In the Missouri Court of Appeals 

Eastern District 

DIVISION TWO 

KELLY S. KEEL, ) No. ED100282 

 ) 

 Petitioner/Appellant, ) Appeal from the Circuit Court 

) of St. Louis County 

v. ) 

 ) Hon. John N. Borbonus 

EDWARD W. KEEL, ) 

 ) 

 Respondent/Respondent. ) Filed: September 2, 2014 

 ) 

 

Introduction 

Kelly S. Keel (Mother) appeals from the trial court’s Full and Final Judgment Modifying 

Family Court Judgment (judgment) entered June 25, 2013. We affirm. 

Factual and Procedural Background 

On February 18, 2010, the second marriage of Mother and Edward W. Keel (Father) was 

dissolved in Oklahoma. The parties had first married on August 30, 1997; divorced; then 

remarried on March 23, 2002. In conjunction with the dissolution, the district court of 

Comanche County, Oklahoma entered a Joint Child Custody Plan (Custody Plan or Plan) giving 

the parties joint legal and physical custody of their two children, J., born February 8, 2005, and 

W., born September 8, 2008, with Mother having primary physical custody. Pursuant to the 

Custody Plan, Father had visitation on the first and third weekends of each month from Friday 
2 

until Sunday; four weeks in the summer, divided into two fourteen-day blocks of time, and 

various holiday periods. 

The Custody Plan also provides that the parent having physical custody of the children 

shall have the discretion to decide all routine matters; but both parties shall confer and attempt to 

jointly decide matters concerning method of discipline, schools, health care, religious instruction, 

summer camps, church schools, special event trips, travel, and any other area requiring decisions 

that affect the growth and development of the children.1

The Custody Plan provides that to ensure each party’s continuing association with the 

children, “in the event of a time conflict respecting a parent’s entitlement to the physical custody 

of the children, as above provided, both parties shall work together reasonably in advance for 

alternative times for physical custody, if necessary.” 

With regard to transportation costs, the Plan provides that Father shall be responsible for 

86.9% of all visitation transportation costs to and from Mother’s home for the retrieval and 

return of the children to Mother's home associated with his visitation with the children and 

Mother shall be responsible for the remaining 13.1% of the visitation transportation costs. The 

Plan dictates that if the parent entitled to physical custody of the children is to be out of town, 

that parent shall provide to the other the first opportunity to assume physical custody of the 

children during the time of such trip. 

                                                            

1

 Specifically, the Plan provides: 

 

Both parties shall confer and attempt to jointly decide the following matters, to wit: (1) the fashion and 

manner in which the children shall be disciplined; (2) schools (such as which public or private, special 

courses, etc.) the children shall attend; (3) health care (medical, dental, mental, etc.) the children should 

receive; (4) religious instruction the children should receive; (5) summer camps, church schools and special 

event trips the children should attend; (6) travel of the children away from home, including extent, purpose, 

duration, mode, chaperone(s), etc.; and (7) any other area requiring decisions which affect the growth and 

development of the children.
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The Plan further stipulates that “each party shall be entitled to telephone the children at 

all reasonable times and the children shall be entitled to telephone their parents at any time. 

Each party shall be entitled to participate in all birthday, school or extracurricular activities of the 

children and each party shall keep the other informed of all such events on a regular basis.” 

The Plan mandates that “each party shall be equally entitled to access and have all 

medical, hospital, school and all other records of the children and neither party shall inhibit or 

interfere with such access and, in the event that any doctor, hospital, teacher or other person does 

not freely grant such access, each party shall take such action as is necessary to cause such 

access to occur.” 

Both Mother and Father agreed and signed this Custody Plan. 

At the time of the dissolution, the family had lived at Fort Sill in Oklahoma since 2006, 

as Father was a member of the United States Army. Soon after the entry of the decree in 

February 2010, Mother relocated with the children to St. Louis, Missouri. In April of 2010, 

Father was transferred to Fort Hood, Texas, where he waited for pending deployment orders to 

Iraq. In the summer of 2010, Father met his fiancée, Yanneth. 

