Brian Speer, Petitioner/Appellant v. Neysa Colon, f/k/a Neysa Rosario, Respondent/Respondent.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Southern District Case Style: Brian Speer, Petitioner/Appellant v. Neysa Colon, f/k/a Neysa Rosario, Respondent/Respondent. Case Number: 25685 Handdown Date: 08/31/2004 Appeal From: Circuit Court of Jasper County, Hon. Jon Dermott Counsel for Appellant: Sara Luce Reeder Counsel for Respondent: Aaron W. Farber Opinion Summary: None Citation: Opinion Author: Phillip R. Garrison, Judge Opinion Vote: REVERSED AND REMANDED WITH DIRECTIONS IN PART; AFFIRMED IN PART. Prewitt, J., - concurs in part and dissents in part in separate opinion. Parrish, J., - concurs in separate opinion. Shrum, J., - concurs in part and dissents in part in separate opinion. Barney, J., - concurs in principal opinion. Rahmeyer, J. concurs in separate opinion. Bates, C.J., - concurs in Judge Shrum's opinion. Opinion: Brian Speer ("Father") appeals from a "Judgment of Modification" entered pursuant to his motion by which he sought to modify child custody and child support. He raises three points on appeal; the first two challenging the sufficiency of the trial court's findings with regard to child custody and child support, respectively; and the third complaining that the trial court failed to rule on his motion for contempt. (FN1) The record reveals that Father and Neysa Colon ("Mother") were married on July 17, 1989 in Oklahoma. J.A.S., born October 30, 1994, was the only child born of the marriage. When the marriage of Mother and Father was dissolved on December 6, 1996, the trial court awarded Father and Mother "joint legal and joint physical custody" of J.A.S., and granted "primary care and custody" to Mother with liberal visitation to Father. Father was required to pay $8 per month in

child support. On March 4, 1999, Mother filed a motion to modify the initial judgment, and Father filed a counter-motion to modify. The trial court's "Order of Modification of Judgment Entry" filed on March 7, 2000 ("the March 2000 modification") awarded joint physical and legal custody of J.A.S. to the parties, with Mother to be the primary physical custodian.(FN2) Further, Father's child support obligation was increased to $155 per month. Both the March 2000 modification and the initial judgment indicated that as part of Father's specified visitation Father "shall have the option to have the minor child during the working hours of Mother." On October 22, 2001, a petition was filed by the Juvenile Office of Jasper County ("the juvenile office") alleging that J.A.S. had been excessively spanked by Mother. The petition resulted from Father discovering bruises on J.A.S. When Father took J.A.S. to the emergency room of a local hospital, the findings were documented as "extensive bruising on [the child's] upper thigh and buttocks . . . . [that] appeared to be recent and caused by the use of a strap or belt." J.A.S. stated that Mother had spanked him, an allegation which Mother confirmed. The Circuit Court of Jasper County entered an order for protective custody on November 2, 2001, and removed J.A.S. from the custody of both Father and Mother. On November 14, 2001, Father filed a motion to modify the March 2000 judgment based on the physical abuse of J.A.S. by Mother. In his motion, Father sought primary physical custody of J.A.S. and alleged that Mother's abuse was a substantial and continuing change of circumstances that warranted a change in custody. Father also requested that the court order that his child support obligation cease. On February 1, 2002, Father filed a motion to consolidate his motion to modify with the pending juvenile case filed by the Department of Family Services ("DFS"). According to the motion to consolidate, Father had care and custody of J.A.S. at that time. On February 21, 2002, following a hearing, the trial court entered a finding of jurisdiction over the juvenile case. On June 3, 2002, however, the juvenile office requested that the trial court dismiss jurisdiction, based on a psychologist's recommendation that J.A.S. be returned to Mother. Additionally, both DFS and J.A.S.'s guardian ad litem suggested that the trial court's jurisdiction over J.A.S. was no longer necessary. Thereafter, the petition was dismissed on June 3, 2002. On August 23, 2002, Father filed a motion for psychological evaluation. The trial court subsequently granted the request and ordered Mother to produce J.A.S. for a psychological evaluation to be performed by a psychologist of Father's choosing. Father later filed an "Application for Contempt Citation," alleging that Mother had refused to allow Father visitation on the child's birthday and had failed to produce J.A.S. for the psychological evaluation as previously ordered. The trial court entered a modification judgment on May 7, 2003, which is the subject of this appeal (the "latest modification"). In that judgment, the trial court awarded joint legal custody but granted "primary physical custody" of J.A.S.

to Mother with Father to have "liberal and specific visitation," including every other weekend, alternating holidays (New Year's Day, Memorial Day, Labor Day, Christmas Day, J.A.S.'s birthday, Easter, Fourth of July, Thanksgiving Day, Christmas Eve), five weeks during the summer, and weekly phone contact. This judgment differed from the March 2000 modification in that the earlier award of joint physical custody was deleted, Father's summer visitation was increased from three weeks to five weeks, and Father's previous option of having the child during Mother's working hours was omitted. Additionally, Father's child support obligation was increased from $155 to $262.44 per month. The trial court also ultimately denied Father's motion to hold Mother in contempt. (FN3) This appeal followed. On review we affirm the judgment in a custody modification case if it is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law. In re D.M.S., 96 S.W.3d 167, 171 (Mo.App. S.D. 2003). When there is conflicting evidence, it is within the trial court's discretion to determine the credibility of the witnesses, and accept or reject all, part, or none of the testimony it hears. In re Marriage of Eikermann, 48 S.W.3d 605, 608 (Mo.App. S.D. 2001). In assessing the sufficiency of the evidence, we examine the evidence and its inferences in the light most favorable to the judgment. In re McIntire, 33 S.W.3d 565, 568 (Mo.App. W.D. 2000). Greater deference is given to a trial court's determination in matters involving child custody than in any other type of case. In re D.M.S. at 171. We exercise extreme caution in considering whether a judgment should be set aside on the ground that it is against the weight of the evidence, and will do so only upon a firm belief that the judgment was wrong. Id. In his first point, Father complains that the trial court erred in modifying custody by changing it from "joint legal and joint physical custody" to joint legal and "primary physical custody" in Mother, and by changing his periods of custody. Specifically, he complains that the trial court did not consider or make specific findings required by Sections 452.375.2 and 452.410; (FN4) it failed to determine the best interests of the child as required by Section 452.375.6; it did not consider or make findings with reference to the public policy declared in Section 452.375.4 as required by Section 452.375.6; it reduced his custody without making a specific finding that visitation would endanger the child as required by Section 452.400.2; and it did not consider the physical abuse of the child by Mother and make specific findings as to how the visitation arrangements serve the welfare of the child as required by Section 452.400.1. It is first necessary to determine whether the judgment at issue here resulted in a modification of a child custody decree or was a change in visitation. If it was a modification of a custody decree, Section 452.410.1 requires that the trial court have jurisdiction under the provisions of Section 452.450,(FN5) and that it find, 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. Section 452.410.1; In re D.M.S. at 173. If the judgment resulted in a change in visitation, the applicable standard is the best interests of the child, with no precursor finding of a substantial change in circumstances necessary. Section 452.400.2; In re D.M.S. at 173. Thus, the trial court is required to find that there has been a substantial change in circumstances warranting the modification, and that the modification is necessary to serve the best interests of the child, only if there is a modification of custody. Beckwith v. Giles, 32 S.W.3d 659, 664 (Mo.App. W.D. 2000). Here, Father and Mother were initially awarded joint legal and physical custody, with Mother granted the primary care and custody with liberal visitation in Father. The March 2000 modification specified that the parties would have joint physical and legal custody, Mother was designated the primary physical custodian, and there were specified times when J.A.S. would "reside" with Father. The judgment entered in the latest modification provided that the parties would have joint legal custody, Mother would have primary physical custody and Father was awarded "liberal and specific visitation" specified above. Father seems to argue that here there was a modification of custody because the latest modification eliminated the earlier award of joint physical custody and awarded primary physical custody to Mother with liberal visitation in himself. Under some authority, the elimination of the award of joint physical custody would, itself, establish that there has been a modification of custody. See Timmerman v. Timmerman, No. 62002 (Mo.App. W.D., filed July 27, 2004). (FN6) The label chosen by the trial court, i.e. custody or visitation, however, is not solely determinative. Rather, it is the substance of the finding that controls whether we are dealing with custody or visitation. In fact, by way of Section 452.375.1(3), "joint physical custody" is defined as an award to each of the parents of significant, but not necessarily equal, periods of time during which the child resides with or is under the care and supervision of each parent. Tilley v. Tilley, 968 S.W.2d 208, 213 (Mo.App. S.D. 1998). Consistent with this, our courts have held that there is often little or no practical distinction between an award characterized as joint physical custody, and one characterized as primary physical custody to a mother with liberal visitation to a father. Stewart v. Stewart, 988 S.W.2d 622, 624 (Mo.App. W.D. 1999); see also Baker v. Welborn, 77 S.W.3d 711, 716 (Mo.App. S.D. 2002). Based on these considerations, Father and Mother were effectively awarded joint physical custody in the latest modification because of the definition of that term in Section 452.375.1(3) regardless of how it was labeled by the trial court. Since we conclude that the parties were awarded joint physical custody in the March 2000 decree, and were effectively awarded custody meeting the definition of that term in the latest modification, the question arises whether there was a modification of custody here. "Modification" means to "change somewhat the form or qualities of; to alter somewhat" and by its definition implies something in existence to be changed or altered. Sisco v. Sisco, 339 S.W.2d 283,

