’s role is to investigation and present the information to the trial court
819). The Court further stated that “this is one of the reasons I set this for additional
evidence today.” (T 819)(emphasis added).
On Wednesday, June 13, 2012, Appellant testified that he was “not engaged as we
speak” but that he “plan[s] to get married in a couple – in several months from now.” (T
462). Appellant further testified that the children have not met this person, and that he
had not talked to the children about the upcoming marriage (T 462-463). Appellant
admitted that he had never told the Guardian ad Litem about the “impending marriage.”
(T 479). When asked by the Guardian ad Litem what his plan was “in terms of
introducing the children to this individual” Appellant stated:
My plan to introduce them to my future wife is very – you know, very
simple. I wanted to make sure that we resolve all the issues that are
standing, and then I would be able to sit with Saly. Saly; she’s old enough
to understand, and explain to her that I will – daddy will get married, and
when that person comes here, we’ll all sit together and – and basically go
from there. (T 480).
Appellant testified on June 13, 2012. (T 462). Additional evidence was heard on June 14,
2102. (LF 11-12). This would have been the perfect opportunity to inform the trial court
that his future wife was flying into the St. Louis Airport the very next day on Friday, June
15, 2013 and that she would be coming to the United States on a fiancé visa which would
required them to be married within ninety days. (T 801, 803). However, Appellant chose
not to do so, even when the Guardian ad Litem continued her line of questioning asking,
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explore that issue, because I would have wanted to know more about this person.” (T
and his fiancé, Astou Fadiga, had started the application for a the visa “about a year ago”
and that they scheduled her trip to the United States after she received the visa which was
“about six months ago.” (T815-816). If Ms. Fadiga’s visa was approved during the time
frame in Appellant’s testimony, the visa would have been approved by approximately
February 2013, well before the hearing on June 13, 2013 when Appellant testified that he
was not engaged. The trial court’s finding that Appellant’s “testimony on his plans with
regard to marriage disingenuous” is supported by the evidence.
5. The Court’s analysis of the Parities Intent to Relocate
The Court’s consideration of factor seven (7) of §452.375.2 and its finding that
this fact disfavored Father was not in error and was not a misapplication of the law. Mo.
Rev. Stat. §452.375.2(7) states “[t]he court shall consider all relevant factors
including...the intention of either parent to relocate the principal residence of the child.”
(emphasis added). In support of his position Appellant cites McCubbin v. Taylor, 5
S.W.3d 202 (Mo.App. W.D. 1999). In the McCubbin case the parties resided in Jefferson
City, Missouri. Id. at 205. After notification to Father, Mother and the minor child moved
to Poplar Bluff, Missouri. Id. Father filed a Motion to Show Cause and Modification
seeking custody after a missed visitation. Id. The McCubbin case can be distinguished
from the present case in that the principal residence of the child had already been
relocated because the child resided primarily with Mother, the relocating parent. The
Court in McCubbin held that “[T]he intent to relocate factor is not applicable in this case
as at the time of the court’s determination of what custody arrangement was in the best
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“Is she in your home country.” (T 480). On August 1, 2103, Appellant testified that he
was not an issue in McCubbin since the residence of the child would not be affected. In
this case, the children have resided primarily with Respondent in Columbia, Missouri
since Appellant’s relocation to Indiana. (T 3-4). In addition, a majority of Respondent’s
visits with the children occurred in Columbia, Missouri after he relocated. (T 266-279;
284-302). Appellant relocated to Indiana in July 2009. (T 406). In 2009 the trial found
that “the move to Indiana would not be in the children’s best interest.” (LF 36). The
Court was correct to consider this factor in its determination because if Appellant was
granted sole custody or if his residence was used as the principal residence for mailing
and educational purposes of the children the principal residence of the children would be
relocated to Indiana. Since the children’s principal residence would have to be relocated,
it was appropriate for the trial court to consider and make a finding of Mo. Rev. Stat.
§452.375.2 (7).