Father’s Motion to Modify 

In July of 2011, Father registered the Oklahoma dissolution judgment and Custody Plan 

as a foreign judgment in the trial court. He also filed a Motion to Modify (motion to modify), 

alleging Mother was restricting him from reasonable contact with the children, had made 

unilateral decisions and refused to provide him information about them. Father requested the 

trial court to modify the judgment to provide longer and more frequent blocks of custody time to 

Father, provide provisions regarding contact with Father and his family in the event of 

deployment, and a reduction in child support. 
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Mother’s Answer to Motion to Modify 

On January 4, 2012, Mother filed her answer to Father’s motion to modify and a countermotion to modify. Mother alleged that Father refused to effectively communicate with her and 

joint legal custody was no longer workable; Father was inconsistent with his phone contact; 

Father had chosen not to exercise visitation times with children; and Father’s income had 

increased. Mother requested the trial court to award her sole legal custody; amend the visitation 

schedule pursuant to her Proposed Parenting Plan which decreased Father’s weekday, summer 

and holiday visitation time; order Father to pay Mother’s attorney’s fees and 100% of 

transportation costs for visitation, uncovered medical expenses, education and extraordinary 

expenses; obligate Father to maintain a life insurance policy in the amount of $1,000,000 for the 

children; and obligate Father to maintain college savings plans sufficient to cover the cost of 

tuition and books for four years at the University of Missouri-Columbia. 

Father’s Motion for Contempt and Motion to Enforce Custody 

On May 22, 2012, Father filed a motion for contempt of the Oklahoma decree and 

Custody Plan, alleging Mother had willfully violated the terms by failing to obey the provision 

requiring her to pay her 13.1% share of the children’s transportation costs; failing to abide by the 

provision allowing Father first custody of the children by leaving the children with others while 

traveling out of town rather than giving Father the right to care for the children; making 

unilateral decisions regarding the children’s health and well-being, including medical decisions; 

and advising Father she would not be consulting with him regarding further medical decisions. 

On May 22, 2012, Father also filed a motion to enforce custody, alleging that pursuant to 

the Oklahoma decree and Custody Plan, Father is to have summer visitation with the children 

June 15 through June 30 and August 1 through August 15 and pursuant to the judgment, “both 
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parties shall work together reasonably in advance for alternative times for physical custody, if 

necessary.” Father maintained he notified Mother that he received orders transferring him from 

his current base in Texas to a new base in Kansas and the time frame in which Father must clear 

his old base and report to his new base is from June 15 through June 30, and he has no input as to 

the dates he is assigned to clear a base and report to a new base. Father maintained the children 

resume school such that it is not in their best interest that he retain custody of them until August 

15 but return them to Mother’s custody prior to the start of school, so Father requested 

alternative physical custody times for his summer visitation but Mother has refused to alter the 

summer period of June 15 through June 30. Father requested an order of the court finding an 

alternative physical summer custody time for him to have the children for two weeks during the 

month of July and alter his second two weeks so the children had a weekend prior to going back 

to school in August. 

On May 23, 2012, the trial court issued an order to show cause to Mother as to why she 

should not be held in contempt of the dissolution judgment and Custody Plan, for the reasons 

stated by Father in his motion for contempt. The trial court also issued an order that Father shall 

have summer custody of the children from July 20 through August 12, 2012. 

Father’s Amended Motion to Modify and Motion for Guardian ad Litem 

On June 29, 2012, Father filed a motion for the appointment of a guardian ad litem 

(GAL) and his first amended motion to modify. In the motion for GAL, Father alleged a GAL 

needed to be appointed because of Mother’s behavior, behavior which likewise was the basis for 

the amended motion to modify. In support of both motions, Father specifically claimed Mother 

had: (1) engaged in a pattern of behavior restricting, limiting and interfering with Father’s 

physical custody times, contact with the children and legal custody rights regarding the children; 
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(2) engaged in a pattern of behavior intentionally designed to ensure Father does not have a 

frequent, continuing and meaningful relationship with the children; (3) misrepresented 

information and facts and made disparaging comments about Father directly to the children in an 

effort to alienate and destroy the relationship between the children and Father; (4) intentionally 

limited and denied Father's access to medical, educational and developmental information 

regarding the children as well as instructed others to deny and limit Father's contact and access to 

the children; (5) told Father she will not consult with Father regarding decisions that affect the 

children and she will not notify Father of medical appointments for the children; and (6) failed 

and refused to allow the children reasonable contact with their paternal grandparents, 

stepsiblings and stepmother and engaged in behaviors intended to negatively impact the 

relationship between the children and their paternal grandparents, stepsiblings and stepmother. 

In the motion for GAL, Father contended that Mother’s behavior was damaging, detrimental, and 

emotionally abusive, and would have a lifelong negative impact on the children, and it was in the 

best interest of the children that the court appoint a GAL. In the amended motion to modify, 

Father requested the court grant him sole physical custody and order Mother to pay a portion of 

his attorney’s fees. 

On July 2, 2012, the court granted Father leave to file his amended motion to modify and 

granted his motion for GAL. M. Jill Wehmer was appointed as guardian ad litem and entered 

her appearance in the case on July 11, 2012. 

