Hannah Searcy, Respondent, v. John and Linda Seedorff, Appellants, Ricki Lee Searcy, and James Kennedy, Respondents.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Western District Case Style: Hannah Searcy, Respondent, v. John and Linda Seedorff, Appellants, Ricki Lee Searcy, and James Kennedy, Respondents. Case Number: 55928 Handdown Date: 05/18/1999 Appeal From: Circuit Court of Ray County, Hon. Werner A. Moentmann Counsel for Appellant: David Keith Holdsworth Counsel for Respondent: George Allen Pickett Opinion Summary: John and Linda Seedorff appeal the judgment of the trial court transferring custody of Ariel Searcy, Abegail Searcy, Brittany Kennedy and Tiffany Kennedy to the respondent, Hannah Searcy. The Seedorffs contend the trial court erred in transferring custody of the four children from them to Ms. Searcy because Ms. Searcy failed to establish the required standard of proof for modification of child custody under section 452.410.1 RSMo 1994, the modification of custody was not supported by the evidence and was against the weight of the evidence, the Seedorffs were not required to qualify as foster parents to be awarded custody of Brittany and Tiffany Kennedy, and the Seedorffs did not violate the court's order of visitation. REVERSED AND REMANDED. Division Three holds: (1)Where Ms. Searcy failed to present any evidence of a substantial change in the circumstances of either the children or Mr. and Mrs. Seedorff, she did not satisfy the threshold requirement to invoke the provisions of section 452.410.1. (2)the trial court had jurisdiction to resolve the custody of Brittany and Tiffany Kennedy because they and their parents were properly before the court for the purpose of determining their paternity, custody, and welfare under sections 210.826, 210.829, and 452.375. The juvenile court never assumed jurisdiction over the children because there

was a valid court order issued awarding legal custody to the Seedorffs pursuant to section 452.375. The foster care licensing statutes were never triggered and sections 210.486 and 210.516 are not applicable. Therefore, the trial court erred in granting Ms. Searcy's motion to modify the judgment awarding custody to the Seedorffs. Citation: Opinion Author: Robert G. Ulrich, P.J. Opinion Vote: REVERSED AND REMANDED. Smart and Spinden, JJ., concur. Opinion: Appellants, John and Linda Seedorff, appeal the judgment of the trial court transferring custody of Ariel Searcy, Abegail Searcy, Brittany Kennedy and Tiffany Kennedy to the respondent, Hannah Searcy. The Seedorffs contend the trial court erred in transferring custody of the four children from them to Ms. Searcy because (1) Ms. Searcy failed to establish the required standard of proof for modification of child custody under section 452.410 RSMo 1994, and (2) the modification of custody was not supported by the evidence and was against the weight of the evidence. The judgment of the trial court modifying the original custody decree is reversed, and the cause is remanded to the trial court with instructions. FACTS The issue presented is whether the custody of four minor children should be placed with John and Linda Seedorff or Hannah Searcy, natural mother of the children; Ariel Searcy, born July 22, 1990; Abegail Searcy, born October 21, 1991; Tiffany Kennedy, born July 18, 1995; and Brittany Kennedy, born July 18, 1995. The Respondent, Hannah Searcy, is the natural mother of all four children. Respondent, Ricki Lee Searcy, son of the Appellants, is the natural father of Ariel and Abegail Searcy. Additional Respondent, James Kennedy, is the natural father of Tiffany and Brittany Kennedy. The Appellants, John and Linda Seedorff, are the natural grandparents of Ariel and Abegail Searcy, but are not related to Tiffany and Brittany Kennedy. Ricki Lee Searcy and Hannah Searcy were married on July 28, 1990, but were separated on or about August 9,