288 (Mo.App. St.L. 1960). The latest modifications made changes to the custody provisions of the prior March 2000 modification thereby invoking the requirements of Section 452.410.1. In order to modify an award of custody, the trial court must, pursuant to Section 452.410.1, make a two-fold determination: "It must first find that a substantial change of circumstances has occurred and, once it does, it must then find that the best interests of the child would be served by modifying custody." Love v. Love, 75 S.W.3d 747, 762 (Mo.App. W.D. 2002). Thus, the first predicate for modification under Section 452.410 is a finding of a substantial change in the circumstances of the child or his custodian. Searcy v. Seedorff, 8 S.W.3d 113, 117 (Mo. banc 1999). In the present matter, the trial court found that "there ha[d] been a substantial and continuing circumstance in which to render the previous Order of Modification of Judgment Entry unreasonable."(FN7) Note that a "change" of circumstances was not included in the finding. Likewise, it did not specify what circumstances were referred to, or to whom they applied. Not having found a substantial "change" of circumstances of the "child or his custodian," the trial court failed to comply with the statute. It only follows that when a trial court finds a change of circumstances sufficient to warrant a modification of custody, it should begin by specifying not only that there were changes in circumstances, but also what those changes were and to whom they apply. Otherwise, appellate courts are left in the position of perusing the entire record to determine if there is a basis for the finding without any indication of what the trial court believed or disbelieved. If the statute requires that a trial court shall not modify a prior custody decree unless it "finds" the necessary prerequisites, requiring such a specific finding is neither unreasonable nor does it offend the legislative intent of the statute which is plainly expressed. Consistent with this is the statement in Sumnicht v. Sackman, 906 S.W.2d 725, 728 (Mo.App. W.D. 1995), a modification of custody case, which held that "unless we see something in the record that is clearly an item of substantial concern, we will confine ourselves to those concerns which have been pleaded, and which the trial court believed to be sufficiently significant to warrant mention in the court's order." Father also complains that the trial court did not make findings concerning the best interests of the child required by various other statutes. In that regard, he refers to the trial court's general finding that the modification it ordered was in J.A.S.'s best interests. In doing so, it stated that it was in the best interests of the child for primary physical custody to be awarded to Mother, and for Mother and Father to be awarded joint legal custody. Prefacing that finding, the trial court stated that it considered all relevant factors, including those specifically listed in Section 452.375.2(1)-(8). It did not, however, identify which of those factors, or any others, it found relevant to deciding this case, nor did it enter any factual findings with reference to any of them.

Section 452.375.2 requires that the court "shall determine custody in accordance with the best interests of the child," and "shall consider all relevant factors including": (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 of abuse of any individuals involved. If the court finds that a pattern of domestic violence has occurred, and, if the court also 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 to the child's custodian. Section 452.375.6 states, in pertinent part: [i]f the parties have not agreed to a custodial arrangement, or the court determines such arrangement is not in the best interest of the child, the court shall include a written finding in the judgment or order based on the public policy in subsection 4 of this section and each of the factors listed in subdivisions (1) to (8) of subsection 2 of this section detailing the specific relevant factors that made a particular arrangement in the best interest of the child. Furthermore, Section 452.375.4 provides 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 otherwise. The law in Missouri concerning what specific findings must be made with regard to the "best interest" determination, however, is in a state of disarray. Numerous cases have held that a trial court's judgment in child custody proceedings is given greater deference than in any other type of case. See, e.g. In re D.M.S. at 171; McIntire at 568. Likewise, courts have held that the trial court is generally deemed to have properly considered the statutory factors in making its decision. See Beckwith at 664.

Along the same vein, the western district of this court has also recently affirmed a modification of "custody time" where the trial court made no finding whatsoever about whether the change was in the child's best interests. Bell v. Bell, 125 S.W.3d 899, 903 (Mo.App. W.D. 2004). In doing so, it pointed out that the appellant cited no authority requiring the trial court to state how a modification of custody time serves the child's best interests when no request for specific findings was made. Id. It also held that it would not overturn the trial court's decision "unless [appellant] proves the modification was not in [the child's] best interests"; that the trial court is "presumed" to have acted in the best interests of the child; and that the appellate court defers to the trial court's assessment of what serves the child's best interests unless firmly convinced that the child's welfare requires some other disposition. Id. With regard to Bell, however, we note Section 452.410 specifically provides that a court "shall not" modify a prior custody decree unless it "finds," among other things that the modification is necessary to serve the best interests of the child. Additionally, the movant has the burden of proving that modification is necessary to serve the best interests of the child. A.J.K. by R.K. v. J.L., 980 S.W.2d 81, 84 (Mo.App. E.D. 1998); In re Marriage of Lowe, 860 S.W.2d 813, 816 (Mo.App. S.D. 1993). Bell is not the only case in which courts have relied on the provisions of Rule 73.01(c),(FN8) which provides that all fact issues upon which no specific findings are made shall be deemed to have been found in accordance with the result reached. See Benton v. Benton, 620 S.W.2d 433, 435 (Mo.App. S.D. 1981). Where findings are statutorily required, however, the necessity of requesting findings under Rule 73.01 is obviated. Gant v. Gant, 892 S.W.2d 342, 346 (Mo.App. W.D. 1995). Since Section 452.410.1 requires a finding of a change of circumstances and that the change is in the child's best interests, there is no need to specifically request findings concerning those matters. See also the requirements of Section 452.375.6 discussed more specifically later in this opinion. There is some disagreement in the appellate opinions of this state concerning whether a trial court must even consider the non-exclusive factors listed in Section 452.375.2 in determining whether a modification is in the best interests of a child. In Maher v. Maher, 951 S.W.2d 669 (Mo.App. E.D. 1997), the court held that Sections 452.375.2 and 452.375.4 set forth non-exclusive factors to be considered in making an "initial determination of custody," but that modification of an existing decree is governed by Section 452.410.1, which sets forth "the more general standard that the modification serve the best interest of the child." Id. at 673. To the same effect are Leazer v. Leazer, 119 S.W.3d 597 (Mo.App. E.D. 2003), and Bohac v. Akbani, 29 S.W.3d 407 (Mo.App. E.D. 2000). In Bohac, the court held there are no fixed standards by which to determine the best interests of the child in a modification proceeding. Id. at 412. In Leazer, however, the court considered the Section 452.375.2 factors for "guidance" in determining the child's best interests. Id. at 600.(FN9) In Bell, the western district of this court held that the factors found in Section 452.375.2 "may" be considered in determining

