IN THE MISSOURI COURT OF APPEALS 

WESTERN DISTRICT 

JENNIFER ROBIN MOORE,

Appellant,

v.

JARED MOORE,

Respondent.

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WD84782

FILED: May 17, 2022

Appeal from the Circuit Court of Henry County 

The Honorable Harold L. Dump, II, Judge

Before Division One: Lisa White Hardwick, P.J., and

Alok Ahuja and Mark D. Pfeiffer, JJ.

Jennifer Moore (“Mother”) appeals from the judgment of the Circuit Court of 

Henry County, which dissolved her marriage to Jared Moore (“Father”). Mother 

contends that the provision of the judgment awarding Father sole legal custody of 

the parties’ two children is against the weight of the evidence. We affirm.

Factual Background

Mother and Father married in 2016, and separated in May of 2019. They had 

two children during their marriage. Mother filed a petition for dissolution of the 

marriage in June 2019. The dissolution proceeding was tried to the court in three 

hearings between January and April 2021. 

Father and Mother filed several parenting plans. Although the parenting 

plans differed concerning the parties’ respective parenting time, and concerning 

child support arrangements, all of the parties’ proposed parenting plans requested 

that they be awarded joint physical and joint legal custody of the children. Mother’s 
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proposed parenting plan specified that the children would be homeschooled, and left 

unvaccinated, while Father’s proposal provided that the children would attend

public school in his residential district, and receive all required vaccinations.

Lauren Knuth served as an occupational therapist for one of the children, 

who had been diagnosed with autism. Knuth recommended that the child attend a 

public school to access special education programs in the district. Knuth also 

testified that the child would benefit from social interactions in the classroom.

Mother hired Rocky Lee as a private investigator to investigate Father “on 

and off for a six-week period.” Lee testified that he placed surveillance cameras to 

watch Father’s residence.

During his testimony, Father admitted that he had made “bad choices” with 

alcohol in the past, but he claimed that he did not currently have an alcohol 

problem. Father testified that he never drank around the children, and that he was 

never intoxicated during his video calls with the children while they were in 

Mother’s custody. Father testified that Mother told him that she could get him fired 

from his job, and afterwards he was laid off from his job because someone 

wrongfully reported to his employer that Father had lost his driver’s license. 

During two exchanges of the children, Mother called the police to report Father 

driving without a license, with the intent of having him arrested. During both 

incidents, Father waited for police to arrive, and only left with the children after 

proving to the responding officers that he did indeed have valid driving privileges, 

or a licensed driver available to transport him. 

Mother testified that she believed Father was lying to her about who he had 

watching the children, that the children came back from his house with medical and 

psychological problems, and that Father was an alcoholic with an angry and 

depressed demeanor while drinking. Mother stated that she had found child 

pornography on Father’s computer. Mother told the court that Father had been 
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abusive to the children in the past, although she did not report it. Mother admitted

that she does not believe what Father tells her, and that she hired the investigator 

Lee to prove that Father was lying. Mother testified that she worries for the 

children’s safety while they are staying with Father. Despite this, Mother 

acknowledged that she does not call or have videoconferences with the children 

while they are in Father’s custody, even though she is entitled to that 

communication.

Mother testified to three separate occasions in which she took the children to 

the hospital immediately following a custody exchange, once for bruised fingers, 

another time for a 101-degree fever, and a third time when one of the children was 

purportedly unresponsive. On each of these occasions, Mother blamed Father, and 

did not communicate about the medical visits to Father. During one of the hospital 

visits, Mother told medical personnel that she was not going to call Father because 

“I do not trust him, and he will lie anyways.”

Mother submitted as an exhibit a text conversation between herself and 

Father, which reflected that Father was identified as “Narc Asshole” in her phone. 

Mother admitted telling Father’s boss and his employer that she believed Father 

was going to lose his driver’s license – an exercise which the circuit court found was 

an attempt to have Father fired. Mother also acknowledged that she had made 

several posts on Facebook calling Father “filth,” accusing Father of cheating on her 

during the marriage, and stating that she was contemplating taking out a billboard 

near Father’s girlfriend’s work place, accusing her publicly of having participated in 

an adulterous relationship with Father.

During her testimony, Mother was confronted with a text message exchange 

in which she told Father that she had secured alternative health insurance for the 

children, and he therefore did not need to pay the premium for insurance he had 

obtained. Despite this text exchange, she later filed a motion for contempt against 
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Father, in which she contended that he had cancelled the children’s insurance 

without her knowledge. Mother claimed she had forgotten about the exchange of 

text messages when she filed her contempt motion.