1. All four children were born during the marriage, but not all four children were born of the union of the couple. The

marriage ended on May 20, 1996, when the Circuit Court of Ray County entered a Judgment Entry and Decree of Dissolution of Marriage. The trial court was petitioned not only to adjudicate the dissolution of the marriage of Ricki Lee Searcy and Hannah Searcy, but also to establish the paternity of all four children. For this reason the court on August 14, 1995,

ordered Hannah Searcy to file an Amended Petition adding James Kennedy as an additional party to the action. Ms. Searcy filed an amended petition on September 15, 1995, asking the court to declare that Mr. Kennedy was the natural and biological father of Brittany and Tiffany. Section 210.826.(FN1) The trial court assumed jurisdiction to hear the paternity action. Section 210.829. Mr. Kennedy appeared in person and by counsel. In his answer to Ms. Searcy's amended petition, Mr. Kennedy also requested that he be declared the natural and biological father of Brittany and Tiffany. The trial court issued an Order of Paternity of the minor children, in addition to the Decree of Dissolution of Marriage, that declared Hannah Searcy the natural mother of all four children, Ricki Lee Searcy the natural father of Ariel and Abegail Searcy, and James Kennedy the natural father of Tiffany and Brittany Kennedy.(FN2) In its original decree, entered May 20, 1996, the court found that each of the natural parents was unfit to have the primary care, custody, or control of the children and that clear, cogent, convincing and substantial evidence was presented to show that the best interests of the children necessitated placement of all four children together with the Seedorffs. The court awarded the primary care, custody and control of all four children to Mr. and Mrs. Seedorff and granted Ms. Searcy, Mr. Searcy, and Mr. Kennedy rights of "reasonable, limited, and restricted visitation." The court further ordered that Mr. and Mrs. Seedorff, Ms. Searcy and the children enter into family and personal counseling using the services of Karla Woodring, a professional counselor. The children lived together in the Seedorffs' home from November of 1995 through June of 1998. The twins, born to Hannah Searcy and James Kennedy, were approximately four months old when they were placed with the Seedorffs. Shortly after the Decree of Dissolution of Marriage was granted, the two oldest children, Ariel and Abegail Searcy, related to Ms. Woodring in the course of the court ordered counseling that they had been sexually abused by Ms. Searcy's younger brothers, Ms. Searcy's father, and Mr. Kennedy. The abuse allegations were reported to DFS. Various allegations of physical, sexual, and emotional abuse continued to surface throughout the period the girls were in counseling with Ms. Woodring – approximately June of 1996 to the present. At the time that the abuse allegations initially surfaced, Ms. Searcy voluntarily ceased counseling with Ms. Woodring. On September 25, 1996, four months after the trial court entered its Judgment Entry and Decree of Dissolution of Marriage, Ms. Searcy filed a Motion to Modify the Decree of Dissolution of Marriage regarding custody of the four children, alleging that a substantial and continuing change in circumstances had occurred. She asserted that she was gainfully employed and capable of providing a stable and secure home for the four children, that Mr. and Mrs. Seedorff had persistently withheld visitation from her without justification, and that the best interests of the children required that they be returned to her custody.

In December of 1996, Ms. Woodring informed the Guardian Ad Litem of all four children that the childrens' best interests required suspension of the court-ordered visitation of the natural parents. Therefore, on or about December 23, 1996, the court's Order of Visitation of May 20, 1996, was temporarily suspended. On February 27, 1997, four months after Ms. Searcy filed her Motion to Modify, the trial court entered an Interlocutory Order of Custody, Visitation, and Support finding that Ms. Searcy was in violation of the court's order of May 20, 1996, in that she "voluntarily ceased counseling activities with Karla Wooding." The court found that the best interests of the children required that Ms. Searcy return to counseling with Ms. Woodring, and the court ordered Ms. Searcy to follow any and all directives of Ms. Woodring with respect to the health, safety and welfare of the children. The trial court also reinstated the visitation provisions of the May 20, 1996, judgment subject to additional conditions including that Ms. Searcy not have any of the minor children in the presence of her parents, her brothers, or Mr. Kennedy. The trial court, on its own motion, entered an Order Prohibiting Visitation on June 6, 1997. The order directed termination of any and all types of communication between Ms. Searcy's parents and the children due to "reported improper acts and statements that . . . negatively impacted the minor children." The trial court conducted a hearing on Ms. Searcy's Motion to Modify the Decree of Dissolution of Marriage on August 27, 1997. At trial, evidence was adduced regarding Ms. Searcy's alleged change in circumstances. Eight months after the trial concluded, the trial court entered an Order of Modification on April 22, 1998, that purported to transfer the custody of the four children from Mr. and Mrs. Seedorff to Ms. Searcy. On May 1, 1998, the trial court entered its Judgment Entry Decree of Modification that amended the court's April 22, 1998, order and found that a substantial change in circumstances existed that warranted the transfer of custody from Mr. and Mrs. Seedorff to Ms. Searcy, found Ms. Searcy to be a fit and proper person to have custody and control of the children, and ordered that custody of the four minor children be placed with Ms. Searcy. Mr. and Mrs. Seedorff moved the court on June 4, 1998, to enter an order permitting them to post a supersedeas bond so as to stay enforcement of the judgment modifying the original custody award during the penancy of the appeal. The court denied the Seedorffs' motion on June 9, 1998. On June 23, 1998, the court ordered the Lawson Police Department to retrieve Ariel and Abegail Searcy from the Seedorffs' and deliver them to the custody of Ms. Searcy. Mr. and Mrs. Seedorff now appeal the trial court's Judgment entered on May 1, 1998, directing transfer of custody of the four minor children to Ms. Searcy. STANDARD OF REVIEW

