M.D.M, Appellant, v. A.W.S., Respondent.

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M.D.M.

Appellant,

v.

A.W.S.,

Respondent.

) ) ) ) ) ) ) ) ) )

No. ED113141

Appeal from the Circuit Court of St. Louis County Cause No. 23SL-DR03362

Honorable Amanda Bundren McNelley

Filed: February 10, 2026

Before Renée D. Hardin-Tammons, P.J., Angela T. Quigless, J., Thomas C. Clark II, J. Introduction Appellant M.D.M.(Father) appeals the St. Louis County circuit court's child custody and support judgment. Father alleges six points of error. While we affirm, the various applicable standards of review largely dictated our holdings and our review was further complicated by a lacking, lackluster record that shrouded some of the key details affecting this matter. In his first two points, Father argues that the circuit court's judgment (1) is against the weight of the evidence and (2) is not supported by substantial evidence because the Form 14 used an incorrect figure for Respondent A.W.S .'s (Mother) income. We deny

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both points because Father failed to do the four-step analysis required to make an against the weight of the evidence challenge and failed to do the three-step analysis required to challenge a ruling as not supported by substantial evidence. For his third point, Father again challenges the Form 14. This time he claims the court erroneously failed to give him a credit on Line 11 after the court awarded the parties equal visitation time. We disagree. While usually equal visitation time would call for a Line 11 credit, Missouri law allows the court to deny that credit in certain circumstances, such as those here, and without explanation. Pecher v. Pecher, 398 S.W.3d 580, 588 (Mo. App. 2013); Mo. Sup. Ct. R. Form 14, Line 11, Comment C. In points four and five, neither of which are preserved, Father alleges the circuit court abused its discretion in ordering Father to pay a disproportionate share of the guardian ad litem's (GAL) fees and the attorney's fees. Despite the disparity, we cannot conclude the circuit court's action amounted to a "manifest injustice" or "miscarriage of justice" pursuant to the plain error standard of review. Rule 84.13(c). Father's sixth and final point alleges that the circuit court erred in excluding testimony regarding the abatement of child support and that the court should have decided the issue of abatement. We disagree because the circuit court heard Father's evidence on equitable abatement and properly ruled against him. In summary, we affirm despite the parties' decision to deliberately omit from this record – and the circuit court's acquiescence in that omission – an explanation of Daughter's sudden, vehement protestations against living with Father after doing so for years. Considering Father's high burden under plain error review, we also must affirm the

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circuit court's decision to order Father to pay a disproportionate amount of the attorney's fees and GAL fees, despite the court designating him to be the residential parent and awarding him with joint legal and physical custody. Background In October 2007, Mother obtained a judgment from the Missouri Department of Social Services ordering Father to pay monthly child support in the amount of $312. Yet Father paid no child support between August 2009 and October 2022 creating an outstanding balance of $49,565.79. On August 2, 2023, Father filed his petition for a declaration of paternity, for custody of the parties' Daughter, and for a determination of child support after Daughter stated she no longer wanted to live with Father. For most of Daughter's life, the parties had successfully shared custody without court intervention and without a declaration of paternity. In his August petition, Father moved to abate child support and to appoint a GAL. In support of abatement, Father testified that Daughter had resided with him from August 1, 2013 until September 20, 2022 and that in 2009 he and Mother agreed to cancel his child support obligation. Mother disputed Father's testimony asserting instead that they had agreed to defer payments only until Father finished his degree in pharmacy. Moreover, Father testified that he had not seen Daughter for over a year and had only recently seen her just a few times – once for lunch and also at a few therapy sessions. Despite his own preferences, Father conceded that Daughter should get to live where she wants.

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After trial, but before entering judgment, the court signed a consent order which designated Father as Daughter's residential parent. Daughter had lost her enrollment status in the Parkway school district where Father lived and the consent order allowed her to re-enroll in the district. After GAL re-enrolled Daughter in the Parkway district, the circuit court assessed the resulting GAL fees to Father. The court then entered its judgment granting joint legal and physical custody and a parenting plan that awarded equal visitation. Despite the award of equal visitation, we surmise from this sparse record that the parties and the circuit court contemplated that Daughter would continue to live full time with Mother in Barnhart, Missouri but would attend school in St. Louis County. 1 Finally, the circuit court ordered Father to pay 82% of the GAL fees and over 50% of Mother's legal fees. This appeal follows.

