Sharon M. Turley, Respondent, v. Dave B. Turley, Appellant.

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: Sharon M. Turley, Respondent, v. Dave B. Turley, Appellant. Case Number: 55576 Handdown Date: 01/05/1999 Appeal From: Circuit Court of Cole County, Hon. Patricia S. Joyce Counsel for Appellant: Mark Anthony Richardson Counsel for Respondent: Michael P. Riley Opinion Summary: Dave Turley appeals the judgment of the trial court modifying his visitation with his two minor children. He claims that the trial court erred in modifying his visitation because (1) no evidence was presented to support a finding of a change in circumstances of the child or the parents to warrant a modification, and (2) no evidence was presented to support a finding that visitation would endanger the children's physical health or impair their emotional development to warrant a restriction of his visitation. Mr. Turley also claims that the trial court abused its discretion in awarding Sharon Turley her attorney's fees and costs on appeal because the award was against logic, arbitrary, and unreasonable. THE JUDGMENT OF THE TRIAL COURT MODIFYING MR. TURLEY'S VISITATION IS AFFIRMED. THIS COURT LACKS JURISDICTION TO CONSIDER THE ISSUE OF ATTORNEY'S FEES. Division Three holds: (1) Where Mr. Turley lived 3 1/2 hours from the children and such distance required long travel times on rural two lane roads back and forth from his home and the children's home through winter conditions in the dark and prevented the children from participating in extracurricular activities on the weekends, the modification directing Mr. Turley to conduct his visitation in the town of the children's residence during the months of December, January, and February was in the best interests of the children. (2)Where the modification of Mr. Turley's visitation did not restrict or even reduce his visitation rights except to change the location of visitation temporarily to the city in which the children reside, the modification was not a "restriction" under section 452.400.2 requiring an endangerment-impairment finding.

(3)Where Mr. Turley did not file a notice of appeal from the trial court's order granting attorney's fees and costs on appeal, this court lacks jurisdiction to consider the issue. Citation: Opinion Author: Robert G. Ulrich, P.J. Opinion Vote: THE JUDGMENT OF THE TRIAL COURT MODIFYING MR. TURLEY'S VISITATION IS AFFIRMED. THIS COURT LACKS JURISDICTION TO CONSIDER THE ISSUE OF ATTORNEY'S FEES. Smart, J. and Edwin H. Smith, J. concur. Opinion: Dave Turley appeals the judgment of the trial court modifying his visitation with his two minor children. He claims that the trial court erred in modifying his visitation because (1) no evidence was presented to support a finding of a change in circumstances of the child or the parents to warrant a modification, and (2) no evidence was presented to support a finding that visitation would endanger the children's physical health or impair their emotional development to warrant a restriction of his visitation. The judgment of the trial court modifying Mr. Turley's visitation is affirmed. Mr. Turley also claims that the trial court abused its discretion in awarding Sharon Turley her attorney's fees and costs on appeal because the award was against logic, arbitrary, and unreasonable. This court lacks jurisdiction to consider Mr. Turley's complaint regarding the award of attorney's fees because the judgment of the trial court awarding attorney's fees was a subsequent judgment to that now on appeal. Upon dissolution of the parties' marriage in 1995, the parties were awarded joint legal custody of their two minor children with Mrs. Turley receiving primary physical custody subject to Mr. Turley's rights to reasonable visitation. On March 6, 1997, Mrs. Turley filed a motion to modify the dissolution decree seeking modification of Mr. Turley's visitation rights and an increase in child support. Following a hearing on the motion, the trial court entered its judgment of modification on February 10, 1998, modifying Mr. Turley's visitation and denying Mrs. Turley's request for an increase in child support. The court ruled, "During the months of December, January, and February, given the activities the children may participate in, both in school and extracurricular, and the shorter lengths of daylight hours, the respondent [Mr. Turley] shall conduct his visitation with the minor children in Jefferson City." From this judgment, Mr. Turley appealed. Thereafter, on April 3, 1998, Mrs. Turley filed a motion in the trial court for attorney's fees and costs on appeal. The trial court granted Mrs. Turley's motion on April 16, 1998, and ordered Mr. Turley to pay $1500 to Mrs. Turley for her attorney's fees and costs on appeal. No notice of appeal, however, was filed from the April 16, 1998 judgment.