The decision of the trial court will be affirmed on appeal unless no substantial evidence supports it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The appellate court "should set aside a judgment on the ground that it is against the weight of the evidence only 'with caution and with a firm belief that the decree or judgment is wrong.'" Harris v. Harris, 803 S.W.2d 167, 169 (Mo. App. S.D. 1991) (quoting Jun v. Murphy, 763 S.W.2d 290, 294 (Mo. App. E.D. 1988)). In reviewing a contention that the evidence is insufficient, the evidence is viewed in the light most favorable to the verdict, and deference is accorded to the trial court's assessment of credibility. Dent v. Dent, 965 S.W.2d 230, 235 (Mo. App. W.D. 1998); Hankins v. Hankins, 920 S.W.2d 182, 186 (Mo. App. W.D. 1996). APPELLANT'S POINTS ON APPEAL In their first point on appeal, Mr. and Mrs. Seedorff contend the trial court erred in modifying child custody and transferring custody of the four children to Ms. Searcy because Ms. Searcy failed to establish the required standard of proof for a modification of custody. Specifically, the Seedorffs argue that to modify child custody under section 452.410.1, Ms. Searcy was required to show that a substantial change in the circumstances of either the children or the custodian had occurred since the prior custody decree and that the modification of the prior decree was necessary to serve the best interests of the children. Section 452.410.1. The Seedorffs contend that because Ms. Searcy presented evidence focusing solely on what she perceived to be significant changes in her own circumstances, she failed to show any change in the circumstances of either the children or themselves and, therefore, failed to meet the burden of proof required to modify child custody under section 452.410.1. The standard governing the modification of a decree of custody is set forth in section 452.410.1 and provides that [t]he court shall not modify a prior custody decree unless it has jurisdiction under the provisions of section 452.450 and it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child. Section 452.410.1. The Seedorffs are correct that the change in circumstances required by section 452.410.1 must relate to the children or their custodian, not the noncustodial parent. In re Marriage of Carter, 794 S.W.2d 321, 324-25 (Mo. App. S.D. 1990). An anomalous exception to this rule has been recognized in this district and the Southern District in a few cases where custody of a child has been awarded to a third party and a noncustodial parent seeks modification of the custodial order. See Anderson v. Hall, 823 S.W.2d 109, 110-11 (Mo. App. W.D. 1991); Shortt v. Lasswell, 765 S.W.2d