On August 6, 2012, Mother answered the court’s order to show cause claiming she was 

only required to pay “reasonable” transportation costs; she is unemployed so her trips out of 

town were not “on business” as stipulated in the Custody Plan so she did not have to give Father 

first option of physical custody while she was out of town; and that he had been in Iraq for 
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twelve months while she scheduled medical appointments for the children and if he was in town 

he would be able to schedule them as well. Mother also filed her answer to Father’s amended 

motion to modify, essentially denying all of Father’s allegations of her noncompliance with the 

Custody Plan’s provisions or of any misconduct with regard to deliberately interfering with 

Father’s physical and legal relationship with his children. 

On February 25, 2013, Father filed a motion for preliminary injunction and temporary 

restraining order to prohibit Dr. Michelle Ruffy’s continued psychological treatment of J. 

On April 10, 2013, the first day of trial, Mother filed a motion to voluntarily dismiss her 

own counter-motion to modify, which the trial court denied. 

Trial 

The trial consisted of six days of testimony: April 10, 12, 15, 16, 27, and May 2, 2013. 

On May 2, 2013, J. testified in an in camera hearing. At the conclusion of J.’s testimony, 

the GAL gave her recommendation and submitted her Proposed Parenting Plan which provided 

that Father be awarded sole legal custody and sole physical custody, subject to Mother’s 

visitation rights. The GAL testified she believed transferring the children from Missouri to 

Texas, and to Father, was in the best interest of the children. The GAL testified that, in making 

her recommendation, she considered the adjustment to a new school, meeting new friends, using 

new doctors, J.’s prescription medication use, Father’s deployment history and the fact there 

could be another deployment, and the interaction that the children have with their family 

members in St. Louis including grandparents, aunts and uncles. 

After the hearing on the matter was concluded, it was submitted to the trial court with 

each party granted until May 28, 2013 to submit Proposed Judgments. On June 3, 2013, Mother 

filed a Request for Findings of Fact and Conclusions of Law, which the trial court denied on 
8 

June 4, 2013, noting that pursuant to Rule 73.01,2 at “no time prior to the introduction of 

evidence at trial, or even during the introduction of evidence throughout the trial, did either Party 

make a request on the record or otherwise for findings of fact. Rather, almost a full two months 

from the commencement of the trial herein ... [Mother] filed [Mother’s] Request for Findings of 

Fact and Conclusions of Law.” 

Judgment 

On June 25, 2013, the trial court entered its Judgment, stating that “all fact issues upon 

which no specific findings are made shall be considered as having been found in accordance with 

the results reached.” The trial court determined a substantial and continuing change had 

occurred in the circumstances of the children and parents, such that a modification was necessary 

to serve the children’s best interest. The trial court noted, “Mother’s testimony through the trial 

was wholly disingenuous and lacked credibility as to most matters relevant to the Minor 

Children’s custody, including her claimed willingness and intent to encourage and allow Father 

and the Minor Children, to have a frequent, continuing, and meaningful relationship.” It also 

found “Mother’s testimony through the trial was wholly disingenuous and lacked credibility 

regarding her claimed willingness and intent to allow Father to be equally involved in the 

decisions and matters that impact the welfare and upbringing of the Minor Children.” Further, 

the court concluded to the extent Mother made any effort to encourage and allow Father and the 

Minor Children to have a frequent, continuing, and meaningful relationship, or allow Father to 

be involved in the decisions that impact the welfare of the Minor Children, it was usually selfserving, particularly once the instant litigation was commenced, and often involved the need for 

intervention by the GAL and/or the parties’ attorneys. The trial court found Mother unable and 

unwilling to meaningfully communicate with Father in a manner that is required so that the 

                                                            

2

 All rule references are to Mo. R. Civ. P. 2011. 
9 

parties can discuss and jointly reach decisions regarding the welfare of the children. The court 

also found Mother made numerous decisions that were not in the children’s best interest. The 

trial court determined Father, unlike Mother, will not use an award of sole legal custody to 

restrict or limit Mother’s input or joint involvement; Father will make decisions that are in the 

best interest of the children, and is more likely than Mother to allow the children frequent, 

continuing, and meaningful contact with the other parent. The court awarded Father sole legal 

custody and sole physical custody, subject to Mother’s periods of visitation, per the Parenting 

Plan which was marked as Exhibit A. Each party was ordered to pay his or her own attorney’s 

fees and Mother was ordered to pay the balance of the GAL fees of $16,104.07. Mother was 

found in contempt for failure to pay Father her share of visitation transportation costs and in 

contempt of the Oklahoma decree for making unilateral decisions regarding the health and wellbeing of the children, including but not limited to medical decisions. Neither party filed posttrial motions. This appeal follows. 

Points on Appeal 

 In her first point, Mother contends the trial court misapplied the law as set forth in Rule 

73.01(c) because its judgment does not contain specific findings of fact regarding the factors 

enumerated in Sections 452.3753

 or 452.4104 as required. 

