1 

## Missouri Court of Appeals Southern District Division Two

CHARLES R. FONNER, ) ) Petitioner

- Respondent, ) )

vs. ) No. SD33252 ) BRANDY N. LYMAN, f /k/a BRANDY ) Filed August 20 , 2015 N. FONNER, ) ) Respondent

- Respondent, ) )

vs. ) ) RANDY LYMAN and ) SHANNON LYMAN, ) ) Intervenors

- Appellants. )

APPEAL FROM THE CIRCUIT COURT OF BARRY COUNTY
Honorable Samuel C. Jones, Associate Circuit Judge

AFFIRMED

Charles R. Fonner (“Father”) and Brandy N. Lyman (f/k/a Brandy N. Fonner ) (“Mother”)

were married and have three minor children together . Father brought an action to dissolve the
marriage. Mother’s parents and the appellants in this appeal , Randy and Sha nn on Lyman
(“Grandparents”), intervened in the dissolution action. Upon the stipulation and agreement of all
parties, the trial court, on March 8, 2012, entered a dissolution judgment that, among other2 things, awarded joint legal and joint physical custody of the ch ildren to Father, Mother
, and
Grandparents.
Less than two months later, on April 23, 2012, Grandparents initiated this modification

action
, alleging that a substantial and continuing change in circumstances ha d occurred such that
it would be in the children’s best interest for Grandparents to be award ed their sole legal and
physical custody. Father filed a counter motion alleging a substantial and continuing change in

circumstances had occurred such that it wou ld be in the best interest of the children for only
Father and Mother to have their joint legal and joint physical custody.
Following a two

- day trial and various after

- trial motions, the trial court entered a

modification judgment on November 13, 2013, awa rding Father and Mother joint legal and joint
phys ical custody of the children and granting Grandparents specific visitation. N o party had
requested the trial court to make any specific findings of fact , as allowed by Rule 73.01(c). 1 T he

trial court grat uitously mad e , among others not relevant to this appeal, the following express
findings of fact in it s modification judgment:

• [T]he Court finds that there has not been a continuing and substantial change in circumstances regarding the minor chil dren and th eir custodian [ Father ] upon facts that have arisen since the prior decree or that were unknown to the Court at the time of the prior decree.

• [A]s the parties had a joint legal custodial arrangement and due to the almost immediate estrangement of the [Mothe r] from [Grandparents] after the entry of the prior Judgment and the parties’ inability to communicate, the Court finds that a modification is in the best interests of the minor children.

1 Rule 73.01(c) provides, in relevant part:
The court may, or if requested by a party shall, include in the opinion findings on the controverted mater ial 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 rule references are to Missouri Court Rules (2015).3 • The record is replete with evidence that immediately following the e ntry of the prior Stipulated Judgment that the [Grandparents] and parents were unable to communicate in a joint legal custodial arrangement. The conflict and turmoil that resulted is not i n the children’s best interests.

• Father is willing to actively perf orm his function as father to the children and has the ability to do so. Mother is willing to actively perform her function as mother to the children and has the ability to do so.

• The Court finds that [Father] is a fit and proper person to have custody of the children. The Court finds that [Mother] is a fit and proper person to have custody of the children.

• The Court finds that third party custody is not in the best interest of the children.

• [I]t is in the best interests of the children for the [Father] a nd [Mother] to have joint legal and joint physical custody of the minor children [

. ]
In this appeal of the modification judgment, Grandparents do not challenge the
evidentiary basis of the modification judgment or of any factual findings expressed in it

. Rather,
relying exclusively upon and limiting themselves to the trial court’s expressed findings of fact
, Grandparents claim in their sole point relied on that the trial court erroneously applied section

452. 410.1 to eliminate their status as joint legal a nd physical custodians of the children because
that section “required a finding that a substantial change in circumstances occurred in order for
[their] status as joint legal and physical custodian to be modified

. ” 2 Based upon their

foundational factual p remise that “the modification judgment expressly found that no substantial
change occurred since the original judgment,” they contend that “[t]he trial court applied the best

2 Section 452.410.1, RSMo 2000, provides, in pertinent part:

... 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 pri or 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 t he best interests of the child.4 interest of the children standard in eliminating” their “legal custody and physic al custody

status[.]”