387, 389 (Mo. App. S.D. 1989); Esry v. Esry, 628 S.W.2d 700 (Mo. App. S.D. 1982); Callaway v. Callaway, 590 S.W.2d 700 (Mo. App. S.D. 1979); Meinking v. Meinking, 529 S.W.2d 440 (Mo. App. K.C. Dist. 1975). Under the exception, a change in circumstances of a "reformed" noncustodial parent, absent any showing of a change in the circumstances of the child or the custodian, has been accepted as an exception to the provision of section 452.410.1, thereby allowing the court to consider a change in circumstances of the noncustodial parent as the basis for modifying custody. See Anderson, 823 S.W.2d at 110-11; Shortt, 765 S.W.2d at 389. Prior to the enactment of section 452.410.1, case law provided that modification of child custody only required proof of a "material change of circumstances" and a showing that modification was in the best interests of the child. See J.G.W. v. J.L.S., 414 S.W.2d 352, 354 (Mo. App. 1967). Under the old standard, courts commonly modified custody upon a showing of a change in the circumstances of the natural parent. See e.g. Meinking, 529 S.W.2d at 443-44; Swan v. Swan, 262 S.W.2d 312 (Mo. App. S.L. Dist. 1953). The enactment of section 452.410.1 in 1974 added the requirement that the change providing the basis for modification of custody must be in the circumstances of either the child or the custodian. Section 452.410.1. After the enactment of 452.410.1, the courts did not address the effect and implications of the statute on the prior modification standards. Some courts, therefore, continued to apply the modification standards set forth in the prior case law. See Esry v. Esry, 628 S.W.2d 700 (Mo. App. S.D. 1982); Callaway v. Callaway, 590 S.W.2d 700 (Mo. App. S.D. 1979). The Southern District in Shortt v. Lasswell and subsequently this district in Anderson v. Hall relied on such cases to establish the third party exception to the custody modification statute. See Anderson, 823 S.W.2d at 110-11; Shortt, 765 S.W.2d at 389. The plain language of section 452.410.1, however, provides no exception to the requirement that a moving party, any moving party, who seeks to modify a custody order must first establish that a substantial "change in circumstances of the child or his custodian" has occurred. Section 452.410.1 (emphasis added). This court in McCreary v. McCreary, stated that "information pertaining to [the noncustodial parent] is irrelevant concerning proof of change in circumstances under the first part of section 452.410." 954 S.W.2d 433, 445 (Mo. App. W.D. 1997) (quoting McClain v. Chafee, 894 S.W.2d 719, 722 (Mo. App. W.D. 1995)). The court further stated that information of the noncustodial parent's "lifestyle and suitability of her environment for a child" is relevant only in determining what is in the child's best interests. Id. Although McCreary involved a noncustodial parent's attempt to obtain from the former spouse custody of the children born during the marriage by seeking modification of the custodial provisions of the decree terminating the marriage, the statement is equally applicable in cases where noncustodial parents attempt to obtain custody of a child from a third party custodian. The rationale for requiring a substantial change in the circumstances of the child or the custodian, whether

parent or third party, includes the desire to maintain a stable nurturing environment for the child. The ability of a noncustodial parent to be heard by a court on the issue of custody of the parent's child at any time during the child's minority because the parent's conduct or environment has changed, without consideration for the circumstances of either the child or the third party custodian, poses a constant threat to the child's stable environment. As noted in Flathers v. Flathers, "[i]n a proceeding to modify third-party custody, the parental presumption favoring the noncustodial parent would not constitute a change in circumstances of either the child or custodian supporting a change of custody from the third-party custodian." 948 S.W.2d 463, 467 (Mo. App. W.D. 1997). The requirement imposed by section 452.410.1 that a change in the circumstances of the child or the custodian must be demonstrated before a court can consider modifying a custody award previously entered in a custodial proceeding recognizes no exception where the custodian is a third party. Although section 452.375.5 recognizes the presumption that favors parents over third parties when courts consider awarding custody of children, the parental presumption applies only where the appropriate custodian is first determined in a child custody proceeding and the parent is a party to the proceeding, and not in a subsequent proceeding to modify custody. See Flathers, 948 S.W.2d at 466-7. To the extent that the teaching in Anderson v. Hall, 823 S.W.2d 109 (Mo. App. W.D. 1991) conflicts with this rule, it is not the law, and it is overruled.(FN3) Review of the record fails to reveal any evidence presented to the trial court that demonstrates a substantial change in the circumstances of the child or the custodian. The only evidence offered by Ms. Searcy in her attempt to show a change in the circumstances of either the children or Mr. and Mrs. Seedorff consisted of: (1) evidence that Mr. and Mrs. Seedorff failed to seek the foster parent status that would allow them to take custody of Brittany and Tiffany Kennedy who are not relatives of the Seedorffs, and (2) Ms. Searcy's testimony that visitation was persistently withheld by Mr. and Mrs. Seedorff without justification. Ms. Searcy argues that a significant and relevant change in circumstances applicable to the Seedorffs occurred after the original custody proceeding by the failure of the Seedorffs to obtain approval as foster parents under section 210.486. Ms. Searcy's premise for this assertion is that the Seedorffs cannot legally retain custody of Brittany and Tiffany, who are not related to them, without qualifying as foster parents as provided by section 210.516. Sections 210.486 and 210.516 are not applicable. The foster care licensing statutes are triggered only where the juvenile court assumes jurisdiction over the children. When the juvenile court assumes jurisdiction, the legal right to custody is in the Division of Family Services, and the foster parents retain physical custody as agents of the Division of Family Services. In the Matter of Trapp, 593 S.W.2d 193, 204 (Mo. banc 1980). The juvenile court never assumed jurisdiction over the children in this case because there was a valid court order issued awarding legal custody to the