whether modification should be ordered. Id. at 903. Earlier, the western district of this court had held that while Section 452.410 is silent on the issue of how the trial court is to determine the best interests of the child in a modification proceeding, Section 452.375.2 contains the factors the court is required to consider in determining "custody" in accordance with the best interests of the child, without regard to the type of proceeding in which the issue arises. See Reeves-Weible v. Reeves, 995 S.W.2d 50, 62-63 (Mo.App. W.D. 1999). The Reeves court held that a careful reading of Section 452.375.2, giving the language used its plain and ordinary meaning, requires the conclusion that in any proceeding involving a determination of custody, including modification proceedings, the trial court must consider the factors listed in Section 452.375.2. Id. at 63. See also Heslop v. Sanderson, 123 S.W.3d. 214, 222 (Mo.App. W.D. 2003); In re D.M.S. at 174-75; Wood v. Wood, 94 S.W.3d 397, 406 (Mo.App. W.D. 2003); Beckwith at 664. Therefore, it is implicit that Section 452.375.2 applies to all proceedings involving custody, including modification actions, and therefore must be considered in determining the best interests of the child. The problem herein is that the trial court in this matter failed to specify which factors from Section 452.375.2 it found relevant to this case and further failed to translate those factors into its "best interest" determination under Section 452.410. Once again, the courts of this state are not in agreement concerning whether specific findings regarding the facts or circumstances relied on by a trial court in making the best interests determination in a modification proceeding are required. In Abernathy v. Meier, 45 S.W.3d 917, 924 (Mo.App. E.D. 2001), the court held that a trial court made the necessary findings required by Section 452.375 when it's judgment merely stated, as does the judgment here, that it had considered all relevant factors set forth in that statute and found that modification of the physical custody plan would be in the child's best interests. See also Defreece v. Defreece, 69 S.W.3d 109, 114 (Mo.App. W.D. 2002), and Edmison v. Clarke, 988 S.W.2d 604, 608 (Mo.App. W.D. 1999). In Defreece, which was a dissolution matter, the appellate court stated that the trial court clearly based its decision on the factors in Section 452.375.2, and that "the trial court is presumed to have properly considered the statutory factors in making its determination." Id. at 114. In Edmison, the court held that in contrast to a modification proceeding, the initial determination of custody is based on the eight factors set out in Section 452.375.2, and that the trial court is not required to set out specifically which of these factors it relied on in awarding custody. Id. at 608. The Edmison court further found that where the trial court is silent as to which factors it considered, it is presumed that it considered all of the evidence and based its award on consideration of the relevant statutory factors unless the record indicates otherwise. Id. at 608-09. In In re D.M.S., we affirmed a custody modification, stating that the trial court is presumed to have reviewed all evidence and to have based its decision on the child's best interests; is deemed to have properly considered the statutory

factors in making its decision; and, is not required to expressly state which of the factors it relied on in its award of custody. Id. at 175. There, however, the trial court made a number of factual findings that could be directly correlated with the non-exclusive factors in Section 452.375.2. Id. Beckwith resulted in a reversal and remand of a modification order in which the appellate court said that the trial court must consider all relevant factors, including the statutory factors in Section 452.375.2, and that it is deemed to have properly considered the statutory factors in making its decision. Id. at 664. The Beckwith court found, however, that there was no evidence on each of the statutory factors and, with so little evidence in the record, it could not be assumed that the trial court considered all of the factors required by Section 452.375.2. Id. Other courts, however, have held that a trial court is required to make findings detailing the specific relevant factors that make a particular custody arrangement in the best interests of the child. In Gross v. Helm, 98 S.W.3d 85 (Mo.App. E.D. 2003), for example, the trial court's judgment stated that there had been "a change of circumstances that [was] continuous and substantial in relation to custody of the minor children and require[d] a modification . . ., and that it would be in the best interest of the minor children that [Father] be granted primary physical custody. . . ." Id. at 88. In reversing and remanding the case, the eastern district noted, as argued by Father in this case, that in cases where the parties have not agreed to a custodial arrangement, Section 452.375.6 requires that the trial court "shall" make written findings in its judgment or order based on the public policy in Section 452.375.4 and on "each of the factors" listed in Section 452.375.2, "detailing the specific relevant factors that made the court's chosen arrangement in the best interest of the child." Id. at 87. Because the trial court failed to make the findings required by Section 452.375.6, the Gross court r eversed and remanded the case for entry of findings required by that statute. Id. at 88. The same result was reached in Love, another modification action. We earlier noted that Section 452.375.2 applies in modification actions. To further support that conclusion, it is clear that the requirements of Section 452.375.6, which mandates findings under Sections 452.375.2 and 452.375.4, apply whether the action involves an initial custody determination or a modification of custody. See Wood at 405-06. In fact, the court in Gross relied on Brandow v. Brandow, 18 S.W.3d 584 (Mo.App. W.D. 2000), a case involving a dissolution of marriage rather than a modification of custody. Other dissolution cases have considered the sufficiency of findings required by Section 452.375.6. In Davidson v. Fisher, 96 S.W.3d 160 (Mo.App. W.D. 2003), the court considered whether, in complying with Section 452.375.6, the trial court was required to make findings of fact relating to all eight factors delineated in Section 452.375.2. Id. at 164. It held that Section 452.375.6 does not require a trial court to specifically discuss in its findings each of the eight factors delineated in Section 452.375.2 in determining the best

interests of children in custody matters, but rather is required to "detail 'the specific relevant factors that made a particular arrangement in the best interest of the child.'" Id. In discussing the statutory requirements, the court said their purpose is to assure that all pertinent considerations were described by the trial court so as to allow for more meaningful appellate review. Id.; see also Foeste v. Foeste, 122 S.W.3d 698, 701 (Mo.App. E.D. 2003); Besancenez v. Rogers, 100 S.W.3d 118, 130-32 (Mo.App. E.D. 2003); Morse v. Morse, 80 S.W.3d 898, 903-04 (Mo.App. W.D. 2002); Bauer v. Bauer, 38 S.W.3d 449, 456 (Mo.App. W.D. 2001). This court also recently held that with regard to the findings required by Section 452.375.6, the "trial court is not obligated to discuss any particular factor unless it is relevant, or to give greater weight to one factor than to another." In re Marriage of Cluck, 121 S.W.3d 271, 273 (Mo.App. S.D. 2003). We believe that where, as here, the parties do not agree to a custodial arrangement, or if the court determines that such arrangement is not in the best interests of the child, a requirement of a detailed finding of the specific relevant factors that the court determined made a custody determination to be in a child's best interests is in keeping with the specific mandate of Section 452.375.6, the legislative intent behind Section 452.375.2, and is also consistent with what we believe are the better reasoned cases in this state. Even though this requirement does not necessitate a rote examination or laundry list of all eight factors under Section 452.375.2, it does require a detailed finding as to the factors, including those under Section 452.375.2, that are found to be relevant in a particular case. The trial court should, however, in each case, acknowledge having at least considered all eight factors listed in Section 452.375.2. Of particular concern in this case is evidence of possible abuse of J.A.S. by Mother or her boyfriend. Without reaching conclusions as to the facts, a function not appropriate for this court since the trial court was in a position to observe the demeanor of the witnesses,(FN10) it is worth noting that the juvenile office filed a petition relating to J.A.S. in which it was alleged that on October 22, 2001, he was taken to a hospital emergency room by Father with extensive bruising on his upper thigh and buttocks; the bruises appeared to be recent and caused by the use of a strap or belt; J.A.S. told authorities that Mother had spanked him; Mother told authorities that she had spanked J.A.S. the previous day with a belt, but did not believe she "had struck him that hard"; Mother was arrested; and, J.A.S. was placed in protective custody. That petition was followed three weeks later by Father's motion to modify, in which he alleged that Mother had physically abused J.A.S., and that the child was afraid of Mother. The juvenile officer's petition was subsequently consolidated with Father's motion to modify, but was later dismissed at the request of the juvenile office based on a psychologist's recommendation that J.A.S. be returned to Mother, and recommendations from DFS and the child's guardian ad litem that jurisdiction over the child was no longer necessary.