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interest of the child, Mother was already residing in Poplar Bluff.” Therefore this factor
THE TRIAL COURT ERRED IN ENTERING JUDGMENT THAT JOINT
LEGAL AND JOINT PHYSICAL CUSTODY IS IN THE BEST INTEREST OF
THE CHILDREN BECAUSE THE COURT WAS REQUIRED BY §§ 452.375.13
and 452.375.2(6) TO MAKE SPECIFIC FINDINGS OF FACT THAT AWARDING
CUSTODY TO RESPONDENT IS IN THE BEST INTEREST OF THE
CHILDREN AND THE ARRANGEMENT BEST PROTECTS THE CHILDREN
FROM FUTURE HARM, IN THAT SUBSTANTIAL EVIDENCE WAS
ADDUCED AT TRIAL TO SUPPORT A HISTORY AND PATTERN OF ABUSE
BY RESPONDENT AGAINST THE MINOR CHILDREN.
“As to an award of child custody, the trial court is granted broad discretion, and its
decision will be affirmed unless the appellate court is firmly convinced that the welfare of
the children requires a different disposition.” Loumiet v. Loumiet, 103 S.W.3d 332, 336
(Mo.App. W.D. 2003). “In reviewing an award of child custody, we presume that all
evidence was considered by the trial court.” Id. at 336. In its review an Appellate Court
“view[s] the evidence in the light most favorable to the trial court’s judgment.” Id.
In accordance with Mo. Rev. Stat. §452.375.6 (2011), the trial court made written
findings on each of the eight factors listed in subsection two of §452.375.6. (LF 16-21,
46-48, 130-136). According to the trial court, the majority of the factors favored Mother
or both parents. (LF 16-21, 46-48, 130-136). There was only one factor that favored
father. (LF 16-21, 46-48, 130-136). In regard to Mo. Rev. Stat. §452.375.2(6), the trial
court stated, “[t]he Court finds that this factor favors both parents. Neither parent nor the
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V.
make a finding of a history of abuse or a finding of a pattern of domestic violence as
defined in section 455.010. (LF 16-21, 46-48, 130-136).
Section 455.010 defines “abuse” as “the occurrence of any of the following acts,
attempts or threats against a person who may be a protected person pursuant to this
chapter, except abuse shall not include abuse inflicted on a child by accidental means by
an adult household member or discipline of a child, including spanking, in a reasonable
manner.” Mo.Rev.Stat. §455.010 (2011). Respondent testified that she has spanked the
children (T. 568) and that when she does spank them she spanks them on the bottom (T
568), sometimes the leg and sometimes the lower back (T 709). Respondent denied
throwing anything at the children (T 568), or hitting them with a flip flop or shoe (T 709).
There was no testimony presented that Respondent’s spanking was unreasonable.
Respondent further testified that she had been learning other types of parenting
techniques and that she had stopped spanking the children (T 568-569). Respondent
testified that some of the tools she had learned include using a behavior chart and a
reward system, to take privileges away and use time out. (T 709).
In the instant case, there were allegations of abuse, but the evidence presented
indicted that there was not any findings of abuse. Lisa Brown testified that none of the
hotline calls that she made were substantiated (LF 85). Kristen Riney, the Children’s
Division Caseworker, testified that her interview with Mustaf regarding the mailbox
incident was “not very credible.” (T 181). Mustaf was happy the whole time and his story
was inconsistent. (T 181-182). The hotline she investigated was not substantiated, but
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children has any mental or physical health issues.” (LF 47, 134). The trial court did not
hotline reports. (Tr. 183). Ms. Riney testified that the previous hotlines were
unsubstantiated. (Tr. 183). Dr. Ellis never indicated that there was abuse by Respondent.
She testified that she had some “mild concerns about Mustaf’s behaviors and that she
thought “some management help” from Respondent “would be beneficial.” (Tr. 112). In
regard to Saly, Dr. Ellis testified that Saly was “eager to talk about her mistreatment of
(sic) her mother” and that Dr. Ellis “had no way of knowing whether that’s accurate or
Saly’s perception.” (Tr.112). The Guardian ad Litem testified that she thought “the
reports of abuse by the kids have stopped” and that she thinks “there’s been some very
positive discipline techniques that have been implemented.” (LF 892).
Respondent denied quizzing Saly after her sessions with Lisa Brown (T 537).
Respondent denied that she ignored a note from Saly asking if she loved her (T 542). She
denied every forgetting Saly’s lunch and testified that if she was going to be a few
minutes late she would always call the school so Saly would not worry. (T543). There
was no indication that Saly or Mustaf has had any problem with malnourishment. (T 55657, 734). Respondent denied ever making Mustaf take a cold shower or hitting him in the
shower (T 557-560).
