## In the



# Missouri Court of Appeals Western District

AMANDA K. WELCOME (RUNKLES) ,

Respondent ,
v. ANTHONY WADE WELCOME ,

Appellant
.           WD 79113 OPINION FILED : August 30, 2016

Appeal from the Circuit Court of Clay County, Missouri The Honorable David Paul Chamberlain , Judge
Before Division Four : Mark D. Pfeiffer, Chief Judge Presiding, James Edward Welsh, and Edward R. Ardini, Jr., Judges Anthony Welcome ( " Father " ) appeals the circuit court ' s judgment modifying the child custody and child support provisions of the j udgment that dissolved his marriage to Amanda Welcome Runkles ( " Mother " ). Finding no error, w e affirm the circuit court ' s judgment. Background 1 In February 2011 , the Clay County Circuit Court entered a judgment dissolving the marriage of Father and Mother

. The parties were granted joint legal custody and joint physical custody of their four children, two girls and two boys, who were ages 10, 6, 5 , and 1 at the time. The court designated Mother ' s address as the children ' s for mailing and educational purposes.

1 " We view the evidence in the light most favorable to the decree and disregard all contrary inferences and evidence. " Clayton v. Sarratt , 387 S.W.3d 439, 441 n.1 (Mo. App. 2013).2

Under the original parenting plan, Father and Mother exercised a two

- week rotating schedule of equal parenting time, as follows:
Week 1 : Mon day (Mother), Tues day (Mother), Wed nesday (Father), Thurs day (Father), Fri day (Mother), Sat urday (Mother), Sun day (Mother).
Week 2 : Mon day (Mother), Tues day (Mother), Wed nesday (Father), Thurs day (Father), Fri day (Father), Sat urday (Father) , Sun day (Father). The original plan specified only Father ' s h olidays

. It stated , generally, however, that " [t] he
children shall reside with [Mother] except at the following specific times when the children shall
reside with [Father] , " indicating that Mother ' s holidays w ere those not designated as Father ' s
. It further provided that the " holiday and vacation schedules supersede the normal residence
schedule , " that the " parents and the children shall have telephone access with each other at
reasonable times , " and that the parents shall not use the children as messenger s
. The c ourt
ordered Father to pay $1,300 per month in child support . That was modified to $590 in 2012

. In February 2015, Mother filed a m otion to m odify the dissolution judgment. She sought to change Father ' s parenting time to every other weekend , from Friday at 6:00 p.m. to Sunday at 6:00 p.m. and one evening per week. Mother also sought modification of the child support

. Father filed a counter

- motion also seeking to modify the parenting plan and child support. The parties ' motions were taken up at a hearing on July 14, 2015. Mother presented
evidence that Father had prohibited her from communicating with or contacting the children when they were in Father ' s custody

. The evidence showed that Father ha d no landline telephone , had blocked Mother ' s number on his cell phone , and had relied on the children to convey messages to Mother

. In addition, Father had denied Mother custody on her holidays when they
fell during his regularly scheduled days

. Mother also testified that the children were skipping nap time, losing their school work, and getting on the wrong bus at times because the original3

custody schedule was confusing and made it hard for the children to remember which home they were going to on which day of the week

. 2
In its Judgment Order of Modification , the circuit court sustained both Mother ' s and
Father ' s motions to modify " to the extent set forth in this Order. " After making findings as to
each of the statutorily mandated " best interests " factors , the court concluded that " it is in the [children ' s] best in terest to modify the curren t custody order/parenting plan

. " The court rejected both parties ' parenting plans and adopt ed its own

. Th e court granted Father " alternating weekends from Friday after school until Monday morning before school . . . and every Wednesday after school until Thursday morning before school. " The court also set forth a specific holiday schedule for bot h Mother and Father and reestablished the requirement that

" each parent shall have reasonable access to t he minor children by telephone

. "
T he circuit court also rejected both parties ' Form 14 calculations as to child support and adopted its own

. The c ourt granted Father a 25% adjustment for his periods of custody , and, i n accordance with its Form 14 calculation, set Father ' s child support at $1,650 per month.
Standard of Review

" We will affirm the judgment of the trial court unless it is not supported by substantial evidence; it is against the weight of the evidence; or it misstates or misapplies the law. " Clayton v. Sarratt, 387 S.W.3d 439, 444 (Mo. App. 2013). " Judging credibility and assigning weight to evidence and testimony are matters f or the trial court, which is free to believe none, part, or all of