Nevertheless, at the trial of this motion, Father testified that Mother told him that "the children had pissed her off and she was very extreme [sic] mad." There was also evidence indicating that J.A.S. had been kicked in the ribs by a man Mother was dating and was planning to marry. Father also testified at the hearing that J.A.S. continued to complain that Mother screamed and cussed at him; that Mother, as a form of discipline, required him to hold items in his hands and put his arms out for "x amount of minutes"; and, that when J.A.S. told Mother he preferred to live with Father, her boyfriend went into the child's room and "messed his whole room up, tore his closet out and threw his stuff off the desk and said that was his punishment, to clean that up and to quit saying that." Additionally, there was evidence that six months before the hearing in this case, when Father went to pick up J.A.S. on his birthday, he was met by Mother, who asked, "what the [f---]" was he doing here"; "[h]e's not going with you"; and, "I'd rather go to [f---]'ing jail before he goes with you." Mother testified that she lives with J.A.S. and her other child. She also said that her boyfriend had been a resident in the household for the past three years and eleven months. The evidence was that J.A.S. was taken from Mother's custody for approximately four months after she struck him with the belt, during which time she was in anger management classes and family therapy. Mother testified that she used the belt on J.A.S. because he "didn't have no sense of responsibility" as indicated by his losing a flag he had made in Boy Scouts. In connection with the belt incident, the evidence indicated that Mother made J.A.S. lower his jeans so she could hit him with the belt against his bare skin. J.A.S. also testified outside the presence of Mother and Father. He testified about the incident involving the belt when he was taken to the emergency room, and stated that Mother had used a belt on him before. When asked if he had been "hit" since the belt incident, he said he didn't know, but later said he had been struck two or three times since then. He testified that he wanted to live with Father, saying that Mother is "mean." In explaining what he meant, J.A.S. said that Mother makes him hold a can with his arms straight out for up to ten minutes, and "it really [did] hurt." He also said that Mother sometimes curses him while forcing him to hold his arms straight out, and he said that it did not seem that Mother loved him when she hit him with the belt. This and other evidence presented to the trial court raises questions about the relevancy in this case of, at least, factors numbered (2), (3), (4), (6), and (8) in Section 452.375.2. The trial court commented at the end of the hearing that people of his generation had belts used on them, but "that doesn't mean it's right." The trial court also questioned "the extent of the discipline that [Mother] [was] imposing, in terms of whatever [sic] the holding the cans and whatever that [was]." Finally, the trial court stated that if the types of punishment used by Mother continued he would expect that the matter would be back in court, and he would not be inclined to continue custody in her home if he did not think she "could overcome that," and that he "won't ever hear from you all again." While there are no findings in the judgment concerning

abuse, it is obvious from the trial court's comments that he believed the incidents had occurred and that he was leaving primary custody with Mother on the faith that she could and would overcome those tendencies. Notwithstanding the unambiguous language of Section 452.375.2, the plain wording of Section 452.375.6 requires that when the parties do not agree to a custodial arrangement, whether it be in an initial proceeding or a modification action, the trial court is required to make specific findings detailing the specific relevant factors that made a particular arrangement in the best interests of the child. Merely stating, as the trial court did here, that it had considered the factors contained in Section 452.375.2, without detailing which were relevant to the particular case and how, under the facts of this case, they make a particular custody arrangement in the best interests of the child, is not in compliance with the statutory mandate of Sections 452.375.2 or 452.375.6. For this reason alone, the judgment should be reversed and the case remanded to the trial court for the entry of the necessary findings. Under the circumstances of this case, it is further imperative that the trial court make specific findings pursuant to at least Sections 452.375.2(2), (3), (4), (6), and (8). Although Father does not make the contention here, Section 452.375.13 provides that if the court finds that domestic violence or abuse, as defined in Sections 455.010 and 455.501, has occurred, the court shall make specific findings of fact to show that the custody or visitation arrangement ordered by the court best protects the child who is the victim of domestic violence or abuse from any further harm. Section 455.501(1) defines "abuse" as "any physical injury, . . . or emotional abuse inflicted on a child other than by accidental means by an adult household member. . . . Discipline including spanking, administered in a reasonable manner shall not be construed to be abuse." Additionally, Section 452.375.2(6) requires the trial court to enter written findings if it finds a pattern of domestic violence has occurred and further finds that awarding custody to the abusive parent is in the best interests of the child. Compliance with these sections is mandatory. Foeste at 702. It appears from its comments at trial that the trial court believed that the punishment imposed by Mother was unreasonable, and if that were true, under the facts here, it was abuse. Under that scenario, the trial court was required by Section 452.375.13 to make specific findings of fact to show how the custody order entered best protects J.A.S. from further harm. The trial court was also required by Section 452.375.2(6) to determine whether there was a pattern of domestic violence, and if so, to make written findings of fact and conclusions of law. Father also complains that the trial court did not make findings pursuant to Section 452.400.1, which provides that the court shall grant visitation in a manner that best protects from further harm a child who is the victim of domestic violence, and, if requested by a party, shall make specific findings of fact to show that the visitation arrangements made by the court best protect such a child from any further harm. Father, however, does not demonstrate that such a request

was made of the trial court. Additionally, Father's contention in this point that, in violation of Section 452.400.2, the trial court "reduced" his custody without making a specific finding that visitation would endanger the child is not well taken. First, Father cites no authority, other than the statute itself, in support of this contention, and offers no explanation as to why none is available. Under such circumstances, the contention may be considered abandoned. In re Marriage of Spears, 995 S.W.2d 500, 503 (Mo.App. S.D. 1999). Secondly, Section 452.400.2 prohibits a modification that would "restrict" visitation rights without a finding that the visitation would endanger the child's physical health or impair his emotional development. Father makes no effort to establish that this modification would "restrict" his visitation within the meaning of the statute. Accordingly, this portion of the point is denied. Another of Father's contentions of error relates to the trial court's failure to consider and make findings with reference to the public policy as declared in Section 452.375.4. As indicated above, that statute establishes that the public policy of this state is that "frequent, continuing, and meaningful contact" with both parents after their separation or dissolution of marriage is in the best interests of the children, except where the court specifically finds that such contact is not in the children's best interests; and to encourage parents to participate in decisions affecting the health, education and welfare of their children, and to resolve disputes involving their children amicably. See Section 452.375.4 Section 452.375.4 also provides that "[i]n order to effectuate these policies, the court shall determine the custody arrangement which will best assure both parents participate in such decisions and have frequent, continuing and meaningful contact with their children so long as it is in the best interests of the child." Like Section 452.375.2, Section 452.375.4 is implicated by the application of Section 452.375.6, which requires that "the court shall include a written finding in the judgment or order based on the public policy in subsection 4 of this section." See Gross at 88; Wood at 406. The judgment in this case also failed to comply with this requirement. Due to the aforementioned failures by the trial court, Father's first point is granted as indicated herein, and the issue of custody is reversed and remanded for specific findings by the trial court consistent with this opinion. In doing so, the trial court may take additional evidence if it deems it appropriate. In his second point, Father argues that the trial court's decision to modify the child support amount was not supported by credible evidence, was excessive, was against the weight of the evidence, and was a misapplication of the law. Father contends that the trial court failed to adhere to the requirements of Sections 452.340 and 452.370, because it failed to make a finding that there had been a change in circumstance that supported modifying his child support obligation. He further argues that the trial court erred in rejecting the parties' Form 14s and not submitting its own.