When she was asked during trial whether she believed it would be in the 

children’s best interest to have Father’s home designated as the children’s residence 

for educational and mailing purposes, Mother responded, “absolutely not.” She 

explained:

Because [Father] will not be honest with me about who's caring 

for the children. He's leaving them with random people. They're 

having a lot of issues. They're spending a week at his house. They're 

having medical issues, they're having psychological issues. He lives 

right next to a main highway with no fence.

The following colloquy occurred during Mother’s testimony, concerning 

whether she believed she could co-parent with Father:

Q. Do you think you'll ever be able to trust [Father] enough 

to co-parent with him and communicate with him on a regular basis 

about your kids?

A. I would love to be able to do that. I would love to be able 

to do that, if he could be honest with me about what's going on with 

them.

Q. When has he lied to you about what's going on with them, 

about – with the kids?

A. He – he lies – he lies about the – every – he lies about 

who's watching them, he lies about whether he's going to work and 

leaving them at home, he lies about, you know, their injuries.

When asked whether she trusted Father “to protect [her] children in his own way,” 

Mother responded that, “I don’t trust him to make good decisions.”

The guardian ad litem recommended joint legal and joint physical custody,

with Father’s home designated as the children’s address for mailing and 

educational purposes. The guardian ad litem testified about his concerns regarding 

Mother’s refusal to communicate the children’s medical visits to Father, Mother’s 
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willingness to take the children on the road and away from Father, and Mother’s 

lack of video or phone contact with the children while they were in Father’s care,

despite her accusations that he was neglecting or abusing them. The guardian ad 

litem admitted that he believed the “co-parenting relationship between these 

parents is damaged mostly because, in my opinion as it relates to best interest of 

the kids, mother’s inability to co-parent with the father because of prior history.” In 

regards to Father’s consumption of alcohol, the guardian ad litem testified that he 

did not hear “any credible evidence” that Father’s consumption was a current 

concern; the guardian ad litem also noted that Father had been exercising shared

custody of the children for an extended period of time without problems. The 

guardian ad litem expressed concerns about Mother’s desire to leave the children 

unvaccinated, and have them homeschooled, despite professional recommendations 

to do otherwise.

On May 13, 2021, the trial court entered its Judgment of Dissolution of 

Marriage granting the parties joint physical custody, but awarding Father sole legal 

custody of the children. In discussing which parent was more likely to permit the 

children to have frequent, continuing and meaningful contact with the other parent, 

the judgment makes the following findings:

During the pendency of this matter, Mother has acted in such a 

fashion as to attempt to limit the amount of time Father has with the 

children. She has called law enforcement to child custody exchanges 

claiming that Father did not have a valid driver’s license, but on both 

occasions, it was found that Father was able to drive or had a licensed 

driver and was able to leave with the children. She has attempted to 

get Father fired from his employment by contacting his employer. She 

has taken the children to the hospital after child custody exchanges 

attempting to find something to allow her to withhold visitation from 

Father. Furthermore, she hired a private investigator to track Father 

in an attempt to find something that he did wrong.

Mother actually submitted into evidence her Exhibit 8 wherein 

she has him saved in her contacts as “Narc Asshole”. This behavior is 
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concerning to the Court that Mother will continue in the future to limit 

the contact the children have with Father.

Mother testified that she had concerns for the children while in 

Father’s custody, but fails to utilize her ability to video chat with the 

children while they are in Father’s care. It would appear to the Court 

that if Mother actually had reasonable concerns about the children’s 

safety, then she would utilize every opportunity to check in on the 

children. This would include video chatting with the children when 

she was able.

The judgment also found that “Mother has such an extreme amount of animosity 

toward Father that it will make their ability to co-parent in the future difficult.” 

The circuit court’s judgment also specifically rejected Mother’s claims 

regarding Father’s current alcohol consumption:

The Court notes that Father did admit to pushing Mother while 

under the influence of alcohol in a text message. This is concerning to 

the Court that Father can behave in an aggressive manner when 

consuming alcohol. Mother is rightly concerned that Father could 

cause harm to the children when drinking. However, Father testified 

that he has followed the Court’s order and not consumed alcohol with 

the children were in his care. Mother disputes this, but was unable to 

submit any credible evidence to the contrary. The Court finds Father’s 

testimony on this fact credible.

Ultimately, although the circuit court concluded that joint physical custody 

was appropriate, its judgment awards sole legal custody to Father, “based upon 

[Mother]’s behaviors and her inability to co-parent with [Father].”

Mother appeals, challenging the circuit court’s award of sole legal custody to 

Father.

Standard of Review

“[C]hallengers to a custody award bear a heavy burden.” White v. White, 616 

S.W.3d 373, 380 (Mo. App. W.D. 2020).