                                                            

3

 All statutory references are to RSMo 2006.

4

 Section 452.410, titled “Custody, decree, modification of, when” provides: 

 1. Except as provided in subsection 2 of this section, the court shall not modify a prior custody decree 

unless it has jurisdiction under the provisions of section 452.450 and it finds, upon the basis of facts that have arisen 

since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in 

the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the 

child. Notwithstanding any other provision of this section or sections 452.375 and 452.400, any custody order 

entered by any court in this state or any other state prior to August 13, 1984, may, subject to jurisdictional 

requirements, be modified to allow for joint custody in accordance with section 452.375, without any further 

showing. 

 2. If either parent files a motion to modify an award of joint legal custody or joint physical custody, each 

party shall be entitled to a change of judge as provided by supreme court rule. 

  
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 In her second point, Mother maintains the judgment is against the weight of the evidence 

because the trial court indicated at trial and in the judgment that it only considered one of the 

eight factors set out in Section 452.375; failed to consider whether Father having full physical 

custody was in the best interests of the children; and awarded Father custody to punish Mother. 

 In her third point, Mother claims the trial court abused its discretion and misapplied the 

law in assessing the GAL fees against her, because Father requested the appointment of the 

GAL; the court failed to consider Mother is unemployed and has no income; and Father is 

employed and has a yearly income of approximately $100,000. 

Discussion 

Points I and II – Findings of Fact 

 In her first point, Mother complains the trial court failed to make statutorily required 

findings in its judgment pursuant to Rule 73.01(c). Rule 73.01(c) and (d) provide: 

 (c) The court shall render the judgment it thinks proper under the law and the evidence. 

If a party so requests, the court shall dictate to the court reporter or prepare and 

file a brief opinion containing a statement of the grounds for its decision and the method 

of deciding any damages awarded. 

The court may, or if requested by a party shall, include in the opinion findings on 

the controverted fact issues specified by the party. Any request for an opinion or findings 

of fact shall be made on the record before the introduction of evidence at trial or at such 

later time as the court may allow. 

All fact issues upon which no specific findings are made shall be considered as 

having been found in accordance with the result reached. 

(d) Except as provided in Rule 78.07(c), a party may, but need not, file a motion for new 

trial or a motion to amend the judgment or opinion, or both, as provided by Rule 78.04. 

[Emphasis added.] Rule 78.07(c) provides: “In all cases, allegations of error relating to the form 

or language of the judgment, including the failure to make statutorily required findings, must be 

raised in a motion to amend the judgment in order to be preserved for appellate review.” 
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The record does not indicate that Mother made a request for findings of fact before the 

introduction of evidence. Rather, she made a request for findings of fact two months after the 

conclusion of trial. The trial court denied the request, as it has discretion to do under Rule 

73.01(c) when the request is untimely made. It specifically stated in its judgment, “In as much as 

neither Party filed a request for findings of fact or conclusions of law prior to the introduction of 

evidence, the Court makes only such findings as it deems necessary to state the grounds for its 

decision, if any, as required by Rule 73.01(c).” It added, “All fact issues upon which no specific 

findings are made shall be considered as having been found in accordance with the results 

reached. Mo.R.Civ.P. 73.01(a)(2).” 

Also, in contravention of Rules 73.01(d) and 78.07(c), Mother failed to file a motion to 

amend the trial court’s judgment to include statutorily required findings or factual findings. 

Mother was obligated to file such a post-trial motion to amend to put the trial court on notice of 

such an alleged error relating to the form or language of the judgment. She did not do so, and 

thus such an error alleged for the first time on appeal is not preserved. See, Crow v. Crow, 300 

S.W.3d 561, 565-66 (Mo.App. E.D. 2009); In re Marriage of Brown, 310 S.W.3d 754, 756 

(Mo.App. E.D. 2010); Barker v. Barker, 412 S.W.3d 457, 458-59 (Mo.App. S.D. 2012); Thomas 

v. Moore, 410 S.W.3d 748, 755 (Mo.App. W.D. 2013). 

However, under Point II we set forth the trial court’s findings to determine whether they 

are supported by substantial evidence, an exercise which will decide the issue presented in Point 

I regardless of its unpreserved status. This examination will also aid in the ultimate decision of 

whether the trial court considered the transfer of children’s custody to Father to be in their best 

interests and did not do so merely to punish Mother. 
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Point II – Transfer of Custody 

In her second point, Mother contends the trial court erred in transferring sole physical 

custody of the children to Father because in deciding to do so it considered only one out of the 

eight factors set forth in Section 452.375, and its decision was against the weight of the evidence 

and solely designed to punish Mother. 