In determining an award of child support in any proceeding, Section 452.340.8 and Rule 88.01 require the trial court to follow the two-step procedure set forth in Woolridge at 379. Ricklefs v. Ricklefs, 39 S.W.3d 865, 869-70 (Mo.App. W.D. 2001). In the first step, the trial court must determine and find the presumed correct child support amount (PCSA) in accordance with Form 14. Id. at 870. This required determination and finding can be done by the trial court's either accepting for the record the Form 14 calculation of one of the parties, or in the event that the court "rejects" the parties' Form 14 calculations as being incorrect, by doing its own calculation. Woolridge at 381-82. The trial court can do its own Form 14 calculation by either completing a Form 14 worksheet and making it a part of the record or by articulating on the record how it calculated its Form 14 amount. Id. at 382. The required findings may be accomplished by separate written findings, findings in the judgment entry, or by oral findings on the record. Id. The lack of specific findings will not automatically trigger a reversal on appeal, provided the record clearly indicates how the trial court arrived at its Form 14 amount. Id. In the second step, after considering all relevant factors, including those found in Sections 452.340.1 and 452.370.1, the trial court must determine whether to rebut the PCSA as being unjust or inappropriate. Ricklefs at 870. There is no dispute here that the trial court rejected both Father's and Mother's Form 14. Within the modification judgment, the judge wrote: [Father] and [Mother] have jointly submitted Form 14's, which comply with Missouri Supreme Rule 88. The [c]ourt deviates from [Father's] Exhibit 2 and [Mother's] Exhibit B regarding child support. The [c]ourt now finds the correct amount of child support to be Two Hundred Sixty-Two Dollars and Forty-Four Cents ($262.44).

The trial court further clarified how it arrived at what it determined was the correct child support amount during the hearing. The trial court first indicated that it did not intend to change the child's primary custody (with Mother), even though J.A.S. said that he would prefer to live with Father. According to the trial court, "insofar as I'm able to glean from the proceedings here, I think the likelihood that [J.A.S.] will maintain a working relationship with both [Father and Mother] is enhanced if he lives with his mother." The discussion then turns to the Form 14s submitted by the parties. As for Father's Form 14 calculation, the court noted that it anticipated Father would have primary custody. As for Mother's Form 14, the trial court noted that it imputed her income at minimum wage, even though there was evidence of her hourly wages in the record. The trial court asked Mother's counsel to resubmit a Form 14 calculating the child support amount by imputing income to Mother of $7.69 per hour (the amount to which she testified earning per hour) times the number of hours she worked, which, according to her testimony, was twenty-four hours per week. When the $7.69 per-hour figure is used in the calculation instead of minimum

wage, the calculated monthly child support required to be paid by Father actually decreases from the $264.09 noted on Mother's Form 14 to the $262.44 ordered in the trial court's judgment. Regarding Father's argument that the trial court failed to find a substantial change in circumstance to warrant modification of child support, Section 452.370.1 provides: [i]f the application of the child support guidelines and criteria set forth in section 452.340 and applicable supreme court rules to the financial circumstances of the parties would result in a change of child support from the existing amount by twenty percent or more, a prima facie showing has been made of a change of circumstances so substantial and continuing as to make the present terms unreasonable, if the existing amount was based upon the presumed amount pursuant to the child support guidelines. Under the previous order of modification, Father was required to pay $155 per month in child support. In the Form 14s submitted here, both Father and Mother imputed income to Father at $2,000 per month, but the Form 14s differed in terms of who would have primary custody and who would pay child support. The presumed correct child support amount that the trial court calculated in step one above represented a sixty-nine percent increase in child support, meeting the twenty percent requirement for a prime facie showing "of a change of circumstances so substantial and continuing as to make the present terms unreasonable." Section 452.370.1. Once it is determined that there has been a substantial and continuing change in circumstances, the trial court is required to order the payment of a child support amount calculated in accordance with the guidelines. Kieninger v. Kieninger, 836 S.W.2d 515, 517 (Mo.App. E.D. 1992). That is exactly what the trial court did in this situation. We further note that, since the trial court saw no need to rebut what it calculated as the PCSA, it did not proceed to step two of the two-step process discussed above. See Woolridge at 379. We find that, given the record before us and the specific claims of trial court error argued by Father under this point, there is no basis for reversal of the trial court's determination of child support. In his third point, Father argues that the trial court erred in failing to make an express ruling on his motion for contempt. As earlier noted, Father's motion was purportedly taken up by the trial court, but no express ruling was reflected in the record. At the request of this court, the trial court ruled on the motion and denied it. As is the general standard in reviewing a trial court's decision, we affirm it 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. In re Marriage of Hughes, 773 S.W.2d 897, 898 (Mo.App. S.D. 1989). A ruling on a motion for contempt is left "to the sound discretion of the trial court, and on review its judgment will not be disturbed in the absence of a clear abuse of discretion." In re Marriage of Mayfield, 780 S.W.2d 139, 144 (Mo.App. S.D. 1989). The trial court determines the credibility of witnesses and may

accept or reject all, part or none of the testimony it hears. In re D.M.S. at 171. Whether Mother had justification for the actions complained of in Father's motion for contempt, or should be held in contempt, was within the discretion of the trial court. Under our limited review, we find no abuse of that discretion. Point three is denied. Accordingly, we reverse the judgment as it relates to the custody of J.A.S. and remand the case to the trial court for the specific findings required by Sections 452.375.2, 452.375.4 and 452.375.6. The trial court should further determine if Section 452.375.13 is applicable to this case, and if so, make the findings required by that section and Section 452.375.2(6). The judgment is affirmed in all other respects.

Footnotes: FN1. At the request of this court, the trial court has since ruled upon and denied the motion for contempt. FN2. As noted in LaRocca v. LaRocca, 135 S.W.3d 522, 524 (Mo.App. E.D. 2004), Section 452.375.1(1) defines "custody" as "joint legal custody, sole legal custody, joint physical custody or sole physical custody or any combination thereof," but does not employ the term "primary physical custody." FN3. The record on appeal in this case did not initially include any ruling on the application to hold Mother in contempt. Pursuant to an order of this court, the trial court furnished a copy of a ruling denying the application. Note that even if contempt and modification matters are consolidated for trial, they are separate for purposes of appeal. In re Marriage of Crow and Gilmore, 103 S.W.3d 778, 783 (Mo. banc 2003). FN4. All references to statutes are to RSMo (2000) unless otherwise indicated. FN5. Here, jurisdiction under Section 452.450 is not in dispute. FN6. In Timmerman, the western district of this court held that the trial court's initial determination that the parties were awarded joint physical custody resulted in there being a modification of custody when the trial court entered a judgment modifying the parties' parenting time. The result was that the standard for modification contained in Section 452.410.1 applied. We, like the western district, are distressed by the lack of a "bright line" test in determining whether custody is involved in a modification, and, therefore, whether the standard for modification of custody or that of visitation applies. In Timmerman, the western district takes the approach that for modification purposes, the designation given the custodial arrangement by the judgment making the initial award is determinative of whether a later modification is one of custody or visitation. We disagree with that approach. While we are as anxious as the western district to have a "bright line" test in such cases, we believe that we are constrained by the legislatively mandated definition of "joint physical custody" in Section 452.375.1(3) to apply that definition to factual scenarios before us. Given that statutory definition, we do not believe that the legislature intended to cloak the trial court with sole discretion in determinin g whether an arrangement meets the definition of "joint physical custody." Certainly, we find nothing indicating that the legislature intended that such an initial determination would be impenetrable even on appeal. Accordingly, we respectfully disagree with the Timmerman analysis. FN7. Courts have held in some cases that the change of circumstances required for a modification of child custody must be "substantial and continuing." See McIntire at 568. The "continuing" portion of that requirement, however, is not found in Section 452.410, but, rather, appears in Section 452.370 relating to modification of support. Accordingly, the requirement of a "continuing" change of circumstances applies to modification of support, but not custody. In re C.N.H., 998 S.W. 2d 553, 556-57 (Mo.App. S.D. 1999); McIntire at 568-69. FN8. All references to rules are to Missouri Rules of Civil Procedure (2003) unless otherwise indicated.