1 Yet, the September judgment remains contradictory given the circuit court's admonition displayed prominently on pages six, seven, eight and nine of the parenting plan: "Due to the age of child, custody schedule shall not be strictly enforced, and custody time shall be as agreed between the parties and minor child. Both parties shall encourage the minor child to spend time with the other parent." This seems to undermine the visitation schedule. Moreover, the judgment, briefings and circuit court filings have left this court in the dark as to what occurred between Father and Daughter that led the parties and the court to allow the child to dictate her living arrangements. The court and the parties simply explained that Father did not abuse her, harm her or scream at her. But Father conceded he learned the child's reason after attending counseling sessions with her during the course of the trial. Mother testified that the child was 'devastated' after attending a counseling session with him but she encouraged Daughter to spend time with Father. The record and the circuit court judgment do not elaborate any further. For his part, Father testified that he understood the child did not want to live with him and would not force her to live with him against her wishes.

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Standard of Review We will only reverse a judgment in a court-tried matter when it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Father failed to include a preservation statement for any of his alleged errors in violation of Supreme Court Rule 84.04(e). "The omission of the required preservation statement...'should be considered by the court as a tacit concession that [alleged errors were] not preserved'" and therefore all of Father's points are subject to plain error review. Lewis v. Lewis, 671 S.W.3d 734, 741 (Mo. App. W.D. 2023) (quoting Cable v. State, 634 S.W.3d 845, 849 n.4 (Mo. App. S.D. 2021)). "Plain error review is discretionary and involves two steps: first, we must determine whether the trial court committed evident, obvious, and clear error affecting the defendant's substantial rights; second, if plain error is found, we then consider whether the error actually resulted in manifest injustice or a miscarriage of justice." State v. Weyant, 598 S.W.3d 675, 678 (Mo. App. E.D. 2020) (quoting State v. Berry, 506 S.W.3d 357, 362 (Mo. App. W.D. 2016)). Points One and Two – Father Failed to Effectively Challenge Form 14

We consider these related points together. Father argues in point one that the court's Form 14 was against the weight of the evidence and in point two that it was not supported by substantial evidence. While the circuit court's method of attributing current income to Mother in the Form 14 is dubious, Father waived this deficiency when he did not provide the complete, applicable analytical framework in his brief as required by

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Missouri law. K.E.S. v. S.R.S., 700 S.W.3d 544, 554 (Mo. App. E.D. 2024); Sprueill v. Lott, 676 S.W.3d 472, 478 (Mo. App. S.D. 2023); Houston v. Crider, 317 S.W.3d 178, 187 (Mo. App. S.D. 2010). Thus, we must affirm. Analysis "Substantial evidence and against the weight of the evidence claims are distinct legal challenges which require 'a distinct analytical framework.'" 2 Langston v. Langston, 615 S.W.3d 109, 115 (Mo. App. W.D. 2020) (quoting Koch v. Koch, 584 S.W.3d 347, 355 (Mo. App. S.D. 2019)) (citation modified). Here, Father properly identifies the challenged factual proposition required by both analytical frameworks, specifically, that the circuit court under-reported Mother's income. He points out the court simply adopted the Division of Family Services' Form 14 attributing only $7,572 gross monthly income

2 "A not supported by substantial evidence challenge requires the completion of three sequential steps. The appellant must: (1) identify a challenged factual proposition, the existence of which is necessary to sustain the judgment; (2) identify all of the favorable evidence in the record supporting the existence of that proposition; and, (3) demonstrate why that favorable evidence, when considered along with the reasonable inferences drawn from that evidence, does not have probative force upon the proposition such that the trier of fact could not reasonably decide the existence of the proposition. An against the weight of the evidence challenge requires completion of four sequential steps. The appellant must: (1) identify a challenged factual proposition, the existence of which is necessary to sustain the judgment; (2) identify all favorable evidence in the record supporting the existence of that proposition; (3) identify the evidence in the record contrary to the belief of that proposition, resolving all conflicts in testimony in accordance with the trial court's credibility determinations, whether explicit or implicit; and, (4) demonstrate why the favorable evidence, along with the reasonable inferences drawn from that evidence, is so lacking in probative value, when considered in the context of the totality of the evidence, that it fails to induce belief in that proposition. Gardner v. Gardner, 689 S.W.3d 530, 542 n.10 (Mo. App. S.D. 2024) (citing In re Marriage of Chorum, 469 S.W.3d 484, 489-90 (Mo. App. S.D. 2015)) (citation modified).

