David Lee Couzens, Jr. vs. Devyn Lea Post

DAVID LEE COUZENS, JR., ) ) Respondent, ) ) WD88021 v. ) ) OPINION FILED: ) March 10, 2026 DEVYN LEA POST, ) ) Appellant. ) Appeal from the Circuit Court of Benton County, Missouri The Honorable James O. Kjar, Judge Before Division Two: Gary D. Witt, Presiding Judge, Mark D. Pfeiffer, Judge, and Edward R. Ardini, Jr., Judge Ms. Devyn Lea Post ("Mother") appeals from the judgment of the Circuit Court of Benton County, Missouri ("circuit court"), dismissing her motion to modify the child custody decree entered in her divorce from Mr. David Lee Couzens, Jr. ("Father"). Because a change of residence by either parent from one state to a different state constitutes a sufficient change of circumstances to satisfy step one of a motion to modify custody pursuant to section 452.410, 1 we reverse and vacate the circuit court's ruling to

1 All statutory references are to THE REVISED STATUTES OF MISSOURI (2016), as supplemented through February 21, 2024, unless otherwise indicated.

2 the contrary and remand for the circuit court to conduct a "best interests of the child" analysis in full consideration of Mother's motion to modify child custody. Factual and Procedural History In February 2021, the circuit court entered a judgment dissolving Mother and Father's marriage. The judgment granted Father sole physical custody and granted Mother and Father joint legal custody of the parties' minor child. At the time the judgment was entered, Father lived in Oklahoma. The terms of the parenting plan provided that the minor child should reside with Father and that Mother should exercise alternating weekend visitation. In November 2023, Father moved from Oklahoma to Missouri. In February 2024, Mother filed a motion to modify custody based, in part, on Father's move to Missouri. In addition to her motion, Mother submitted a proposed parenting plan in which the parties would share joint physical and legal custody. The circuit court heard evidence on the motion to modify custody and all related child custodial matters. 2 At the close of Mother's evidence, Father made an oral motion to dismiss Mother's motion to modify custody. The circuit court heard argument from Mother and Father's counsel after which the circuit court orally dismissed Mother's motion, concluding that no sufficient change of circumstances supported Mother's motion to modify custody. 3

2 Father filed a cross-motion to modify child support; however, that motion was withdrawn during trial. 3 During this oral colloquy, the circuit court made gratuitous comments that Mother had failed to present any evidence of substantial and continuing changes in

3 A written judgment followed. In its written judgment, the circuit court plainly and unambiguously stated, in pertinent part: "The Court need not consider the factors set forth in Section 452.375 RSMo regarding the best interest of the child because the Court finds there has not been changes in circumstances to necessitate modification of child custody." Mother timely filed a motion for new trial, arguing the circuit court erred when it dismissed her motion to modify custody on the basis that Mother had failed to meet her burden of demonstrating a change of circumstances. The circuit court denied Mother's motion for new trial, and Mother timely appealed to this Court. Standard of Review A motion to dismiss at the close of a plaintiff's evidence in a court-tried case submits the issues on the merits on which plaintiffs have the burden of persuasion, requiring the trial court to determine credibility of the witnesses

circumstance that negatively impacted the child. "A 'continuing' change is not required," and the change shown "need not be 'substantial' where, as here, the modification ordered is from sole custody to joint custody." See Strobel v. Strobel, 219 S.W.3d 295, 298 (Mo. App. W.D. 2007). Further, "negative" or "adverse" impact is not relevant to whether a change in circumstance has occurred. See A.J.K. ex rel. R.K. v. J.L., 980 S.W.2d 81, 85 (Mo. App. E.D. 1998) ("Mother argues that Father, as movant, also must prove that the 'changed circumstances' has yielded an 'adverse impact' on the child, and that such condition is a condition precedent to an order modifying custody. The statute does not require evidence to support a finding that changes had an adverse impact."). That said, since the circuit court's judgment in the present case is "plain and unambiguous, we do not look outside the four corners of the judgment for its interpretation." Sommers v. Matthews, 690 S.W.3d 227, 230 (Mo. App. W.D. 2024) (quoting Harvey v. Dir. of Revenue, 371 S.W.3d 824, 826 (Mo. App. W.D. 2012)). And, "[ o]ur review is ordinarily limited to the written judgment and does not extend to oral comments made by the trial court, which are not part of the judgment." Noble v. Noble, 456 S.W.3d 120, 128 (Mo. App. W.D. 2015) (quoting Harvey, 371 S.W.3d at 826). Irrespective, both the gratuitous oral statements made from the bench and the written judgment demonstrate a misunderstanding of the section 452.410 change in circumstances requirement relating to a motion to modify child custody.