FN9. Although not directly at issue in this appeal, we disagree with the holdings in In re Marriage of Bertz, 856 S.W.2d 932, 935 (Mo.App. S.D. 1993), and Benton v. Benton, 620 S.W.2d 433, 435-36 (Mo.App. S.D. 1981). In Bertz, this court held that a modification decree was not defective because it failed to make a specific finding that the modification was in the best interests of the child. Id. at 935. In Benton, the modification decree failed to contain a specific finding of either a change of circumstances or that the modification was in the child's best interests, yet this court held that it was not rendered defective merely because of that failure. Id. at 435. In Benton, this court noted that neither side requested findings of fact and conclusions of law, and that the decree incorporated a memorandum opinion containing extensive factual recitals that supported the court's "implied findings." Id. at 435-36. We feel that both opinions are contrary to the explicit requirement of Section 452.410.1 that the "court shall not modify a prior custody decree unless . . . it finds" that there has been a change of circumstances and that a modification is in the best interests of the child. FN10. See Elliott v. Elliott, 920 S.W.2d 570, 574 (Mo.App. W.D. 1996).

Separate Opinion: Opinion Concurring in Part and Dissenting in Part by Judge Prewitt: I concur in the result and analyses of Points II and III, but respectfully dissent in the result and analysis of Point I. As can be seen in the various views and opinions discussed, the law is in disarray. Any matter involving children needs to be brought to an end as soon as possible for the best interest of the children and their relationship with their parents. Whatever technical failures may have existed here in the trial court's finding, I believe the right result was reached and should be affirmed. Stabilization and finality would be the best for all, and were I writing for the majority on Point I, my analysis would be as outlined below. Before continuing, I wish to note that I also respectfully disagree with the approach taken by the western district in Timmerman v. Timmerman, No. 62002 (Mo.App. filed July 27, 2004), in its analysis of which standard to apply in modification of custody cases. Further, although the analyses found in Baker v. Welborn, 77 S.W.3d 711 (Mo.App. 2002) and In re D.M.S., 96 S.W.3d 167 (Mo.App. 2003) may be "imperfect," in my determination they lead to the finality and stabilization mentioned above and, in this case, the best interest of the child whose custody is at issue. In his first point, Father urges that we reverse the trial court's judgment with regard to child custody because the judgment allegedly modified the previous award of joint legal and joint physical custody to an award of joint legal custody with primary physical custody to Mother. Father argues that the trial court failed to take into consideration the relevant statutory factors and public policy, and that the child custody award was not supported by substantial evidence. He points to the relevance of several statutory provisions, including sections 452.375.2, 452.375.4, 452.375.6, 452.400.2, and 452.410, RSMo 2000. Those provisions, and Father's contentions regarding them, will be more fully discussed in the analysis. First, the general standard of review. We will affirm the judgment in a custody modification case if it is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law. In re

D.M.S., 96 S.W.3d 167, 171 (Mo.App. 2003). When there is conflicting evidence, it is within the trial court's discretion to determine the credibility of the witnesses, and accept or reject all, part, or none of the testimony it hears. Id. In assessing the sufficiency of the evidence, we examine the evidence and its inferences in the light most favorable to the judgment. Id. Greater deference is given to a trial court's determination in matters involving child custody than in any other type of case. Id. We exercise extreme caution in considering whether a judgment should be set aside on the ground that it is against the weight of the evidence, and will do so only upon a firm belief that the judgment was wrong. Id. Section 452.410 outlines the criteria under which a trial court may modify child custody. Beckwith v. Giles, 32 S.W.3d 659, 664 (Mo.App. 2000). Under that provision, "the court shall not modify a prior custody decree unless it has the jurisdiction under the provision 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." Section 452.410.1, RSMo 2000. Jurisdiction under section 452.450 is not questioned. We must first determine, however, whether what occurred here was in fact a modification of a child custody decree or a change in visitation. D.M.S., 96 S.W.3d at 173. Only if it was a modification of child custody, is the trial court required to find that there is a substantial change in circumstances that warrants the modification and that the modification is necessary to serve the best interests of the child. Beckwith, 32 S.W.3d at 664. If the judgment only reflected a change in visitation, that is addressed under section 452.400.2, RSMo 2000, under which "[t]he court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child . . . ." Father argues that the judgment did reflect a modification in custody, since the judgment no longer used the terminology of "joint physical custody," although it retained the joint legal custody designation, and all judgments listed Mother as primary physical custodian and granted Father specific and liberal visitation. Father contends this new arrangement in the judgment effectively awarded Mother sole custody of J.A.S. Appellate courts have found there is little or no practical distinction between an award that is denominated as a joint physical custody award and one that awards primary physical custody to one party and liberal visitation to the other. Baker v. Welborn, 77 S.W.3d 711, 716 (Mo.App. 2002). An award of joint physical custody does not require an equal amount of time with each parent. Id. Under section 452.375, joint physical custody occurs when an order awards "each of the parents significant, but not necessarily equal, periods of time during which a child resides with or is under the care and supervision of each of the parents." section 452.375.1(3), RSMo 2000. In comparing the judgment with the previous modification, as well as the initial determination, there is no practical

distinction in the arrangement ordered by the trial court with respect to custody. In all, Father and Mother were awarded joint legal custody, and Mother was listed as the primary physical custodian with Father granted specific and liberal visitation. Under Baker and section 452.375.1(3), Father and Mother were effectively awarded joint physical custody in the most recent modification judgment, as well as the previous modification and the initial determination Based on the above reasoning, there was not a modification of custody here, but rather, a change in visitation; thus, section 452.400.2, RSMo 2000, applies. Section 452.375.2, RSMo 2000, lists the statutory factors that a trial court must consider to determine whether the modification, or change in visitation, would serve the best interests of the child. Father argues that the trial court failed to consider these statutory factors. The trial court is presumed to have known the law and followed it in determining that the changes were in the child's best interests. See Dorman v. Dorman, 91 S.W.3d 167, 174 (Mo.App. 2002). However, we need not apply that concept here as, within the judgment, the trial court clearly stated that it had determined custody in the best interests of J.A.S. and had arrived at its determination following consideration of the best interests factors under section 452.375.2, RSMo 2000. See Abernathy v. Meier, 45 S.W.3d 917, 924 (Mo.App. 2001). The court also listed each of the factors it considered. Thus, the record indicates that the trial court considered the appropriate statutory factors. Hollins v. Hollins, 13 S.W.3d 669, 673 (Mo.App. 2000). Father also contends that the trial court failed to appropriately consider or make findings as required by section 452.375.4, RSMo 2000, and section 452.375.6, RSMo 2000. Section 452.375.4, RSMo 2000, articulates the public policy of the state that it is in the best interests of the child to have "frequent, continuing and meaning contact with both parents" following separation or dissolution of marriage. Section 452.375.6, RSMo 2000 states that where parties have not agreed to a custodial arrangement, or the court determines such arrangement is not in the best interest of the child, the court shall include a written finding in the judgment or order based on the public policy in subsection 4 of this section and each of the factors listed in subdivisions (1) to (8) of subsection 2 of this section detailing the specific relevant factors that made a particular arrangement in the best interest of the child. Under the analysis of the cases such as Dorman, Abernathy, and Hollins, the trial court met its burdens with the judgment here and addressed all necessary statutory factors and requisite findings. We must consider one last requirement of the trial court, which is noted in section 452.400.2, RSMo 2000, where it states that "the court shall not restrict a parent's visitation rights unless it finds that the visitation would endanger the child's physical health or impair his emotional development." ; Father contends that the trial court did not make the necessary finding.