2 By the time of the modification hearing , the children were ages 14, 10, 9, and 5. The oldest child was in high school, and the three younger children attended an elementary school a block away from Mother ' s home. Father ' s home was approximately three neighborhoods away from Mother ' s.4

the testimony of any witnesses. " Id

. at 444

- 45. W e will " affirm the judgment of the trial court on any ground supported by the record. " Id . at 445. Parenting Time In Point I, Father contends that the circuit court misapplied the law in reducing his parenting time by fifty

- two overnights per year without first making a finding that there had been a change in circumstances

. Father asserts that , under section 452.410.1, RSMo, 3 the trial court

must make a finding of a change of circumstance s as to the children or their custodian as a
threshold matter before consider ing the factors found in section 452.375 .2 , and , here, " the Trial Court did not make a finding as to a change in the circumstances of anyone

. " As noted, the initial dissolution judgment de signates the parties ' custody arrangement as

"joint physical custody. " At issue is the scheduling of the custodial time betwee n the parents

. In
R ussell v. Russell , our Supreme Court held that a modification to the terms of a joint physical custody arrangement constitutes a custody modification that triggers the application of section
452.410. 210 S.W.3d 191, 196 (Mo. banc 2007). Th e Court explained that a modification to parenting time is a modification to the prior judgment, even though it does not change the custodial arrangement itself, and , therefore, the party seeking modification must show a change in circumstances p ursuant to the standard in section 452.410.1. Id . at 19 6

- 97

. Under section 452.410 .1 , the court may grant a modification if it finds, " upon the basis of facts that have arisen since the prior decree

. . . , that a change has occurred in the circumstances of the child[ren] or [their] custodian and that the modification is necessary to serve the best interests of the child[ren]

. " T he change in circumstances necessary to modify a parenting time

3 Statutory references are to the Revised Statutes of Missouri (RSMo) 2000, as updated by the 201 3 Cumulative Supplement and the 2014 Noncumulative Supplement

.5

schedule need not be substantial ; all that is requ ired is that " a change has occurred in the
circumstances of the child or his custodian. " 4 § 452.410.1; Clayton , 387 S.W.3d at 446

. " [I]f the trial court finds that a change in circumstances has occurred, it then must determine whether a modification to the prior decree and parenting plan is warranted, considering the best interests
of the children. " Prach v. Westberg, 455 S.W.3d 513, 517 (Mo. App. 2015). In considering
whether modification is in a child ' s best interests, the court is guided by section 452.375. Tienter
v. Tienter , 482 S.W.3d 483, 489 (Mo. App. 2016). 5

4 A change in circumstances necessary to modify a prior custodial arrangement must be " substantial " only if a party seeks to change the custodial de signation itself , for example, from joint custody to sole custody

. Clayton , 387 S.W.3d at 446 (citing Russell, 210 S.W.3d at 196

- 97).

5 T he circuit court in this case reviewed and discussed all of the best interest factors in section 452.375.2 and found the following seven factors to be relevant:

1. Wishes of the child ' s parents . The Court finds that both parents are seeking to modify the current custody arrangement

. Currently the parents, by agreement, have a parenting plan that requires the children to change homes several times a week

. Both parents have offered parenting plans which seek to modify this arrangement

. While the Court finds that both parties seeking to modify the current plan evidences the need for the Court to modify the current plan , this factor favors neither party

. 2. Frequent, continuing and meaningful relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father
. The Court finds that both parents have the ab ility and w illingness to actively perform their funct ion as a parent

. The Court does find that the parties have shown a complete inability to commu ni cate in person about r elatively simple matters regard in g the children [which] does make it much more difficult to co

- parent

. Having the belief that effective commu ni cat io n is a s i g ni ficant factor in one ' s abi lity to perform the function of a parent, including the ability and desire to commu nicate with the other parent , this Court finds that this factor favors mom

. 3. Interaction and interrelationship of the child with parents, siblings, and any other person who m ay significantly affect the child ' s best interest. Dad is remarried

. Mom ' s adult brother lives with mom
. The Court finds that neither of these individuals have significantly [a] ffected the minor children, either pos itively or negatively

. The Court does find that dad and step

- mom have engaged in p ri vate acts, but have inadvertently exposed the two oldest children to video excerpts of those p ri vate acts

. The Court does find that Dad has taken certa in steps such as reporting to others, such as [at] a voll eyball registration, that step

- mom i s mom and excluded mom ' s in formation

. This factor favors mom

. 4. Which parent is more likely to allow frequent, continuing and meaningful contact with the other parent. The Court finds that , while communicat io n has been very difficult between the parties , both parents have the abi lity to successfully make certa in that the other parent has meaningful contact with the other that has not occurred