An appellant faces a heavy burden to overturn the trial court’s decision relating to an 

award of child custody. Lindsey v. Lindsey, 336 S.W.3d 487, 494 (Mo.App. E.D. 2011). In the 

review of an award of custody, we are to presume the trial court considered all the evidence and 

made its award in the best interest of the children in the absence of specific findings by the trial 

court because of the trial court’s unique position for determining credibility, sincerity, character 

and other intangibles of witnesses that might not be completely revealed by the record. 

Lalumondiere v. Lalumondiere, 293 S.W.3d 110, 116 (Mo.App. E.D. 2009). 

Additionally, because the trial court has an affirmative duty to determine what is in the 

best interests of the children, we presume that the custody decision is motivated by what the 

court believes is best for the children. Lindsey, 336 S.W.3d at 494. We therefore accord a trial 

court’s determination regarding child custody greater deference than in other cases. Flathers v. 

Flathers, 948 S.W.2d 463, 471 (Mo.App. W.D. 1997). We will not disturb a trial court’s custody 

determination unless we are firmly convinced that the welfare of the children requires some other 

disposition. Lindsey, 336 S.W.3d at 494. 

Section 452.410.1, titled “Custody, decree, modification of, when” provides: 

Except as provided in subsection 2 of this section, the court shall not 

modify a prior custody decree unless it has jurisdiction under the provisions of 

section 452.450 and it finds, upon the basis of facts that have arisen since the 

prior decree or that were unknown to the court at the time of the prior decree, that 

a change has occurred in the circumstances of the child or his custodian and that 

the modification is necessary to serve the best interests of the child.... 
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With regard to change of custody, Section 452.340.7 provides: 

The general assembly finds and declares that it is the public policy of this 

state that frequent, continuing and meaningful contact with both parents after the 

parents have separated or dissolved their marriage is in the best interest of the 

child except for cases where the court specifically finds that such contact is not in 

the best interest of the child. In order to effectuate this public policy, a court with 

jurisdiction shall enforce visitation, custody and child support orders in the same 

manner. A court with jurisdiction may abate, in whole or in part, any past or 

future obligation of support and may transfer the physical and legal or physical or 

legal custody of one or more children if it finds that a parent has, without good 

cause, failed to provide visitation or physical and legal or physical or legal 

custody to the other parent pursuant to the terms of a judgment of dissolution, 

legal separation or modifications thereof. The court shall also award, if requested 

and for good cause shown, reasonable expenses, attorney’s fees and court costs 

incurred by the prevailing party. 

[Emphasis added.] 

In the instant case, the trial court found that since the Oklahoma judgment and Custody 

Plan, a substantial and continuing change has occurred in the circumstances of the children and 

parents, such that a modification was necessary to serve the children’s best interests. The court 

found the parties’ inability to communicate, cooperate, and make shared decisions concerning 

their children’s welfare makes joint legal custody inappropriate. The court noted that a 

breakdown of parental communication and cooperation is sufficient legally, in and of itself, to 

constitute a change of circumstances. 

As a matter of law, where parents cannot communicate or cooperate and where they 

cannot share decision-making regarding the welfare of their children, joint custody is improper. 

McCauley v. Schenkel, 977 S.W.2d 45, 50 (Mo.App. E.D. 1998); Brown v. Brown, 19 S.W.3d 

717, 721 (Mo.App. W.D. 2000); Section 452.410.1. “In a joint custody situation, breakdown of 

parental communication and cooperation is sufficient, in and of itself, to constitute a change in 
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circumstances.” Timmerman v. Timmerman, 139 S.W.3d 230, 237 (Mo.App. W.D. 2004); 

Hollins v. Hollins, 13 S.W.3d 669, 672 (Mo.App. E.D.2000). 

The trial court made the following findings as indicative of the parties’ inability and 

unwillingness to share decision-making regarding the welfare of children. The court determined 

these findings supported the existence of a breakdown of cooperation and communication 

between Mother and Father such that joint custody was no longer appropriate, and ultimately 

sole custody with Father was appropriate. 

[1.] Mother’s testimony throughout trial was wholly disingenuous and 

lacked credibility as to most matters relevant to the Minor Children’s custody, 

including her claimed willingness and intent to encourage and allow Father and 

the Minor Children to have a frequent, continuing, and meaningful relationship. 

[2.] [T]o the extent Mother made any effort to encourage and allow Father 

and the Minor Children to have a frequent, continuing and meaningful 

relationship, it was usually self-serving, particularly once this litigation was 

commenced, and often involved the need for intervention by the GAL and/or the 

Parties’ attorneys. 

[3.] Mother’s testimony throughout trial was also wholly disingenuous and 

lacked credibility regarding her claimed willingness and intent to allow Father to 

be equally involved in the decisions and matters that impact the welfare and 

upbringing of the Minor Children. 

