Unitey Kull, Respondent, v. Amr Farahat, Appellant.

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UNITEY KULL,

Respondent,

v.

AMR FARAHAT,

Appellant. ) ) ) ) ) ) ) ) )

ED113245

Appeal from the Circuit Court of St. Louis County The Honorable Matthew Hearne

Before Renée D. Hardin-Tammons, Presiding Judge, Angela T. Quigless, Judge, Thomas C. Clark II, Judge Introduction Appellant Amr Farahat (Father) appeals the judgment modifying a prior dissolution of marriage and child custody order entered by the St. Louis County circuit court favoring Respondent Unitey Kull (Mother). Father alleges five points of error. In his first point, Father argues that the circuit court made an error of law by analyzing his request to have final say regarding the minor child's secondary school choice as a request for sole legal custody. We affirm because Father failed to demonstrate the change was necessarily in the best interests of the child. In his second point, Father claims the court's

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decision denying him school choice authority was not supported by substantial evidence. We affirm because Father failed to adhere to the three-step analysis required to demonstrate the ruling was not supported by sufficient evidence. In his third, fourth and fifth points Father claims that the circuit court abused its discretion when it ordered him to pay her attorney's fees, denied his request for attorney's fees and ordered him to pay her attorney's fees on appeal, claiming the circuit court did not properly analyze the statutory factors. For points three and four we affirm because the court provided sufficient grounds for assessing attorney's fees, especially considering Father's past communication with Mother. We dismiss Father's point five because he failed to compile the record on appeal necessary for our review. Background Father and Mother were married from July 10, 2011 to March 2, 2016 and share one child together. As part of the 2016 dissolution judgment, the court awarded the parties joint legal and physical custody of their minor child. On October 18, 2018, the parties entered into a consent agreement, modifying the visitation schedule to accommodate Father who relocated out of state for work. On January 17, 2023, Mother filed a motion to modify the custody agreement requesting sole legal and physical custody. Mother testified that several interactions with Father and multiple factors caused her to request the custody change. Mother alleged that she and Father do not agree on major decisions, Father is not exercising all his visitation periods, he is "unwilling to productively communicate," "unilaterally demands changes," "refuses to make similar

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accommodations," "threatens to withhold child support," "attempts to control [Mother's] daily decisions," "threatens to call the police," "demands telephone contact with the child at exact, specified times" and "denigrates her and her husband to the minor child." Shortly after Mother filed the case, a local university offered Father employment and he relocated to St. Louis. Before trial, Mother amended her motion, dropping her request for sole legal custody but requesting other modifications to the agreement and her attorney's fees. Father also requested changes, asking the court to grant him final authority on which secondary school the minor child would attend and an award of legal fees. The circuit court entered a judgment for joint physical and legal custody, denying Father's request for final authority on school choice after the court analyzed it as a request for sole legal custody. Mother requested that the court award her $15,000 of her collective $30,363 in attorney's fees and the court ordered Father to pay $8,000. After he filed this appeal, the circuit court awarded Mother another $14,567 of the $25,000 she requested in anticipated attorney's fees for the appeal. Father appealed both the court's modification judgment and the subsequent award of attorney's fees for the appeal. Point One – Father Was Not Prejudiced by the Court's Error of Law In his first point, Father challenges the circuit court's decision not to grant him final decision-making authority on which secondary school the child will attend. We affirm. Father correctly points out that the circuit court erroneously applied the law when it treated his request for school choice authority as a request for sole legal custody. He did not suffer any prejudice however, because the circuit court included an alternative

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holding that there was not any evidence that awarding Father with this specific authority was necessary for serving the best interests of the child. Standard of Review We will affirm the judgment of the circuit court "unless there is not substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law." Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). "No appellate court shall reverse any judgment unless it finds that error was committed by the trial court against the appellant materially affecting the merits of the action." Rule 84.13(b). Analysis Under Missouri law, when granting joint legal custody, a court is allowed to "allocate[], apportion[], or decree[]...the exercise of decision-making rights, responsibilities, and authority." Section 452.375.1(2) (RSMo Supp. 2024). 1 "[A] modification seeking to give one parent final decision-making authority in the event the parties cannot agree...is not a request to change the custody designation from joint legal custody to sole legal custody." Schiesswohl v. Spain, 696 S.W.3d 907, 914 (Mo. App. S.D. 2024) (citations omitted). A court has authority to modify custody if "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 Supp. 2021).