A modification of visitation does not always rise to the level of a restriction or limitation under section 452.400.2, RSMo 2000. Prewitt v. Hunter, 105 S.W.3d 874, 876 (Mo.App. 2003). Section 452.400.2, RSMo 2000, applies when a modification restricts or limits one party's visitation rights compared to the visitation rights under a previous agreement. See Barancik v. Meade, 106 S.W.3d 582, 590 (Mo.App. 2003). However, the trial court must be given leeway to modify visitation in the best interests of the child without having to make findings under section 452.400.2, RSMo 2000, every time. Id. In particular, it has been determined that a restriction or limitation invoking section 452.400.2, RSMo 2000, is one that is something more than a modest shortening of visitation to accommodate the child's best interests in performing well in school. Id. On one hand, Mother has a valid argument that Father's visitation was not changed, that in terms of the total time required, it was the same, very similar, or perhaps increased slightly. On the other hand, even if we assume that Father's visitation was lessened by the failure of the trial court to include the provision that had appeared in every other judgment, that Father shall have the option to care for J.A.S. during Mother's working hours, we would conclude that the trial court met the requirements of section 452.400.2, RSMo 2000. The trial court indicated, on the record, it did not wish to include Wednesdays in Father's visitation, which related to the working hours of Mother, because of the child's school. Ms. Judith Kellenberger, a licensed psychologist, testified that she would recommend dropping the Wednesday visitation because J.A.S. was not completing his homework and his grades were suffering. The trial court did remind the parties, "But if those things change then the visitation should become more fluid and I would remind you all, it's not necessary to come to court to agree upon a change in visitation, one that makes sense." Therefore, I would deny Point I and affirm the trial court's judgment of modification in total.

Concurring Opinion by Judge Parrish: I concur. I write separately because of my participation as the authoring judge in Baker v. Welborn, 77 S.W.3d 711 (Mo.App. 2002), and by concurring In re Marriage of Bertz, 856 S.W.2d 932 (Mo.App. 1993), two cases that followed different procedures than what is now adopted by the principal opinion in this case. I believe the procedure established by the principal opinion is well-reasoned and necessary; that it is appropriate for it to supplant the differing analyses and procedures followed in earlier cases. The principal opinion's identification and analyses of varying rationales followed by the respective districts of this court (including inconsistencies within each district) convince me that application of this state's law with respect to modification of child custody is in utter disarray; that a consistent means for reaching decisions in cases in which

modification of child custody is sought and for reviewing modification judgments is overdue. The procedure adopted by this case follows the mandates imposed by the legislature. It enables trial courts to clearly identify and address issues that require resolution in cases seeking to modify child custody. It permits meaningful preparation for litigation by parties to child custody disputes and meaningful appellate review. In my opinion this is required in order to serve the interests of litigants, children who are the subject of child custody proceedings, trial courts that make custody determinations, and appellate courts that review those determinations.

Opinion Concurring in Part and Dissenting in Part by Judge Shrum: I agree with the principal opinion that the child custody part of the judgment must be reversed. I would also reverse the child support part of the judgment. However, my reasons for reversal and remand are not those advanced by the principal opinion. Evidence exists in this record suggesting that domestic violence or abuse was inflicted on this child by Mother, yet the trial court did not make specific findings of fact to show that the custody arrangement ordered by the court best protects the child. Such findings are mandated by section 452.375.13 and the trial court's failure to make those findings was reversible error. Mund v. Mund, 7 S.W.3d 401, 403-04[3] (Mo.banc 1999); Ludwig v. Ludwig, 126 S.W.3d 466, 475- 76[13] (Mo.App. 2004); Foeste v. Foeste, 122 S.W.3d 698, 701-02[3] (Mo.App. 2003). See Cooley v. Cooley, 99 S.W.3d 518, 518-20 (Mo.App. 2003) (holding if there is evidence of domestic violence in the record, albeit a one-time occurrence, the section 452.375.13 findings are mandated). I would reverse the child custody part of the judgment due to the absence of those findings. I would direct the trial court to allow additional evidence on all custody issues, should either party proffer additional relevant evidence. Because a different custody arrangement might result following remand, I would also reverse the child support part of the judgment. In urging reversal for non-compliance with section 452.375.13, I understand that Father has never raised that as a reason for reversal, even as a claim of plain error. Even so, this court may, in its discretion, consider "[p]lain errors affecting substantial rights . . . though not raised or preserved "when we find that "manifest injustice or miscarriage of justice has resulted therefrom." Rule 84.13(c) (emphasis supplied). In my view, the facts revealed by this record warrant the exercise of our discretion under this rule, although such relief was not requested. Unusual though it may be, historically, relief per the plain error rule has been afforded civil litigants by appellate courts when required to protect minor children. See In re Duren, 195 S.W.2d 745 (Mo.App. 1946) (holding appellate court could reverse judgment decreeing adoption because guardian had not consented to the adoption, notwithstanding guardian's

failure to brief that issue); In re Duren, 200 S.W.2d 343, 345 (Mo.banc 1947) (on transfer, Supreme Court of Missouri held it would consider issue even though not presented to trial court or court of appeals; it did so by citing the then recently adopted "plain error" rule (Rule 3.27)); Fort v. Chester, 731 S.W.2d 520, 522 (Mo.App. 1987) (stating, "[w]hen dealing with the most sensitive issue that can be raised concerning a child--that of paternity--we find it necessary to raise sua sponte the question of proper representation and the presence of the necessary parties") (emphasis supplied); Morgan v. Morgan, 289 S.W.2d 151, 153 (Mo.App. 1956) (J. Stone, for this court, held since infants are wards of the court and their rights are to be jealously guarded, the court would reverse "for the plain error" in proceeding to final judgment against a minor defendant not represented by a guardian). That this court continues to analyze and decide child custody issues under the plain error standard of Rule 84.13(c) is illustrated by cases such as Hunt v. Hunt, 65 S.W.3d 572, 577[4] (Mo.App. 2002); Stewart v. Stewart, 988 S.W.2d 622, 625 (Mo.App. 1999); and Al-Yusuf v. Al-Yusuf, 969 S.W.2d 778, 784-85 (Mo.App. 1998) (holding that when reviewing a decree that expressly awards joint custody but does so without a specific written plan setting forth the terms of such custody, appellate courts will, as a matter of plain error, remand for the adoption of such a plan). I write separately because I do not agree with the principal opinion that section 452.410.1 was implicated when the trial judge left in place a joint custody decree, but changed the terms and nature of the parenting plan that was first approved under the joint custody decree. Stated otherwise, I do not agree that Father had to prove a "change of circumstances" per section 452.410.1 as a prelude to changing the parenting plan under the joint custody decree, when as here, the court remained persuaded that joint custody continued to be in the child's best interest. In Baker v. Welborn, 77 S.W.3d 711 (Mo.App. 2002), decided just two years ago, this court moved toward the view I hold. In Baker, we ruled that proof of a change of circumstances per section 452.410.1 was not necessary when a decree provided for joint physical custody and the changes made in the previously approved parenting plan were not "drastic" changes; that in such instances, "[t]he standard applied is the best interest of the [child] with no precursor finding of change of circumstances." Id. at 718-19. The result in Baker was reached by casting a "non-drastic" change in a previously approved parenting plan under a joint physical custody decree as a "change" in visitation schedule, thus implicating section 452.400.2 (which does not require proof of "change of circumstances").(FN1) As I understand it, Judge Prewitt uses the Baker reasoning, at least in part, to conclude that reversal is not mandated here. On the other hand, the principal opinion appears to retreat from Baker. I am not persuaded that either of those views is correct. First, I do not agree with the Baker approach of judicially creating a "non-drastic" change of custody classification that necessarily has to be decided on a case-by-case basis. If a