“The trial court is in the best position to judge the credibility of the witnesses and
may believe all, part or none of any witness’s testimony.” Herbert v. Harl, 757 S.W.2d
585, 587 (Mo. banc 1988). “The trial court is in the best position to judge the credibility
of the witnesses and to assess the character of the parties.” Gant v. Gant, 923 S.W.2d 527,
531 (Mo.App. W.D. 1996). In Gant, the Court stated that “instances of domestic violence
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services were offered to Respondent due to the fact that there had been five previous
weight to be given the various factors.” Id. at 530. The court further stated that “the trial
court also had the opportunity to see the parties testify and is in the best position to judge
the credibility of the witnesses and to assess the character of the parties.” Id. at 531.
In the present case, the Court noted in the Judgment that “Petitioner and
Respondent have had an acrimonious relationship prior to and since the entry of the
Judgment of Dissolution.” (LF 21, 48, 135). The Court also found that “neither party was
cognizant of the extreme effect this behavior had on the children.” (LF 21, 48, 136).
Finally, the Court found that “Father’s testimony on his plans with regard to marriage
disingenuous. Such behavior is concerning to the Court as how it might have a negative
impact on the academic, social and moral development of the children. (LF 21, 48, 136).
In this case the trial court made specific findings as required by §452.375.6 on
each of the factors listed in §452.375.2(1) to(8). (LF 16-21, 46-48, 130-136). In those
findings the trial court did not make any written findings regarding domestic violence or
abuse. This case is factually similar to Cunningham v. Cunningham, 143 S.W.3d 647
(Mo.App. E.D.2004), wherein the Court stated, “[a]ccording to Rule 73.01, if the trial
court does not make explicit findings, we can presume that the trial court made implicit
findings in accordance with the result reached.” (citing Mund v. Mund, 7 S.W.3d 401,
402 (Mo.banc 1999)).
In Cunningham, wife testified to several incidents of domestic violence during the
marriage. Id. at 652-653. In its judgment, “the trial court did not make any written
findings regarding domestic violence” and wife appealed arguing that “based on the
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are to be viewed as important;” however the court did not “agree that we can codify the
violence occurred, and that such a finding would be against the weight of the evidence.”
Cunningham at 653. As the Appellant does in the instant case, the wife in Cunningham
relies on Gant v. Gant, 892 S.W.2d 342 (Mo.App. W.D. 1995). Cunningham at 653.
The Cunningham court found that the facts of that case were distinguished from Gant
because the husband in Cunningham “denied wife’s allegations of physical abuse and
threats, and testified that he never touched or assaulted the wife.” Id. As in Cunningham,
the present case can be distinguished from Gant. Respondent never admitted to abusing
the children. She testified that she had spanked the children (T 568) and that sometimes
the spanking would occur as slaps on their legs or lower back (T 709). However,
spanking done in a reasonable manner is not abuse. Mo.Rev.Stat. §455.010.1 (2011). In
the present case the evidence supports the trial courts judgment.
CONCLUSION
In view of the forgoing, the Respondent submits that the judgment of the trial court
should be affirmed.
Respectfully submitted,
/s/ Linda G. Harris
Linda G. Harris, MBE 46459
SHURTLEFF FROESCHNER HARRIS, LLC
25 N. 9 th Street
Columbia, MO 65201
Phone: (573) 449-3874
Fax: (573) 875-5055
Lindah@tranquility.net
ATTORNEYS FOR RESPONDENT
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evidence in this case, it cannot be presumed from the trial court’s silence that no domestic
I hereby certify, pursuant to Rule 84.06 (c) of the Missouri Supreme Court Rules
of Civil Procedure, as follows:
1.
This brief complies with the information required by Rule 55.03;
2.
Respondent’s Brief complies with the limitations contained in Rule
84.06(b) as it contains 11,051 words.
CERTIFICATE OF ELECTRONIC MAILING
I also certify that a PDF version has been filed electronically.
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true copy of Respondent’s Brief, Appendix
was served on Appellant’s attorney of record through the electronic filing system on
January 31, 2014:
James C. Ochs
Ochs & Kline, Attorneys, P.C.
149 N. Meramec, 2 nd Floor
St. Louis, MO 63105
/s/ Linda G. Harris
Linda G. Harris,
Attorney for Respondent
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CERTIFICATE OF COMPLIANCE