1 All statutory references are to the Revised Statutes of Missouri (2016) unless otherwise specified.

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While the court acted judiciously when denying Father's request, it erred when labeling his attempt as a sole legal custody request and incorrectly concluded a 'substantial' change in circumstances was the required legal standard. Schiesswohl, 696 S.W.3d at 914. Despite this, the court included an alternative holding, making this error harmless. In its judgment, the court stated that, even if it "were to find a change in circumstances...Father has [not] presented any evidence...that [his proposed modification] is in the best interest of the minor child." While the statute requires just a 'change' in circumstances, not a 'substantial' change, the second prong of the analysis specifies that the court find a custody change "is necessary to serve the best interests of the child." Morgan v. Morgan, 497 S.W.3d 359, 365-66 (Mo. App. E.D. 2016); section 452.410.1 (RSMo Supp. 2021). In this case, the court determined there was not any evidence demonstrating that granting Father school choice authority was necessary to serve the best interests of the child. Lacking this evidence, Father cannot prevail on this claim and any error is therefore harmless. Point denied. Point Two – Father Nullified His 'Not Supported by Substantial Evidence' Claim In his second point, Father claims that the circuit court's decision denying his request for school choice authority was not supported by substantial evidence. However, Father did not follow the required procedure necessary to make that claim. Without citing any legal authority, Father specifically claims that the court could only reject his request for school choice authority if the parties were likely to agree on the school selection, if

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there was a dispute resolution mechanism or if granting Father the final authority would not serve the child's best interests. We affirm. Father's arguments do not support his claim of error because they do not follow the required analytical framework. Additionally, Father improperly shifts the burden of proof on awarding him the school choice authority, claiming the circuit court was required to possess "affirmative evidence supporting the rejection," which is not the law. Standard of Review We will affirm the judgment of the circuit court "unless there is not substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law." Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). "When reviewing whether a trial court's judgment is supported by substantial evidence, we view the evidence in the light most favorable to the trial court's judgment and we defer to the trial court's credibility determinations." Carpenter v. Carpenter, 689 S.W.3d 765, 773 (Mo. App. E.D. 2024) (citing Pasternak v. Pasternak, 467 S.W.3d 264, 268 (Mo. banc 2015)). "[N]o contrary evidence need be considered on a substantial evidence challenge..." Id. (quoting Ivie v. Smith, 439 S.W.3d 189, 200 (Mo. banc 2014)). Analysis To succeed on a not supported by substantial evidence challenge, an appellant must: "(1) identify a challenged factual proposition necessary to sustain the trial court's judgment; (2) identify all the favorable evidence in the record supporting that position; and (3) demonstrate why that supporting evidence, when considered with the reasonable