[4.] [T]o the extent Mother made any effort to allow Father to be equally 

involved in the decisions and matters that impact the welfare and upbringing of 

the Minor Children it was usually self-serving, particularly once this litigation 

was commenced, and often involved the need for intervention by the GAL and/or 

the Parties’ attorneys. 

[5.] Mother seems completely oblivious to the inappropriateness and the 

significant consequences of her actions and behaviors. 

[6.] Mother is simply unable and unwilling to meaningfully communicate 

with Father in a manner that is required so that the Parties can discuss and jointly 

reach decisions regarding the welfare of the Minor Children. 

[7.] Mother made numerous decisions that are not in the Minor Children’s 

best interest, including her decision to continue [J.’s] treatment with a 

psychologist who destroyed documents utilized in treatment, did not return 

Father’s phone calls, did not disclose information about [J.’s] treatment to both 

parents, and who would not make appropriate accommodations to include both 

parents in [J’s] treatment. 

[8.] Father, unlike Mother, will not use an award of sole legal custody to 

restrict or limit Mother’s input or joint involvement in decision regarding the 

welfare of the Minor Children. 
15 

[9.] Father will make decisions that are in the best interest of the Minor 

Children. 

[10.] Father is more likely than Mother to allow the Minor Children 

frequent, continuing, and meaningful contact with the other parent. 

 

In deciding whether modification of custody would serve the best interests of a child, the 

trial court must also consider the statutory factors of section 452.375.2. Timmerman, 139 

S.W.3d at 237; In re McIntire, 33 S.W.3d 565, 572 (Mo.App. W.D. 2000). Those factors are: 

(1) The wishes of the child’s parents as to custody and the proposed 

parenting plan submitted by both parties; 

(2) The needs of the child for a frequent, continuing and meaningful 

relationship with both parents and the ability and willingness of parents to 

actively perform their functions as mother and father for the needs of the child; 

(3) The interaction and interrelationship of the child with parents, siblings, 

and any other person who may significantly affect the child’s best interests; 

(4) Which parent is more likely to allow the child frequent, continuing and 

meaningful contact with the other parent; 

(5) The child’s adjustment to the child’s home, school, and community; 

(6) The mental and physical health of all individuals involved, including 

any history or abuse of any individuals involved. If the court finds that awarding 

custody to the abusive parent is in the best interest of the child, then the court 

shall enter written findings of fact and conclusions of law. Custody and visitation 

rights shall be ordered in a manner that best protects the child and the parent or 

other family or household member who is the victim of domestic violence from 

any further harm; 

(7) The intention of either parent to relocate the principal residence of the 

child; and 

(8) The wishes of a child as the child’s custodian. 

Section 452.375.2. 

The trial court in this case states in its Judgment, “In making its determination of the best 

interest of the Minor Children, this Court must look to the statutory factors set out in Section 

452.375. Hamer v. Nicholas, 186 S.W.3d 884, 887 (Mo. Ct. App. 2006). Mo. Rev. Stat. § 

452.375.2 provides this Court shall consider all relevant factors, including....” The court then 
16 

goes on to list the eight factors set out above. After setting out the eight factors, the court 

specifically noted that it considered each one5

: 

21. The Court considered the wishes of the Parties as to custody, as well as the 

proposed Parenting Plans submitted by both Parties and the GAL. 

22. The Court considered the needs of the Minor Children for a frequent, 

continuing, and meaningful relationship with both parents and the ability and 

willingness of both parents to actively perform their functions as parents for the 

needs of the Minor Children. 

23. The Court considered the interaction and interrelationship of the Minor 

Children with both parents, step-parents, step-siblings, half-siblings, extended 

family, and all other persons of which the Court was made aware who may 

significantly affect the Minor Children’s best interests. 

24. The Court considered which parent is more likely to allow the Minor Children 

frequent, continuing and meaningful contact with the other parent. 

25. The Court considered the Minor Children’s adjustment to homes, schools, and 

community. 

26. The Court considered the mental and physical health of all individuals 

involved, including any history of abuse of any individual involved. 

27. The Court considered the intention of either parent to relocate the principal 

residence of the Minor Children. 

Thus, the court set out the eight factors listed in 452.375.2 and specifically noted that the 

law required it to consider them and that it did in fact consider them. Contrary to Mother’s 

assertions, the trial court is not required to make a detailed finding on each factor. 

Lalumondiere, 293 S.W.3d at 113. Rather, sufficient findings on the relevant factors are all that 

is required. Id.; Speer v. Colon, 155 S.W.3d 60, 62 (Mo.banc 2005) (stating that “[s]ection 

452.375.6 does not mandate the need for a written finding on all of the factors listed, but the 

relevant factors must be detailed”). 