“This Court will affirm the trial court's decision as to an award 

of child custody unless there is no substantial evidence to support it, it 

is against the weight of the evidence, or it erroneously declares or 

applies the law.” “The trial court has broad discretion in child custody 
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matters, and we will affirm its award of custody unless we are firmly 

convinced that the children's welfare requires otherwise.”

K.T.L. by Next Friend K.L. v. A.G., No. ED109375, 2021 WL 6121845, at *2 (Mo. 

App. E.D. Dec. 28, 2021) (citations omitted).

Appellate courts act with caution in exercising the power to set aside a 

decree or judgment on the ground that it is against the weight of the 

evidence. [A] claim that the judgment is against the weight of the 

evidence presupposes that there is sufficient evidence to support the 

judgment. The against-the-weight-of-the-evidence standard serves 

only as a check on a circuit court's potential abuse of power in 

weighing the evidence, and an appellate court will reverse only in rare 

cases, when it has a firm belief that the decree or judgment is wrong. 

When reviewing the record in an against-the-weight-of-the-evidence 

challenge, this Court defers to the circuit court's findings of fact when 

the factual issues are contested and when the facts as found by the 

circuit court depend on credibility determinations. A circuit court's 

judgment is against the weight of the evidence only if the circuit court 

could not have reasonably found, from the record at trial, the existence 

of a fact that is necessary to sustain the judgment. When the evidence 

poses two reasonable but different inferences, this Court is obligated to 

defer to the trial court's assessment of the evidence. This Court rarely 

has reversed a trial judgment as against the weight of the 

evidence . . . .

Bowers v. Bowers, 543 S.W.3d 608, 615 (Mo. 2018) (quoting S.S.S. v. C.V.S., 529 

S.W.3d 811, 815-16 (Mo. 2017)).

Discussion

Mother’s single Point asserts that the circuit court’s award of sole legal 

custody to Father was against the weight of the evidence.

Sections 452.375.5(1) and (2), RSMo, provide that, before awarding joint 

physical custody and sole legal custody to one parent, the court must consider 

“[j]oint physical and joint legal custody to both parents.” Thus, “[t]he legislature 

has ‘expressed a public policy preference for joint custody where such an 

arrangement is in the best interests of the child.’” White, 616 S.W.3d at 380 

(citation omitted). Despite that legislative preference, however,
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[j]oint custody is not appropriate and not in the best interest of the 

children when parents are unable to make shared decisions concerning 

the welfare of their children. The parents’ ability and willingness to 

communicate and cooperate is crucial in considering whether joint 

legal custody is proper. Joint legal custody may be proper even if there 

is some level of personal tension and hostility between the parents, 

provided there is substantial evidence that despite this acrimony the 

parties nonetheless have the ability and willingness to fundamentally 

cooperate in making decisions concerning the children's upbringing.

Id. (citing Morgan v. Morgan, 497 S.W.3d 359, 373 (Mo. App. E.D. 2016)). A 

judgment granting sole legal custody must be based on a finding that the parties 

lack a commonality of beliefs concerning parental decisions, and lack the 

willingness and ability to function as a unit in making those decisions. Reno v. 

Gonzales, 489 S.W.3d 900, 905 (Mo. App. W.D. 2016).

In its judgment, the circuit court specifically discussed a number of factors 

which, in its view, justified the conclusion that Mother and Father would not be 

able to effectively co-parent, and which justified an award of sole legal custody to 

Father. Those factors included:

o Mother’s and Father’s “substantial differences in opinion about 

parenting and what they feel is in the best interest of their children.” 

o Mother’s attempts to have Father arrested by calling law enforcement 

to child exchanges and falsely claiming Father did not have a driver’s 

license.

o Mother’s attempt to have Father fired from his job by calling Father’s 

employer.

o Mother’s taking the children to the hospital immediately after their 

visits with Father, without informing Father, to attempt to collect 

information to support a claim that he was abusing or neglecting the 

children.

o Mother’s use of a private investigator to follow and surveil Father.

o Mother’s listing of Father in her phone as “Narc Asshole.”

o Mother’s preference to have the children homeschooled and left 

unvaccinated, despite opposing recommendations from their therapist 

and guardian ad litem.
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o Mother’s failure to communicate with the children while they were in 

Father’s custody, despite her claims that she was concerned about 

their welfare while in his care.

With the above evidence, the trial court concluded that “Mother has such an 

extreme amount of animosity toward Father that it will make their ability to coparent in the future difficult.” The fact that Mother testified repeatedly that she 

does not trust Father, and that she believes he is consistently dishonest with her 

concerning the children’s care and welfare, additionally supports the conclusion that 

Mother and Father would be unable to successfully co-parent.