“ On appeal, the trial court ’ s judgment will be affirmed 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. ” J.T.P. v. P.F. , 44 0 S.W.3d 497, 500 (Mo.App. 2014)

. Grandparents’ claim
that the trial court erroneously applied section 452.410.1 falls within the last category

.
The factual premise of Grandparents’ point

— “ the modification judgment expressly found
that no substantial change occurred s ince the original judgment ”

— is flawed in two respects : (1)
the modification judgment does not specifically say that ; and (2) Grandparents fail to account for
the requirement in Rule 73.01(c) that in a court

- tried case “[a]ll fact issues upon which no

spec ific findings are made shall be considered as having been found in accordance with the result

reached

. ” Rule 73.01(c); see Ivie v. Smith , 439 S.W.3d 189, 200 (Mo. b anc 2014)

. First, under the dissolution judgment, the children had four custodians: Father, Mother
, and Grandparents. While the trial court made a specific finding of no substantial change in

circumstances as to the children and as to Father, it made no specific finding or findings as to the

existence or non

- existence of Mother’s or Gran dparents’ change in circumstances, substantial or

otherwise , since the dissolution judgment

. Second, while Grandparents are correct that section 452.410.1 applies to the modification
of joint legal and joint physical custody and requires a factual determin ation of changed

circumstances 3 of the children or their custodian, see section 453.410.1; Russell v. Russell , 210

3 Grandparents argue that this change in circumstances must be substantial, even though that term in not in the statute. See Russell , 210 S.W.3d at 197 (“Courts should not require a ‘substantial’ change from the circumstances of the original judgment where the modification s ought is simply a rearrangement in a joint physical custody schedule.”). We need not address that issue because Grandparents do not challenge the evidentiary support for the judgment, but only challenge the trial court’s application of section 452.410.1. Our analysis of that alleged legal error is the same regardless of whether the change in circumstances required by section 452.410.1 in these circumstances must be substantial.5 S.W.3d 191, 197 (Mo. b anc 2007) , they fail to proffer any argument or rationale for why we , as
required by Rule 73.01(c), would not deem the factual determinations required by section
452.410.1 to have been made by the trial court in accordance with the result reached in the
modification judgment. 4 S ection 452.410.1 authorized the trial court to modify the dissolution
judgment’s joint legal and joint physical custody award to Father, Mother
, and Grandparents if it

made a factual determination that a change had occurred in the circumstances of a custodian,

which in this case include d Mother and Grandparents
, based upon facts that h ad arisen since the
dissolution judgment or that were unknown to the court at the time of the dissolution judgment.

In the absence of a specific finding of fact that no change in circumstances of Mother and
Grandparents had occurred , Rule 73.01(c) mandate s that we consider that the trial court
implicitly made such findings of fact in accordance with its result in modifying the custody
provisions of the dissolution judgment. Grandparents do not assert or offer any legal authority
supporting that the trial court was required to make an express finding or findings of fact related

to Mother ’ s or Grandparents ’ circumstances since the dissolution judgment

. They likewise do

not challenge the evidentiary support for any Rule 73.01(c) implicit findings in that regard. 5

Because Grandparent s ’ point and argument in support of their claim of legal error are

founded upon a flawed factual premise, neither offers any cogent analytical basis upon which we

could find the trial court erred in its appli cation of section 452.410.1

. Grandparent s ’ point is

denied
, and the trial court’s modification judgment is affirmed.

4 Section 452.410.1 also requ ires a trial court determination that the modification is necessary to serve t he best interests of the children. Grandparents do not challenge the trial court’s explicit or implicit best interest findings in any respect, so we will not address that issue any further. 5 Indeed, Grandparents note in their brief that “[a]ll inferences favoring the prevailing parties, [Grandparents] cannot dispute the evidence comprehensively demonstrated changed circumstances.” They also state in their brief that “the Trial Court in the instant cause engaged in a changed circumstances analysis, correctly determining that [Grandpar ents’] relationship with [Mother] deteriorated.”6 GARY W. LYNCH, J.

– Opinion author

DON E. BURRELL, P.J.

– concurs
WILLIAM W. FRANCIS, Jr., J.

– concurs