Out of Section 452.375.2’s eight factors, factor eight was considered inapplicable by the 

trial court due to the children’s ages. With regard to factor one, each party wanted custody of the 

children as is evidenced by the existence of the case itself, to-wit: a change in custody was the 

main disputed issue; Father petitioned the court to modify the original Custody Plan so that he 

                                                            

5

 The court noted that factor eight did not apply because the children were too young to have their wishes as to 

custody considered and thus it gave it no consideration. 
17 

would have sole legal and physical custody due to Mother’s abuse of her role of primary physical 

custodian. Each parent as well as the GAL submitted proposed parenting plans outlining his or 

her own custody proposals, which are part of the record and were given due consideration by the 

court. Factors two, three, and four are clearly weighted in favor of Father as the court makes 

abundantly clear in its recitations of Mother’s inability and unwillingness to meaningfully 

communicate with Father so that they can share decision-making with regard to the children’s 

health, welfare, schooling, medication, doctors and counseling. The court found Mother’s 

decision to continue J.’s treatment with psychologist Dr. Michelle Ruffy, who had destroyed 

documents used in her treatment of J., did not return Father’s phone calls, did not disclose 

information about J.’s treatment to Father, and who would not make appropriate 

accommodations to include both parents in J.’s treatment, was not in J.’s best interest. Father 

had to file a petition for a restraining order and injunction in order to get Mother to stop taking J. 

to Dr. Ruffy. During the progression of this trial, Father had to file a motion for contempt, a 

motion to enforce custody and a motion to appoint a GAL, all because of Mother’s actions in 

failing to abide by the provisions of the original Custody Plan, provisions which were mandatory 

and specifically put in place to ensure that the noncustodial parent maintained a continuous and 

meaningful relationship with his children and to ensure each party’s continuing association with 

the children. Mother violated almost every one of those provisions, from paying 13.1% of the 

transportation costs incurred by visitation to making unilateral decisions about the children’s 

school, medication and treatment. Mother overtly sabotaged Father’s ability to communicate 

with the children’s school, teachers and doctor by telling them not to speak with Father, share 

information about the children with Father and to outright lie to Father. Mother left Father’s 

information off forms that asked for the children’s father’s information. Mother refused to work 
18 

together reasonably in advance with Father for alternative times for physical custody during 

summer vacation, to the extent that the court had to intervene to enforce Father’s summer 

custody time with his children. Mother also refused to reasonably work together with Father on 

other occasions to be flexible about visitation time with the children without good cause or 

adequate excuse. Mother went out of town on at least two trips without the children without 

giving Father first opportunity for their custody during that time, in direct violation of the 

original Custody Plan. The court found Mother’s testimony at trial in defense of her actions, 

when brought to light, disingenuous and lacking credibility. The court did not believe Mother’s 

behavior was likely to change such that anything other than a change of custody was likely to 

ensure that the children and both parents have a frequent, continuing and meaningful 

relationship. 

With regard to factors five, six, and seven, the trial court made no detailed factual 

findings as to the parties’ mental or physical health, intent to relocate, or the children’s 

adjustment to the home, school, and community. However, the court noted it specifically 

considered these factors, and the parties’ health did not appear from the record to be at issue. 

Nor did either party mention any intent to relocate in the near future. As to the children’s 

adjustment to home, school and community, the GAL via her testimony in camera stated she 

took note of that factor in making her recommendation that sole legal and physical custody being 

transferred to Father was in the children’s best interest. There was no indication in the record 

that either child would have difficulty in making the adjustment to a new school and community 

or Father’s home. 
19 

 Mother opines that the trial court’s decision was designed to punish her for her behavior. 

It is a well-settled principle regarding custody matters that custody is not to be used as a reward 

or punishment of either parent, but rather it must be based upon the best interests of the child. 

Smith v. Smith, 75 S.W.3d 815, 826 (Mo.App. W.D. 2002). The tenor and language of the 

court’s judgment is quite critical of Mother’s actions and testimony to such a degree that it may 

seem to be a reasonable deduction that the court was not pleased with Mother’s actions and thus 

the change in custody to Father’s favor was to punish her. However, it must be remembered that 

joint legal and joint physical custody had already been awarded to the parties, with Mother being 

designated primary physical custodian, by the original Oklahoma decree and Custody Plan. The 

Custody Plan set out the rules and requirements that the parties had to abide by to maintain a 

continuous and meaningful association and relationship with their children; the onus of such 

requirements realistically being on the parent who is designated the primary physical custodian –

to not abuse the power that comes with such designation. Mother, in this case, abused it. No one 

maintains Mother is not a good parent, or that Father is the better parent. However, Section 

452.375.4 provides that it is the public policy of this State that frequent, continuing and 

meaningful contact with both parents is in the best interests of the child. Mother’s conduct 

recurrently thwarted this most important policy and her testimony in the transcript indicates she 

refuses to recognize or change her behavior in this regard. Accordingly, her actions as such are 

in direct contravention of the best interests of her children. 