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to Mother after she testified before the court that she made as much as $7,904 gross monthly income and an additional monthly bonus averaging $666. But he then fails to identify the evidence favorable to the court decision and why that favorable evidence is lacking – steps required by both analyses. Houston, 317 S.W.3d at 187; Sprueill, 676 S.W.3d at 478. By failing to follow the required framework, Father nullifies his argument and essentially abandons his challenge. Langston, 615 S.W.3d at 115. As such, Father's arguments provide no support for these two points providing us without a basis to grant his requested relief. Points denied. Point Three – Line 11 Credits Are Rebuttable

Here, in addition to his claim that the court got Mother's income wrong, Father claims the court erroneously applied the law in its calculation of the Line 11 credit on the Form 14. Specifically, Father argues that because the court gave him 50% custody time, the law required the court to apply a 34% adjustment downward in his child support obligation. We disagree because the record here is that Father does not fully exercise his visitation rights and Missouri law authorizes the court under such circumstances to withhold the Line 11 adjustment. Pecher, 398 S.W.3d at 588; Mo. Sup. Ct. R. Form 14, Line 11, Comment C. Analysis "In formulating a Form 14, the court can rebut the visitation or parenting time credit adjustments according to Comment C of the Directions for Line 11" if, "the parent obligated to pay support...does not exercise the periods of overnight visitation or

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custody" of the child "without fault of the parent entitled to receive support." Id. at 588-

So here, the circuit court considered the entire record in calculating Line 11. It awarded the parties joint legal and physical custody, equal amounts of visitation and designated Father as the residential parent, presumably to accommodate the minor child's desire to attend the Parkway school district. Despite this clearly-specified visitation schedule providing Father with equal time with his daughter – and going even further by designating him as the residential parent – the court and parties intended the opposite. The reality is that the child lives and will continue to live with Mother almost full time, if not exclusively, rendering the court's order a nullity and exposing the real agreement to be a wink and a nod. The circuit court conceded as much in its parenting plan by repeatedly acknowledging that the custody schedule shall not be strictly enforced. Understandably, Father now exposes the incongruent nature of the court's order by arguing that since he received half the overnights with Daughter, he should get a 34% credit on Line 11. Had Father not willingly chosen to forgo visitation with his daughter, we might find his argument more compelling. But he wants the full benefit of the Line 11 credit while consenting to his daughter not living with him and the law is unsupportive. Mother's evidence corroborates this – Father did not exercise an overnight visitation between September 2022 and the trial date, July 15, 2024. In fact, the record reflects that Father's contact with his daughter was limited to therapy sessions and one lunch during this time period. Again, the record fails to enlighten this court as to what prompted the circuit court to enter a phantom visitation schedule contrary to everyone's

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intentions but apparently necessary to exploit Father's residence for schooling and excuse Daughter from living with him. Regardless, the court and the parties chose to acquiesce in this arrangement although Father now exposes the court's ruse to obtain a financial benefit in the form of a Line 11 visitation credit. His acquiescence, however, dooms his argument because the law allows the circuit court to adjust his Line 11 credit since the evidence showed that Father was not exercising overnight visitation or custody with his child without fault to Mother. Id. at 589; Mo. Sup. Ct. R. Form 14, Line 11, Comment C(1). Point denied. Points Four and Five – The Court-Ordered Fees Were Not Manifestly Unjust

In his fourth and fifth points, Father challenges the circuit court's "orders requiring him to pay 82% of the GAL fees" and "over 50% of Mother's attorney's fees and costs at trial" as "arbitrary and unreasonable to shock the conscience of the court and exhibit[ing] a dearth of careful consideration." The court ordered Father to pay attorney's fees in an amount of $10,000 and GAL fees in an amount totaling $8,480 while ordering Mother to pay GAL fees of just $1,750. Father argues that since appointing GAL was necessary for the child's best interests, each party should bear a proportionate share. Instead, Father asserts, the court's order in this regard is punitive and intended to penalize him for wishing to repair his relationship with Daughter. The court's fee awards appear problematic, especially after the court sided with Father (at least in part) on the merits. But Father did not properly preserve this issue for our review when he did not include a preservation statement in his appellate brief and