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inferences drawn therefrom, is so lacking in probative value that the trier of fact could not reasonably believe the proposition." Id. (citing McElvain v. Stokes, 623 S.W.3d 769, 772- 73 (Mo. App. W.D. 2021)). "[F]ailure to follow the applicable framework means the appellant's argument is analytically useless and provides no support for [their] challenge." Id. (citing Langston v. Langston, 615 S.W.3d 109, 115 (Mo. App. W.D. 2020)). While Father makes many thoughtful and well-researched arguments throughout his brief, he did not follow the necessary legal framework in point two. Id. Instead, Father advances an argument that shifts his burden of proof to the court. As previously explained, the circuit court must find the modification is necessary to serve the best interests of the child, before granting his request. Section 452.410.1 (RSMo Supp. 2021). In contrast, Father asserts that "[t]he absence of evidence cited by the circuit court does not constitute affirmative evidence supporting the rejection of Father's provision." Father mistakenly concludes Missouri law required the circuit court to affirmatively disprove that his school choice authority provision was not in the best interests of the child. Instead, Missouri law requires affirmative proof demonstrating Father's proposed modification was 'necessary' before the court could adopt it. Section 452.410.1 (RSMo Supp. 2021). To his credit, Father is heavily invested in securing a quality education for his child and recognizes a disagreement could deprive the child of an enrollment opportunity. However, Missouri law empowers the circuit court to determine that Father's laudable concern does not necessarily translate into evidence supporting modification. See Jackson

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v. Jackson, 764 S.W.2d 526, 526-27 (Mo. App. E.D. 1989) ("Where there is a conflict in the evidence, the trial court has the prerogative to determine the credibility of the witnesses, accepting or rejecting all, part or none of the testimony.") (citing Ware v. Ware, 647 S.W.2d 582, 584 (Mo. App. E.D. 1983)). Point denied. Points Three and Four – Father's Communication with Mother Justified the Court Awarding Attorney's Fees In his third and fourth point, Father objects to the circuit court both awarding attorney's fees to Mother and denying his request. Claiming the court failed to consider the relevant factors, Father asserts that the court "did not fully assess Mother's financial resources, failed to identify any conduct by Father during the pendency of the action that increased litigation costs and failed to assess the relative merit of the claims, ignoring that Mother's principal claim – sole legal custody – was abandoned improperly and shortly before trial after prolonged litigation." We disagree, the circuit court provided a full analysis of all relevant factors, demonstrating the court did not abuse its discretion. Standard of Review We will only reverse an award of attorney's fees if the circuit court abused its discretion. Lokeman v. Flattery, 146 S.W.3d 422, 432 (Mo. App. W.D. 2004) (citing In re Marriage of Eikermann, 48 S.W.3d 605, 613 (Mo. App. S.D. 2001)). "To show an abuse of discretion, the complaining party has the burden of showing that the trial court's judgment is clearly against the logic of the circumstances and so arbitrary and unreasonable as to shock one's sense of justice." Id. Analysis

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"The trial court is considered an expert on the necessity, reasonableness, and value of attorney's fees." Potts v. Potts, 303 S.W.3d 177, 196 (Mo. App. W.D. 2010) (citing Groenings v. Groenings, 277 S.W.3d 270, 280 (Mo. App. E.D. 2008)). "While the party requesting attorney's fees initially bears the burden of proving his or her entitlement to those fees, on appeal, we presume the award was correct and the appellant bears the burden to prove otherwise." Arndt v. Arndt, 519 S.W.3d 890, 915 (Mo. App. E.D. 2017) (citing Bryant v. Bryant, 351 S.W.3d 681, 691 (Mo. App. E.D. 2011)). "As a general matter, parties in a domestic-relations case bear the cost of their own attorneys." Id. (citing In re Marriage of Brown, 310 S.W.3d 754, 758 (Mo. App. E.D. 2010)). "Section 452.355.1, however, allows a motion court to award attorney's fees and costs after considering 'all relevant factors including [1] the financial resources of both parties, [2] the merits of the case and [3] the actions of the parties during the pendency of the action.'" Id. After reviewing these factors considered by the circuit court, we affirm. However, we recognize that the St. Louis relocation did not occur until after Mother filed her petition so Father's alleged failure to notify her about returning to the area could not justify awarding her attorney's fees. Also, Missouri law does not allow the court to consider evidence regarding mediation attempts. 2 Section 435.014.2. Despite this, reversal is not required. In re Marriage of Estep, 978 S.W.2d 817, 818 (Mo. App. S.D. 1998). Other evidence relating to the statutory factors justifies the court awarding