4 and to weigh the evidence, so that the appeal from the ruling on the motion is from a final determination of the issues in question. Citibank, N.A. v. Wilson, 160 S.W.3d 810, 811 (Mo. App. W.D. 2005) (quoting Morris v. Brown, 941 S.W.2d 835, 839 (Mo. App. W.D. 1997)). "Consequently, an appellate court will affirm the judgment unless it is against the weight of the evidence, it is not supported by substantial evidence, or it erroneously declares or applies the law." Id. (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)); see, e.g., Weeks v. City of St. Louis, 721 S.W.3d 873, 876 (Mo. banc 2025). "Whether the trial court applied the correct legal standard in reviewing a motion to modify a child custody decree is a question of law. We review questions of law de novo." Schiesswohl v. Spain, 696 S.W.3d 907, 911-12 (Mo. App. S.D. 2024). Analysis Mother's sole point on appeal argues the circuit court erred by dismissing her motion to modify because it erroneously declared and misapplied the law regarding the change in circumstances necessary to grant a motion to modify child custody under the circumstances of the present modification proceeding. Section 452.410 provides a two-step process for evaluating a motion to modify child custody: A movant must first show a change has occurred in the circumstances of the children or the custodial parents based upon facts that have arisen since the prior decree or facts that were unknown to the court at the time of the prior decree. If the necessary level of change in circumstances is shown, movant must next show modification is necessary to serve the best interests of the children.

5 Woolery v. Woolery, 679 S.W.3d 17, 23 (Mo. App. W.D. 2023) (citation modified) (quoting Hark v. Hark, 567 S.W.3d 671, 677 (Mo. App. E.D. 2019)). "The change required in the first step differs based on the type of modification sought." Id. (quoting Hark, 567 S.W.3d at 677); see Strobel v. Strobel, 219 S.W.3d 295, 298 (Mo. App. W.D. 2007). "The change necessary to justify a modification of custody does not need to be 'continuing.'" Johnson v. Riley, 573 S.W.3d 119, 124 (Mo. App. W.D. 2019); see also Strobel, 219 S.W.3d at 298 (citing In re McIntire, 33 S.W.3d 565, 569 (Mo. App. W.D. 2000)). The movant must show a substantial change of circumstances "where one party is seeking to . . . deprive one custodial parent of custody altogether." Russell v. Russell, 210 S.W.3d 191, 194 (Mo. banc 2007). Thus, "[w]hen physical custody is modified from joint to sole, a 'substantial change' must be shown." Woolery, 679 S.W.3d at 23 (quoting Hark, 567 S.W.3d at 677). However, "the change in circumstances that must be shown need not be 'substantial' where, as here, the modification ordered is from sole custody to joint custody." Strobel, 219 S.W.3d at 298. 4

Our legislature has explicitly declared that either parent's move to another state, and nothing more, is sufficient to demonstrate a change in circumstances:

4 Here, the parties' judgment of dissolution, entered February 2021, granted Mother and Father joint legal custody of the minor child and granted Father sole physical custody of the minor child. The parties have not modified the judgment since it was entered. In Mother's motion to modify custody, Mother sought to change the custody designation from Father having sole physical custody of the child to the parties sharing joint physical custody of the child. Thus, the change Mother was required to show under section 452.410 was only a change of circumstances that had occurred since the original judgment was entered in 2021.