Seedorffs under the divorce statute, section 452.375. The trial court had jurisdiction to resolve the custody of Brittany and Tiffany because they and their parents were properly before the court for the purpose of determining the childrens' paternity, custody, and welfare under sections 210.826, 210.829, and 452.375. The court was required to adjudicate the childrens' custody as it determined the best interests of the children required, which includes placement with the grandparents of their siblings with whom they had lived since they were four months old, if the court determined that the natural parents were unfit custodians and if extraordinary circumstances mandated such placement. The failure of the Seedorffs to obtain foster parent status does not constitute a change in circumstances providing the basis for a modification of custody. Ms. Searcy also claims that the Seedorffs improperly and persistently denied her visitation rights. The court's original custody award provided that Ms. Searcy was granted "reasonable, limited, and restricted visitation." A custodian's denial of the visitation rights of the noncustodial parent can be a change in circumstances that may justify modification of custody, especially where the evidence shows an unjustified and flagrant pattern of willful denial of visitation. See Tilley v. Tilley, 968 S.W.2d 208, 212 (Mo. App. S.D. 1998) (citing Lindell v. Coen, 896 S.W.2d 525, 528 (Mo. App. W.D. 1995)). In this case, however, the guardian ad litem testified that Mr. and Mrs. Seedorff were directed by him and later the court to suspend visitation due to the pending DFS investigation against Mr. Kennedy, Ms. Searcy and other members of Ms. Searcy's family. Mr. and Mrs. Seedorff admitted that Ms. Searcy was denied visitation with Ariel and Abegail once because the children were ill, but Ms. Searcy was unable to recall with specificity any other missed visitation periods. Such evidence failed to show a pattern of "willful denial of visitation" on the part of the Seedorffs, and does not provide a substantial change in circumstances justifying a modification of custody. Because Ms. Searcy failed to show that the circumstances of the children or the custodians had substantially changed, she did not satisfy the threshold requirement to invoke the provisions of section 452.410.1. Her motion to modify the judgment awarding custody to the Seedorffs, therefore, should have been denied.(FN4) The judgment of the trial court modifying the original decree is reversed, and the cause is remanded to the trial court with directions to enter judgment denying the motion for change of custody and reinstating the prior judgment that granted the Seedorffs custody of Ariel Searcy, Abegail Searcy, Brittany Kennedy, and Tiffany Kennedy. The court should also consider granting reasonable visitation privileges to the natural parents and ordering the natural parents to pay child support in a proper amount. All concur

Footnotes: FN1.All statutory references are to RSMo 1994 unless otherwise indicated. FN2.Each of the three natural parents was made a party to the dissolution and custody suit as were the appellants, Mr. and Mrs. Seedorff. FN3.It should be noted that the Southern District also appears to have abandoned the third party exception to the modification statute in In re Marriage of Carter, 794 S.W.2d 321, 324-25 (Mo. App. S.D. 1990). In Carter, the court discussed the possible purpose of the third party exception stating that "[t]he basis for recognizing such an exception to the express limitation of section 452.410 is not clear." Id. at 324. The court hypothesized that the basis for the exception might be because an award of custody to a third party in a divorce decree is either expressly or impliedly a temporary award of custody. Id. Similar to this district in Flathers, however, the court went on to hold that where custody has been vested in a third party, the parental presumption disappears, and "the weight to be assigned to the factor of biological parentage is but scant." Id. at 325 (citing In Interest of K.K.M., 647 S.W.2d 886, 890 (Mo. App. 1983) (holding that the "presumption which favors vesting of custody in the natural parent must fall whenever the best interest of the child, for some special or extraordinary reason or circumstance, mandate that custody be vested in third persons")). The court, therefore, held that a change in the circumstances of the noncustodial parent must be considered only as a factor relevant to determining the best interests of the children. Id. at 327. FN4.Because point one is dispositive, point two need not be addressed. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.