joint physical custody arrangement exists because both parents have "continuing and meaningful contact" with their child, how can the arrangement be "joint physical custody" and "visitation" at the same time? Baker never answers that question. In my view, calling an alteration of a joint custody decree a "change of visitation rights" does nothing more than add to the disarray in the law.(FN2) I also note that the holding of the principal opinion (that any change in a court approved parenting plan under a joint custody decree requires a change of circumstances showing per section 452.410.1) conflicts with Bell v. Bell, 125 S.W.3d 899 (Mo.App. 2004). There, the western district of this court relied on section 452.375.9 to hold that when relief given by the trial court "concerned the terms and nature of the parenting plan under the joint legal custody decree," the moving party did not have to prove a change in circumstance occurred; the only proof required was that a change in the parenting plan was in the child's best interests.(FN3) Id. at 905[6]. Although the trial court in Bell changed the terms of the previously approved parenting plan to accommodate the child's best interests, the trial court left intact the "legal custody itself." Id. at 905. Consequently, no modification of custody occurred. I find the Bell reasoning sound and in accord with the legislature's clearly stated public policy preference for parents to have joint legal and physical custody "so long as it is in the best interests of the child." ' 452.375.4. The fact that Bell dealt with changes in the joint legal custody part of a previously approved parenting plan, whereas the changes here were in the joint physical custody part of a previously approved parenting plan under a joint custody decree, is of no consequence. Section 452.375.9 (the statutory basis for the Bell decision) refers to section 452.310 in its entirety. Because section 452.310 governs both the "physical custody" prong of a mandated parenting plan (' 452.310.7(1)) and the "legal" custody prong thereof ( ' 452.310.7(2)), the Bell analysis is apropos here and, in my view, should be followed by this court. In sum, I would hold that in cases where a joint custody arrangement existed before the last custody determination and a joint custody arrangement remained in effect after the latest proceeding, there has been no modification within the context of current child custody law; consequently, section 452.410.1 is not implicated.(FN4) In such instances, change of circumstances proof and a finding that a change of circumstances occurred are unnecessary. The only finding and proof required in such an instance is that mandated by section 452.375.9. Bell, 125 S.W.3d at 905. I acknowledge that neither statute nor court rule expressly authorizes what I propose, i.e., modification of the terms and nature of a previously approved parenting plan under a joint custody decree without adherence to section 452.410.2. However, section 452.310.3 statutorily recognizes a historic truism, namely, that once a petition for dissolution of marriage is filed, "each child shall immediately be subject to the jurisdiction 0of the court in which the proceeding is commenced."

More than that, subjecting a child to judicial authority via dissolution proceedings triggers a court's inherent authority to do that which is necessary to make a correct determination with respect to the child's welfare. This is explained in I. v. B., 305 S.W.2d 713 (Mo.App. 1957), as follows: "[T]he action between father and mother in respect to custody of their minor children is not one born of the statute-- rather the statute is declaratory of the law which already existed in the equity courts. From the earliest times infants were regarded as entitled to the special protection of the king as parens patriae. This protection was exercised by, and has descended through, the chancery courts. Such protective jurisdiction is 'broad, comprehensive and plenary.' And this jurisdiction seizes and obtains once and when the child is brought before the court for any purpose and its welfare becomes involved. The child then becomes, in some measure, a ward of the court. . . . The jurisdiction of the equity court, not being limited to the express provision of a statute, is broad enough to accomplish that which is necessary to the purpose of making a correct determination in respect to the welfare of the child." Id. at 722[14,15] (citations omitted). Any doubt about a court's inherent discretionary power to hear and act on a request to change a previously approved parenting plan under a joint custody decree is laid to rest by Vangundy v. Vangundy, 937 S.W.2d 228 (Mo.App. 1996). There, the mother claimed the trial court exceeded its jurisdiction in modifying the terms of the joint legal custody decree with respect to her decision-making authority. Writing for the western district, Judge Ulrich observed: "Although no express request for modification of the legal custody of the children was presented to the trial court, a request for modification of custody--whether legal or physical--invokes the inherent authority of the court to adjudicate the custody of the children as the court deems will best serve the interests of the children: 'When a child is properly before any court for any purpose and its welfare is involved, it becomes a ward of that court with respect to the issues of that case and that court has inherent jurisdiction to adjudicate custody as it deems will best preserve and protect the child's welfare. This is the public policy of the state.' This is so because the welfare of the child is the primary concern of the court. A child custody proceeding is, therefore, unlike most litigation where the judge is a neutral arbiter. A court has an affirmative duty to determine the best interests of the child and greater responsibility is given to that court than only according the parties a fair trial." Id. at 231[5-7] (citations omitted). Since we held in I. v. B., 305 S.W.2d at 722, that there was a "discretionary power inherent in the court" to order suit money in a custody case, it is no stretch to say there is a discretionary power inherent in the court to alter the terms and nature of the previously approved parenting plan under the joint legal and physical custody decree (Vangundy, 937

S.W.3d at 231) without adherence to section 452.410 (Bell, 125 S.W.3d at 904[6]). This is especially true given the legislature's clearly stated preference for having decrees that provide for joint custody, provided always that it is in the child's best interest. But for the trial court's failure to comply with section 452.375.13, I would have concurred in the result reached by Judge Prewitt in his opinion. I could not have agreed, however, to calling a change in the previously approved parenting plan under the joint physical custody decree a change in visitation, as he did. For reasons already stated, I would reverse and remand the child custody and child support part of this judgment due to non-compliance with section 452.375.13. Footnotes: FN1. Section 452.400.2 allows modification of visitation rights when one party has sole physical custody by showing the change is in the child's best interest; no proof of change of circumstances is required under section 452.400.2. FN2. I agree with the recent western district case of Timmerman v. Timmerman, No. 62002 (Mo.App. W.D., filed July 27, 2004), to the extent that it voices the same criticisms I have of Baker, 77 S.W.3d 711. Substantively, however, I disagree with Timmerman for the reasons given in note 6 of Judge Garrison's principal opinion. FN3. Section 452.375.9 provides: "Any judgment providing for custody shall include a specific written parenting plan setting forth the terms of such parenting plan arrangements specified in subsection 7 of section 452.310. Such plan may be a parenting plan submitted by the parties pursuant to section 452.310 or, in the absence thereof, a plan determined by the court, but 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." (Emphasis supplied.) FN4. In so stating, I do not ignore the assertion by the principal opinion that the word "modify" in the current dissolution of marriage law should be interpreted and defined as it was in Sisco v. Sisco, 339 S.W.2d 283, 288 (Mo.App. 1960), i.e., "something in existence to be changed or altered." First, I am not persuaded that this definition remains apropos. Sisco was decided before the 1973 rewrite of Missouri's divorce law and well before joint physical and joint legal custody arrangements were authorized and given legislative approval and preference. Second, the Sisco pronouncement was obiter dicta. The issue in Sisco was whether a former wife could modify the child support and alimony provisions of a divorce decree more than ten years after the last payment had been made. Modification of the child custody part of the decree simply was not an issue in Sisco.

scholarly and well-researched opinion to support the necessity of a reversal and remand for specific findings as mandated by Sections 452.375.2, 452.375.4 and 452.375.6, RSMo 2000. My difference with the principal opinion is the rejection of the view that the elimination of the award of joint physical custody would, itself, establish that there has been a modification of custody. See Timmerman v. Timmerman, No. 62002 (Mo. App. W.D., filed July 27, 2004). Although the principal opinion sets out the numerous cases which state that there is often little or no practical distinction between an

award characterized as joint physical custody and one characterized as primary physical custody to one parent and visitation to the other, I believe the label from the divorce decree of joint physical custody as opposed to primary physical custody (FN1) makes a difference to the parties as well as to the community as to which parent has the "custody" of the child and, thus, makes the day-to-day decisions for the child. It has been noted that designation as a joint physical custodian can have intrinsic value for a parent who believes a stigma attaches when the other parent is named the primary or sole custodian. See Malawey v. Malawey, 137 S.W.3d 518, 524 (Mo. App. E.D. 2004) (citing Loumiet v. Loumiet, 103 S.W.3d 332, 337-38 (Mo. App. W.D. 2003)). In the context of this case, the court awarded "primary physical custody" of J.A.S. to Mother with Father to have "liberal and specific visitation." It is clear to the parents and to the community that Mother has custody and Father has visitation regardless of whether we find it to be, as a practical matter, "joint physical custody." That award has wide- ranging effects to the parents including educational and medical choices available to the "custodial" parent. I believe the designation of the change from "joint physical custody" to "sole physical custody" is a change of custody which makes Section 452.410.1, RSMo 2000 applicable. Footnote: FN1. We are all in agreement that this is not a proper designation of custody as used in Section 452.371.1, RSMo 2000. This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.