2 Father did not object to this testimony at trial and did not request that we perform plain error review.

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attorney's fees to Mother and declining an award to Father. Section 452.355.1. Preliminarily, Father argues that the circuit court abused its discretion by failing to properly consider Mother's marital resources when awarding fees. When comparing their monthly income, Mother makes about 30% less than Father. While agreeing with this, Father contends however that Mother's monthly marital income exceeds his monthly income by 25%. Conversely, Mother argues that their incomes are substantially similar but Father's assets are one million dollars greater in value compared to her collective assets. The monthly income disparity between the two parties would not be enough to warrant a full award of attorney's fees. See Patton v. Patton, 973 S.W.2d 139, 149 (Mo. App. W.D. 1998). Here, the court awarded $8,000 in fees to Mother of the requested $15,000. Given Father's assets are substantially more valuable, we cannot say the circuit court abused its discretion in awarding a portion of Mother attorney's fees and denying Father the same relief following a review of the financial resources of the parties. Father also claims the circuit court abused its discretion when analyzing the merits of the case, making the award unreasonable. Father argues that a trial could have been avoided but for Mother's initial request for sole legal custody. While we agree that Mother revised her request prior to trial, we reject Father's argument as a compelling factor in his favor. Sharp v. All-N-One Plumbing, 612 S.W.3d 240, 245 (Mo. App. W.D. 2020) ("If a party does not support contentions with relevant authority or argument beyond conclusory statements, the point is deemed abandoned." (quoting Carlisle v. Rainbow Connection, Inc., 300 S.W.3d 583, 585 (Mo. App. E.D. 2009))).

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He further asserts that mother's initial motion was "deficient, non-meritorious, and ultimately abandoned" which increased litigation costs. Father claims Mother's initial motion lacks merit because it was "rebutted by Father's answer and because Mother relinquished her principal claim." These assertions do not substantively address the merit of Mother's case. When Father denies Mother's allegations in his answer, he is placing issues in contention, not removing them as potential points of disagreement, as "pleadings are not self-proving." In re Trust of Nitsche, 46 S.W.3d 682, 685 (Mo. App. S.D. 2001) (citations omitted). Although Mother changed her request from sole legal to joint legal and physical custody, the court cannot conclude the original claim was without merit, especially considering Father relocated back to St. Louis after she filed her January 2023 petition for sole legal custody. Supporting his allegation that Mother's initial request for sole custody was 'deficient,' Father cites to a number of Mother's procedural mistakes. Specifically, Father states that Mother failed to file a propose parenting plan with her initial petition, she violated local court rules by declining to participate in mandatory parenting classes, she failed to file financial disclosures and she "eventually withdrew her demand for sole legal custody...without leave of court or Father's consent." Father states that it is an abuse of discretion "to allow amendments that differ substantially from the initial motions, reinventing the underlying cause of action, shortly before a trial and then penalize the other party for litigation costs incurred primarily defending a non-meritorious initial amendment." In short, we note that Father waived any allegation of error regarding the amended petition and her failure to submit a parenting plan by permitting the issue to

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proceed to trial without objection. Rickard v. Rickard, 616 S.W.2d 95, 96 (Mo. App. E.D. 1981) (citing Meinecke v. Stallsworth, 483 S.W.2d 633, 635-36 (Mo. App. Kansas City Div. 1972)). Father argues that the court abused its discretion because Mother did not provide any of the financial documentation required under Local Rule 68.5 when a party requests attorney's fees. However, Father failed to include the local rule as part of the record on appeal, precluding our ability to review that argument. In re Marriage of Davis, 493 S.W.3d. 452, 454 (Mo. App. S.D. 2016) ("The existence and content of local court rule[s]...could be established in one of at least two ways – admission into evidence at trial or judicial notice."). Even had he provided Local Rule 68.5 for our review, Father has not established that the evidence would be any different if the rule was enforced and therefore "shows no prejudice by reason of any violation of a local court rule." Anderson v. Anderson, 667 S.W.2d 24, 24 (Mo. App. E.D. 1984). Finally, Father states the circuit court also abused its discretion when evaluating the actions of the parties while the case was pending. Father argues that the circuit court relied on communication preceding the case as evidence regarding his actions during the case. He is correct, actions before the case are precluded from consideration as conduct while the matter is pending. However, the court could consider his 'horrendous communications' when assessing the merits of the case, making any error harmless. See Tracy v. Tracy, 961 S.W.2d 855, 859 (Mo. App. S.D. 1998). Father's inappropriate and expletive laden communication with Mother would alone justify the award of attorney's fees. Point denied.