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advanced different arguments on appeal. 3 See Metropolitan St. Louis Sewer District v. St. Ann Plaza, Inc., 371 S.W.3d 40, 47-8 (Mo. App. E.D. 2012) ("Even in a court-tried case, where no post-trial motion is required to preserve substantive issues for appellate review...we cannot address arguments that the appellant failed to raise at trial.") (quoting Arnold v. Minger, 34 S.W.3d 650, 654 (Mo. App. S.D. 2011)). Further complicating our review, Father failed to file the transcript from the November 20, 2024 post-judgment motion hearing where this issue may or may not have been discussed. See Poke v. Mathis, 461 S.W.3d 40, 42 (Mo. App. E.D. 2015). Analysis Nevertheless, the circuit court offered a peek into its reasoning for taxing Father with the lion's share of attorney's fees and GAL fees over the course of the litigation. 4

After considering the merits of the case, the court stated that it was "somewhat boggled by the need for a trial," and ordered Father to pay $5,000 in attorney's fees in the

3 In his motion for new trial, Father did not argue the awards were punitive or disproportionate, only advancing arguments based on Mother's conduct and Father did not raise any arguments regarding GAL fees. 4 On October 19, 2023, the circuit court ordered Father to deposit $1,000 toward the GAL's services but did not order Mother to pay anything, adding "fees are subject to reallocation." On December 21, 2023, the circuit court ordered Father to pay GAL $2,000 and Mother was not ordered to pay anything. On March 7, 2024, the circuit court ordered Father and Mother to each pay GAL $750. On May 20, 2024, the circuit court ordered Father to pay an additional $2,000 directly to GAL and ordered Mother to pay an additional $1,000, adding the supplemental language "subject to reallocation at trial." When entering judgment on September 5, 2024, the circuit court ordered Father to pay an additional $730 directly to GAL and ordered him to pay Mother $5,000 for her attorney's fees. In its November 21, 2024 amended judgment, the circuit court increased Father's portion of the GAL fees to $2,000 without ordering Mother to pay anything. On December 19, 2024, the circuit court ordered Father to pay Mother $5,000 for her attorney's fees on appeal.

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September 2024 judgment. When assigning an additional $5,000 in attorney's fees to Father in the December 19 judgment, the court stated again that it was "boggled by the need for a trial," apparently attributing fault to Father after he conceded that he exercised limited visitation with Daughter. The court justified assigning $10,000 in attorney's fees alone to Father after assessing the merits and becoming 'boggled' over the need for a trial. After reviewing the court's assessment of the merits, we question the court's justification. When deciding the significant issues surrounding custody at least, the court sided with Father on the merits. 5

Section 452.355.1. 6 In the September 5 judgment, the court awarded joint legal and physical custody to the parties, as Father requested, but contrary to Mother's request for sole legal and sole physical custody. Ultimately, the court also sided with Father and designated his address within the Parkway School District as the residential address for Daughter. Despite this, we cannot conclude the circuit court's action amounted to a "manifest injustice" or "miscarriage of justice" pursuant to the plain error standard of review. Rule 84.13(c). The applicable statutes also empower the circuit court with broad discretion when apportioning the payment of fees. Section 452.423.5(2); section 452.355.1 RSMo.

5 Section 514.060 and Rule 77.01 both state that in civil cases the prevailing party shall recover costs against the other party, except in those cases in which a different provision is made by law. Section 452.355 incorporates the idea that the prevailing party should recover costs in parental child custody cases by including the 'merits of the case' as one of the relevant factors. 6 All statutory references are to the Revised Statutes of Missouri (2016).

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Moreover, Father undermined his position by failing to file the transcript from the November 20, 2024 post-judgment motion hearing where this issue may or may not have been discussed. See Poke, 461 S.W.3d at 42 ("The record on appeal must contain all of the record, proceedings, and evidence necessary for this Court to determine the questions presented for our decision.") (citations omitted). Points denied. Point Six – The Circuit Court Heard Evidence on and Decided the Abatement Issue

In his sixth and final point, Father claims that the circuit court erred by granting Mother's motion in limine and excluding evidence that would support granting an 'equitable abatement' of Father's past due child support. Father states he was precluded from admitting evidence supporting equitable abatement and that this court should either order an abatement or order the circuit court to hear evidence and decide the issue of abatement. We disagree and find the circuit court heard and considered Father's evidence on this issue and ruled against him. Point denied. Conclusion We affirm the circuit court's judgment.

__________________________ THOMAS C. CLARK II, J.

Renée D. Hardin-Tammons, P.J. and Angela T. Quigless, J., concur.