. The Court finds that dad has restricted contact between himself and mom

. More importantly , dad has blocked or frustrated commu ni cat io n between mom and the children while they are in his custody

. The Court further finds that dad has taken an unreasonable interpretation of the current holiday schedule which has had the effect of l imiting certain hol i days w ith mom
. This factor favors mom

. 5
. Child ' s adjustment to the child ' s home, school and community
. The Court finds that the children (who are in school) are currently doing well

. The Court finds that the children are well ad justed to both Mom ' s and Dad ' s home

. This factor favors neither

.6

As noted, both Mother and Father filed motions to modify the original parenting plan in
this case. Mother alleged in her motion that: Since the entry of said Judgment, there has been a substantial and continuing change in circumstances which now requires that the prior Judgment of the Court be modified.
Mother noted that , contrary to the terms of the dissolution judgment, Father " has failed, refused
and declined " to allow the children telephone access with her and will not permit Mother to communicate with the children while they are visiting with him. Mother further noted that
Father has blocked Mother ' s telephone number, has told th e children they cannot call Mother when they are with him, and has told Mother that she cannot have contact with the children while they are with Father.
Father ' s counter

- motion for modification alleg ed : Since the entry of the Judgment and Decree of Dissolution, and [2012] Judgment of Modification, there have arisen changes in circumstance which are substantial and continuing in nature, which now require modification of the Court ' s previous orders. Among the " substantial and continuing changes " ident ified by Father were that " [Mother] refuses to abide by the Court ' s provisions with regards to joint legal custody of the minor children, such that the best interests of the minor children are no longer being met " and that " [Mother] refuses

. . . . 7. Intention of either parent to relocate the principal residence of the child. Since the entry of the original

. . . Judgment , mom has moved w ithout providing proper statutory notice

. The move was one block from her previous home and the Court finds that the failure to provide notice had no effect on the minor children

. No evidence was received as to any present intent ; therefore , this factor favors neither

. 8. Wishes of the child. Based on the young age of the children, while even though the Court received testimony from the two oldest children, age 14 and 10, this Court did not elicit nor receive direct testimony from either children on their wis hes

. Both children expressed frustration with the frequency of weekly exchanges, which this Court finds are not in the best interest of the children, based in part on the parties ' inability to communicate

. The commu nication at times has becomes so dysfun ctional that dad has blocked mom from communicating with him or more importantly the children while they are in his custody

. While the children did express frustration with the current plan , they did specifically express an interest in the specifics o n [sic] a new plan

. Th is factor favors neither

.7

to communicate with [Father] regarding issues concerning the minor children. " Father further specifically alleged that " it is in the best interest of the minor children for this Court to modify the terms of the parties ' Parenting Plan as well as the order of support. " Father now suggests, however, that there were no changed circumstances.
This case is closely analogous to Clayton , in that, there, too, the parents shared joint physical and legal custody and both filed motions to modify the parenting schedule. 387 S.W.3d
at 441

- 42. The circuit court granted modification on the basis that " significant, continuing and meaningful changes in circumstances have occurred regarding the minor child and his
custodians. " Id. at 447. The court properly applied section 4 52.410 in granting modification,
and this Court affirmed. Id . at 451

. There , the father argued on appeal that the mother failed to support her motion for modification with substantial evidence of changed circumstances. Id . at
447 . This Court concluded, however, that it need not address that issue because , in the father ' s own motion to modify, he had alleged a change in circumstances sufficient to justify
modification

. Id . We held that

" [h]aving pleaded and presented evidence of a change in circumst ances warranting modification of custody, Father cannot now be heard to complain that there was no change in circumstances. " Therefore, " [Father ' s] only cognizable argument on appeal is that the trial court ' s modification of the parenting time was not in [the child ' s] best interest. "
Id . at 448 (quoting Bather v. Bather , 170 S.W.3d 487, 493 (Mo. App. 2005) ) (internal citations omitted) . This Court further noted that, " [i]n reality, Father ' s complaint is that these are not the

' rearrangements ' he preferred. " Id . at 448 n.20. The same is true in this case, as well. In any event, as noted in Tienter , section 452.410.1 " does not require written findings when determining the threshold issue of whether modification is warranted due to a change i n circumstances. " 482 S.W.3d at 489 (citing Wood v. Wood, 391 S.W.3d 41, 46 (Mo. App. 2012) )