I. Visitation In Mr. Turley's first and second points on appeal, he claims that the trial court erred in modifying his visitation with his two minor children. He first contends that no evidence was presented to support a finding of a change in circumstances of the child or the parents to warrant a modification. The judgment of the trial court modifying visitation will be affirmed on appeal 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. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Dover v. Dover, 930 S.W.2d 491, 494 (Mo. App. W.D. 1996). Section 452.400.2(FN1) addresses the modification of a parent's visitation rights. It provides in pertinent part: The court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child, but 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. Section 452.400.2. The statute does not require a finding of changed circumstances like the custody modification statute, section 452.410, and the maintenance and child support modification statute, section 452.370.1. Warren v.Warren, 909 S.W.2d 752, 755 (Mo. App. W.D. 1995); James v. James, 853 S.W.2d 425, 427 (Mo. App. E.D. 1993). But see Dover v. Dover, 930 S.W.2d 491, 494 (Mo. App. W.D. 1996) and Pulliam v. Sutton, 728 S.W.2d 252, 253 (Mo. App. W.D. 1987) (declaring that the standard for modifying visitation is the same standard that applies to a modification of child custody, which requires a finding of changed circumstances). While a change of circumstances in the child or parents may convince a trial court that modification of visitation is in the best interests of the child, the court is not compelled under section 452.400.2 to make such a finding. In this case, the trial court modified Mr. Turley's visitation with his children, which was every other weekend, by directing him to conduct his visitation in Jefferson City, where the children lived, during the months of December, January, and February. This modification was in the children's best interests. Evidence was presented that Mr. Turley lived 168 miles, or three and a half hours, from the children in Jefferson City. Such distance required long travel times on rural two lane roads back and forth from Mr. Turley's home and Jefferson City through winter conditions in the dark. Evidence presented also revealed that as the children have gotten older, they are interested in participating in more extracurricular activities such as basketball and lessons. The distance between Mr. Turley's home and Jefferson City prevented the children from participating in such extracurricular activities on the weekends. The trial court, therefore, did not err in modifying Mr. Turley's visitation rights. Point one is denied. Mr. Turley also contends that the court erred in restricting his visitation because no evidence was presented to

support a finding that visitation would endanger the children's physical health or impair their emotional development. The modification of Mr. Turley's visitation directing that during the winter months of December, January, and February he exercise his visitation in Jefferson City, however, did not restrict or even reduce his visitation rights except change the location of visitation temporarily to the city in which the children reside. The endangerment-impairment finding of section 452.400.2 does not affect a situation where "there is no entire restriction of appellant's visitation rights."(FN2) Strueby v. Strueby, 876 S.W.2d 642, 644 (Mo. App. W.D. 1994)(quoting Winters v. Winters, 617 S.W.2d 585, 591 (Mo. App. 1981)). The modification in this case, therefore, was not a "restriction" within the meaning of section 452.400.2 thereby requiring a finding of physical endangerment or impairment of emotional development. See Quackenbush v. Hoyt, 940 S.W.2d 938, 944 (Mo. App. S.D. 1997)(where reduction of visitation from two weekends per month to one weekend and from six weeks during the summer to two weeks was not a restriction under section 452.400.2 requiring an endangerment-impairment finding); Strueby, 876 S.W.2d at 644(where reduction in visitation was not a restriction under statute requiring a finding of physical endangerment or impairment of emotional development); In re Marriage of Amos, 843 S.W.2d 946, 950-953 (Mo. App. S.D. 1992)(where order terminating father's Tuesday and Thursday visitation rights, without disturbing or restricting rights left intact, did not restrict his visitation rights within meaning of statute imposing endangerment-impairment standard). Point two is denied. II. Attorney's Fees on Appeal In Mr. Turley's third point on appeal, he claims that the trial court abused its discretion in awarding Sharon Turley $1500 for her attorney's fees and costs on appeal. He contends that the award was against logic, arbitrary, and unreasonable. This court lacks jurisdiction to consider Mr. Turley's third point on appeal. Mr. Turley filed his notice of appeal from the trial court's February 10, 1998 judgment of modification on March 12, 1998. Thereafter, on April 3, 1998, Mrs. Turley filed in the trial court her motion for attorney's fees and costs on appeal. The court granted the motion on April 16, 1998, ordering Mr. Turley to pay $1500 to Mrs. Turley for her attorney's fees and costs on appeal. Mr. Turley's March 12, 1998 notice of appeal, of course, did not refer to the trial court's April 16, 1998 order awarding attorney's fee, and Mr. Turley did not file another notice of appeal from the April 16, 1998 order. Under Rule 81.04(a), a party may appeal from a judgment or order by filing with the clerk of the trial court a notice of appeal not later than ten days after the judgment or order becomes final. Rule 81.04(a). Rule 81.08(a) requires the notice of appeal to specify the judgment or order from which the appeal is taken. Rule 81.08(a). Mr. Turley failed to file a notice of appeal from the April 16, 1998 order of the trial court relating to attorney's fees. This court, therefore, lacks jurisdiction to consider the issue of attorney's fees. See Sutton v.

Schwartz, 808 S.W.2d 15, 23 (Mo. App. E.D. 1991)(where mother did not file a notice of appeal from an order of the trial court denying her attorney's fees on appeal, appellate court did not have jurisdiction to consider the issue). Point three is denied. The judgment of the trial court is affirmed. All concur Footnotes: FN1.All statutory references are to RSMo 1994 unless otherwise indicated. FN2.Modifications that terminate visitation or require supervised visitation are examples of modification that have been interpreted as restrictions under section 452.400.2 requiring the endangerment-impairment finding. P.L.W. v. T.R.W., 890 S.W.2d 688, 691 (Mo. App. S.D. 1994). Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.