In order to challenge the circuit court’s award of sole legal custody to Father 

based on the weight of the evidence, Mother was required to “identify a challenged 

factual proposition, the existence of which is necessary to sustain the judgment” 

(here, that Father and Mother would not be able to successfully co-parent), and then 

“identify all of the favorable evidence in the record supporting the existence of that 

proposition.” Houston v. Crider, 317 S.W.3d 178, 187 (Mo. App. S.D. 2010). Yet, 

although she contends that the circuit court’s award of sole legal custody is against 

the weight of the evidence, in her argument Mother completely ignores the evidence 

described above, which plainly supports the circuit court’s conclusion that an award 

of sole legal custody to Father was warranted. Mother’s failure to acknowledge, and 

respond to, the copious evidence supporting the circuit court’s judgment requires 

that we reject her weight-of-the-evidence challenge.

Rather than addressing the evidence supporting the circuit court’s judgment, 

Mother contends that the circuit court ignored the Missouri public policy reflected 

in § 452.375.5, RSMo, which gives a preference to the award of joint legal and joint 

physical custody. As we have explained above, however, this statutory preference is 

just that – a preference. That preference is overcome where, as here, the evidence 

establishes that “parents are unable to make shared decisions concerning the 

welfare of their children.” White, 616 S.W.3d at 380. Despite the statutory 
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preference for joint legal custody, this Court has affirmed innumerable judgments 

awarding sole legal custody to one parent where the evidence warranted it,1 and we 

have reversed awards of joint legal custody where the evidence fails to demonstrate 

the parties’ ability to make joint decisions in the best interests of their children. 

See, e.g., Reno, 489 S.W.3d at 903; Halford v. Halford, 292 S.W.3d 536, 545-46 (Mo. 

App. S.D. 2009); Kroeger-Eberhart v. Eberhart, 254 S.W.3d 38, 49 (Mo. App. E.D. 

2007); Marriage of Sutton, 233 S.W.3d 786, 791-93 (Mo. App. E.D. 2007).

Mother cites several cases where appellate courts affirmed a trial court’s 

judgment granting joint legal custody, despite evidence of an acrimonious 

relationship between the parents. These decisions simply reflect, however, the level 

of deference afforded to circuit courts in making fact-intensive custody 

determinations. The fact that the circuit court in this case arguably could have

awarded the parties joint legal custody does nothing to suggest that it acted against 

the weight of the evidence in making a contrary custody award. This Court will not 

overturn a child custody award merely because the evidence may have permitted 

the circuit court to order a different custody arrangement.

Mother also argues that the circuit court’s award of sole legal custody is 

against the weight of the evidence, because neither Mother nor Father, nor the 

guardian ad litem, proposed that Father be awarded sole legal custody. The fact 

that both parties proposed parenting plans providing for joint legal custody is some 

evidence from which the circuit court could have concluded that the parties would be 

able to co-parent, despite their past mistrust and acrimony. The parties’ proposals 

were not binding on the court, however – and Mother cites no authority giving the 

 

1 See, e.g., Lynch v. Lynch, 592 S.W.3d 806, 815-16 (Mo. App. E.D. 2020); 

Meseberg v. Meseberg, 580 S.W.3d 59, 69 (Mo. App. W.D. 2019); J.F.H. v. S.L.S., 550 S.W.3d 

532, 540-41 (Mo. App. E.D. 2017); Sutton v. McCollum, 421 S.W.3d 477, 483-84 (Mo. App. 

S.D. 2013).
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parties’ proposed parenting plans dispositive weight. Section 452.375.2, RSMo, 

expressly provides that “[t]he court” – not the parties or the guardian ad litem –

“shall determine custody in accordance with the best interests of the child.” The 

statute provides that the court must consider “[t]he wishes of the child’s parents as 

to custody and the proposed parenting plan submitted by both parties,” 

§ 452.375.2(1) – but it does not give the parents’ wishes controlling weight. Indeed, 

even where the parents agree to a custody arrangement, the statute specifies that 

the court need not endorse it, if the court “determines such arrangement is not in 

the best interest of the child.” § 472.375.6. The fact that the parents may have 

submitted parenting plans – or even a joint parenting plan – is not dispositive; 

instead, the statute specifies that “in all cases, the custody plan approved and 

ordered by the court shall be in the court's discretion and shall be in the best 

interest of the child.” § 452.375.9. The fact that both parties in this case were

willing to propose a joint legal custody arrangement does not – by itself – establish 

that the award of sole legal custody was against the weight of the evidence.

Conclusion

The judgment of the circuit court, which awarded sole legal custody of the 

parties’ children to Father, is affirmed.

Alok Ahuja, Judge

All concur.