Interference by one parent with the other parent’s decretal rights is contrary to public 

policy and society’s interest in assuring children frequent and meaningful contact with both 

parents. In re C.N.H., 998 S.W.2d 553, 557 (Mo.App. S.D. 1999) (further citations omitted). 

Missouri has traditionally tried to maintain and encourage continued interest, love, and affection 
20 

between children and noncustodial parents because the link between them in circumstances of 

divorce, separation, or non-marriage is often uncertain at best. Id. (further citations omitted). 

Accordingly, the rule has evolved that if one parent interferes with the decretal rights of the 

other, such interference constitutes a changed condition that may justify and require a 

modification of custody provisions. Id. Likewise, one parent’s efforts to alienate a child from 

the other parent is also a changed condition that can form the basis for a change in custody. Id. 

We conclude that based on the foregoing, the trial court established custody of the 

children in this case in accordance with their best interests and Missouri’s public policy by 

transferring their physical custody to Father. The trial court made sufficient findings with 

respect to modifications in custody plans as set out in Section 452.410.1 and Section 452.340.7 

as well as the relevant general best interest factors contained in Section 452.375.2. Finally, the 

trial court’s findings are supported by substantial evidence in the record. Accordingly, Mother’s 

arguments are without merit. Points I and II are denied. 

Point III – GAL Fees 

 Each party paid $5,000 toward the GAL’s total fee of $26,104.07, leaving a balance of 

$16,104.07, which the court assessed against Mother. Mother maintains the trial court abused its 

discretion in doing so, because Father, not Mother, asked the court for the appointment of the 

GAL. 

Section 452.423.4 provides for the award and payment of GAL fees in custody cases: 

“The guardian ad litem shall be awarded a reasonable fee for such services to be set by the court. 

The court, in its discretion, may award such fees as a judgment to be paid by any party to the 

proceedings or from public funds.” Pursuant to this statute, this Court should not disturb the trial 

court’s award of GAL fees absent an abuse of discretion. Stevens v. Stevens, 977 S.W.2d 305, 
21 

310 (Mo.App. W.D. 1998). Section 452.340.7 also provides generally that “[t]he court shall also 

award, if requested and for good cause shown, reasonable expenses, attorney’s fees and court 

costs incurred by the prevailing party.” 

In this case, Father moved for the GAL’s appointment. However, it was due to Mother’s 

actions that Father and the court deemed appointment of a GAL necessary. “The court is 

permitted to consider the circumstances requiring the appointment of a guardian ad litem in 

determining the payment of guardian ad litem fees.” Stevens, 977 S.W.2d at 310. 

Furthermore, Father was the prevailing party in this case. And even so, the trial court 

still required Father to pay his own attorney’s fees. Although Mother claims she has no income 

because she is unemployed, the court found she has a college education and the ability to work 

full-time, but has not sought employment since the entry of the original judgment of dissolution. 

Therefore, the trial court used the income imputed to Mother at the time of the Oklahoma decree 

in the amount of $1,257 per month. Father’s monthly income was found to be $9,281. 

 The court was entitled to assess the balance of the GAL’s fees and expenses against 

Mother because Mother’s actions necessitated the GAL’s intervention; Father was the prevailing 

party; and the assessment of such fees is within the trial court’s discretion. Further, Mother was 

found to be in contempt of the trial court’s show cause order issued in response to Father’s 

motion for contempt for Mother’s failure to pay her share of transportation expenses, and in 

contempt of the original Oklahoma judgment’s Custody Plan by intentionally violating its terms. 

The trial court found Mother has the means to pay the balance, and Mother failed to present 

evidence to excuse her deliberate noncompliance with the underlying judgment or the prior 

decree. Accordingly, we find the trial court did not abuse its discretion in assessing the unpaid 
22 

balance of the GAL’s total fees against Mother for good cause shown. Section 452.423.4; 

Section 542.340.7. Point III is denied. 

Conclusion 

 The trial court’s judgment is affirmed.6

 __________________________________ 

 Sherri B. Sullivan, P.J. 

Mary K. Hoff, J., and Philip M. Hess, J., concur. 

                                                            

6

 Respondent’s Motion to Correct and Redact Record on Appeal is granted to the extent it identifies exhibits filed 

with this Court that were not part of the record at trial, and to any extent otherwise, is denied. 

 Petitioner’s Motion to Strike Post-Oral Argument Filing is denied.