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Point Five – Father Failed to Preserve a Record for Review and Waived Any Error Related to a Failure to Follow Local Rules In his final point, Father claims the circuit court abused its discretion when awarding Mother with $14,567 out of her requested $25,000 in attorney's fees on appeal. Specifically, Father states that local rules require the court to consult updated financial statements before awarding attorney's fees on appeal. Father argues both that it was impossible for the circuit court to evaluate two of the statutory factors set forth in section 452.355(1) while simultaneously arguing that the court's failure to evaluate those two factors "constitutes a failure to exercise the [court's] discretion." Finally, Father argues the assessment of attorney's fees on appeal has a chilling effect on a litigant's right to appeal. Father failed to preserve and compile the record from the February 11, 2025 hearing on Mother's Motion for attorney's fees on Appeal, precluding our ability to review the point and prompting dismissal. Standard of Review We will only reverse an award of attorney's fees if the circuit court abused its discretion. Lokeman, 146 S.W.3d at 432. "To show an abuse of discretion, the complaining party has the burden of showing that the trial court's judgment is clearly against the logic of the circumstances and so arbitrary and unreasonable as to shock one's sense of justice." Id. Analysis

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"Missouri Supreme Court Rule 81.12 3 requires the appellant to compile the record on appeal." Bishop v. Heartland Chevrolet, Inc., 152 S.W.3d 893, 897 (Mo. App. W.D. 2005) (quoting Ricketts v. Seagrass, 99 S.W.3d 515, 516 (Mo. App. E.D. 2003)). "Appellant has a duty to provide this Court with transcripts necessary to resolve the issues raised on appeal." Abram v. TitleMax of Mo., Inc., 684 S.W.3d 74, 90 (Mo. App. E.D. 2023) (citing Rule 81.12(c)(1)). "Matters omitted from the record will not be presumed to be favorable to the appellant." Id. (quoting Wilkerson v. Prelutsky, 943 S.W.2d 643, 649 (Mo. banc 1997)). "In the absence of a sufficient record, there is nothing for this court to review, and the [point on] appeal must be dismissed." City of Plattsburg v. Davison, 176 S.W.3d 164, 169 (Mo. App. W.D. 2005) (quoting Fansher v. Dir. of Revenue, 147 S.W.3d 873, 874 (Mo. App. W.D. 2004)). Father states that "[t]he circuit court did not produce a record of the hearing," attempting to shift his burden under Missouri law to the circuit court. Rule 81.12. Instead, Father presents his recollection of the circuit court's reasoning and then makes his legal arguments based on that recollection. "We cannot accept the statements in a party's brief as a substitute for the record on appeal." Abram, 684 S.W.3d at 90 (quoting Tatum v. Tatum, 577 S.W.3d 146, 153 (Mo. App. E.D. 2019)). Father has not presented us with a sufficient record. Although we "understand his claim, without a proper record, we cannot review it." Id. Point dismissed. Conclusion

3 All rule references are to the Missouri Supreme Court Rules (2018).

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We affirm the decision of the circuit court on points one through four and dismiss Father's point five. __________________________ THOMAS C. CLARK II, J. Renée D. Hardin-Tammons, P.J. and Angela T. Quigless, J., concur.