6 If either parent [5] of a child changes his residence to another state, such change of residence of the parent shall be deemed a change of circumstances under section 452.410, allowing the court to modify a prior visitation or custody decree. § 452.411 (emphasis added). LaFon v. LaFon, 811 S.W.2d 360 (Mo. banc 1991), is controlling. In LaFon, the only change in circumstance to support a divorced parent's motion to modify child custody with her ex-spouse was that the mother of the minor child had moved from Colorado to Missouri. Our Supreme Court, interpreting sections 452.410 and 452.411, concluded that this undisputed fact (that either parent of the minor child had changed residence to another state—Colorado to Missouri) satisfied the statutory dictate of section 452.411 and, thus, constituted a change of circumstances with regard to the circuit court's section 452.410 consideration of a motion to modify custody. Id. at 362; see also Rice v. Shepard, 877 S.W.2d 229, 231 (Mo. App. W.D. 1994) (one parent's move from Iowa to Missouri constituted a change of circumstances for a section 452.410 consideration of a motion to modify custody); Lindell v. Coen, 896 S.W.2d 525, 528 (Mo. App. W.D. 1995) (same). Our ruling today is not to suggest that one parent's relocation from one state to a different state is sufficient to mandate modification of custody; rather, today's ruling only reiterates what our Supreme Court has dictated in LaFon—that step one of the section

5 Section 452.411's declaration that either parent's change of residence is sufficient to establish a change in circumstances necessarily displaces the otherwise general rule that the "required finding of a change in circumstances must relate to the circumstances of the child or the custodial parent, not the noncustodial parent." Reeves- Weible v. Reeves, 995 S.W.2d 50, 56-57 (Mo. App. W.D. 1999).

7 452.410 analysis, change in circumstances—has been satisfied. See Lindell, 896 S.W.2d at 528 (explaining that parental relocation from one state to another state does not "automatically mandate modification," but it does satisfy the section 452.410 requirement for a change of circumstances); Sanders v. Busch, 123 S.W.3d 311, 314 (Mo. App. W.D. 2003) (holding relocation of one parent from one state to another state satisfied the change of circumstances requirement under section 452.410 but remanding to the trial court with instructions to complete a "best interests of the child" determination). Today's ruling requires that we remand this matter to the circuit court so that it can complete step two of its section 452.410 analysis of Mother's motion to modify. We offer no opinion about what the "best interests of the child" determination should be, only that such a determination has not yet been made by the circuit court and that it must be made on remand. 6 As we have previously concluded, although one parent's relocation from one state to another state constitutes a change in circumstances pursuant to section 452.411, the circuit court retains "discretion in ruling on a modification of custody request, even if changed circumstances are shown," where the circuit court concludes that "it was in the best interests of the children that they remain in [the custodial arrangement

6 We also note that the circuit court expressly prohibited Mother from presenting evidence that would have related to the second step of section 452.410—the "best interests of the child" determination—as the circuit court expressly concluded in its judgment that it need not and would not conduct a "best interests" analysis due to Mother's alleged failure to satisfy step one of section 452.410. Given our ruling today, on remand the circuit court must re-open the evidence to permit the presentation of evidence relating to the "best interests of the child" analysis that the circuit court must perform relating to Mother's motion to modify child custody.

8 of the original custody decree]." Hoefer v. Hoefer, 860 S.W.2d 376, 378 (Mo. App. W.D. 1993). The circuit court erroneously declared and applied the law when it dismissed Mother's motion to modify custody for the purported failure of Mother to present evidence demonstrating a change of circumstances. Accordingly, Mother's point on appeal is granted, the circuit court's judgment is vacated, and this matter is remanded for the circuit court to make its section 452.410 "best interests of the child" determination before finally ruling on Mother's motion to modify child custody and all related matters that may impact the parenting plan, child support, and any other custodial issues involving the parties. Conclusion The judgment of the circuit court is vacated, and this matter is remanded to the trial court for further proceedings consistent with today's ruling.

Mark D. Pfeiffer, Judge Gary D. Witt, Presiding Judge, and Edward R. Ardini, Jr., Judge, concur.

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