.8

Moreover, neither party in this case requested findings of fact or conclusions of law, and " [a]ll fact issues upon which no specific findings are made shall be considered as having been found in
accordance with the result reached. " Rule 73.01(c). Here, the circuit court found a change in
circumstances , as evidenced by th is finding: This Court further finds that, while in large part the minor children are presen tly doing well and are well adjusted, the inability of the parties to effectively communicate has made the current custody plan unworkable . Both parties have pled, under oath, and testified in this proceeding, that each wants this court to modify the curr ent custody order. The parties differ on the amount of " changes " that they desire, but unquestionably, both want Court intervention. The Court therefore finds that it is in the best interest to modify the current custody order/parenting plan. [Emphasis added.] As illustrated by the foregoing, we need not consider Father ' s claim that the circuit court
erred in fail ing to make a specific finding as to a change in circumstances . W e note, nevertheless, that there was sufficient evidence of a change in circumstances to support the

court ' s modification. Both Father and Mother alleged facts and presented evidence which
showed that there was a severe breakdown in communication and cooperation between them.

" I n a joint custody situation, breakd own of parental communication and cooperation is sufficient, in and of itself, to constitute a change in circumstances. " Ndiaye v. Seye , 489 S.W.3d 887, 897 ( Mo. App. 2016)

. Here, the circuit court found that " the parties have shown a complete inability to communicate in person about relatively simple matters regarding the children " and that their

" communication at times has becomes so dysfunctional that dad has blocked mom from communicating with him. " The evidence fully supports those findings. This, alone, is sufficient to constitute a change in circumstances warranting modification of the parenting plan

. See i d

. In a case such as this, t he ultimate issue on appeal is " whether there was an evidentiary basis9

supporting the modification ordered by the court. " Clayton , 387 S.W.3d at 448. Here, there clearly was. In addition, the modification of a prior custody arrangement will be upheld where " there
is substantial evidence in the record " that it is in the best interests of the child ren
. Id . A lthough
Father does not contest the circuit court ' s best interest s determination, the evidence supports th e
court ' s finding that modification of the parenting arrangement is in the child ren ' s best interest s
. In any event, our standard of review does not allow us to substitute our judgment as to the
children ' s best interests for that of the circuit court. In summary, there was evidence to support the trial court ' s finding that a change in
circumstances has occurred (as alleged by both parties ) and that the modification , as specified by the trial court, is in the best interests of the child ren
. Point denied. Child Support In Point II, Father contends that the circuit court erred in increasing his child support " to a sum of $1,750 .00 " (sic) because the court " misapplied the law in modifying parenting time by reducing 52 overnights per year from [ Father ] ' s schedule , in that child support of $590 .00 per month was appropriate had the equal parenting time of F ather and M other remained in p lace. "
Father argues that " the Trial Court ' s calculation is a misapplication of the law " because " the 52 overnights Father seeks to be restored to him [in this appeal] would entitle him to a greater line 11 adjustment than the 25% " granted by the trial court

. An award of child support is within the sound discretion of the circuit court , and this Court will not substitute its judgment for that of the circuit court. Russell , 210 S.W.3d at 198.10

Once a prima facie case for modification of child support has been made , 6 " the court then determines the child support amount ' in conformity with criteria set forth in section 452.340 and applicable supreme court rules. '" Ndiaye , 489 S.W.3d at 899 (quoting § 452.370.2 )

. As noted, after modifying Father ' s parenting time (and granting him a 25% adjustment
for his periods of custody), the circuit court c oncluded that the correct amount of child support
from Father is $1,650 per month. Father does not contest the circuit court ' s calculation or dispute that the court utilized the correct credit on line 11 of Form 14, if the Court ' s parenting plan is affirmed

. See Rule 88.01. Rather, Father ' s proposed Form 14 was based on the assumption that the circuit court would adopt his par enting time schedule

. Instead, the court
reduced his parenting time ; and, thus, Father ' s Form 14 calculation is incorrect. " An incorrect Form 14 cannot support the modification of child support. " Ndiaye , 489 S.W.3d at 899

. In summary, Point II is dependent upon the success of Father ' s claim of error in Point I.
We are denying Point I, and, therefore, Point II must also be denied , as it is premised on error in changing the parenting plan. Point denied.
Conclusion Based on the foregoing, we affirm the circuit court ' s judgment.

/s/ JAMES EDWARD WELSH James Edward Welsh, Judge

All concur.

6 A trial court may modify a child support decree where there is " a showing of changed circumstances so substantial and continuing as to make the terms [of the original award] unreasonable. " § 452.370.1. W her e the application of the child support guidelines results in a change from the existing amount by 20% or mo re, a prima facie showing of such a change in circumstances has been made. Id

.