IN THE CIRCUIT COURT OF [Redacted] COUNTY, MISSOURI FAMILY COURT DIVISION

FINDINGS & RECOMMENDATIONS FOR JUDGMENT OF MODIFICATION

This matter came before the Court for trial on [Date], 2018. Movant Petitioner [Petitioner] (“Father”) appeared in person with his attorney [Petitioner’s Attorney]. Respondent [Respondent] (“Mother”) appeared in person with her attorney [Respondent’s Attorney]. Trial was held, evidence received, and the Court took the matter under advisement. The Court, having fully reviewed and considered the evidence, now enters the following findings:

FINDINGS

BACKGROUND

1. The parties have one child, [The Child], age eight, social security number: [Redacted]. The minor child and Mother have resided in Missouri since 2012.
2. On [Date], 2012, the Circuit Court of [Redacted] County, Idaho entered a Stipulated Judgement and Decree of Divorce dissolving the marriage of the parties and awarding the parties joint legal and joint physical custody of [The Child]. Father, who was in the Air Force at the time, was awarded visitation for up to 30 days each year when he was on leave from the Air Force. Mother was awarded primary residential custody of the minor child. The Judgment also allowed Mother to relocate to the state of Missouri with the minor child. Father was ordered to pay child support to Mother in the amount of $472.00 per month.
3. The Idaho Court’s Judgment was duly registered in Greene County, Missouri as case number [Redacted]. As mentioned, Mother and the minor child have resided in the state of Missouri since 2012. Upon his honorable discharge from the Air Force, Father relocated to Missouri in May of 2017. Thus, neither parent nor the minor child resides in Idaho at this time. On [Date], 2018, this Court held a conference with the Idaho Court and confirmed that the Idaho Judgment has not been modified and that no proceedings involving the minor child were pending in Idaho. This Court has jurisdiction for the purpose of modifying the prior custody and child support order.
4. On [Date], 2017, Father filed his Motion to Modify alleging the following changes in circumstances:
   1. Father is no longer on active duty with the United States Air Force;
   2. The prior decree awarded parenting time according to Father’s active duty status;
   3. That Mother has refused to provide Father with the information concerning the child’s home-schooling curriculum;
   4. That it would be in the interest of the minor child to have a structured home-schooling curriculum or attend public school.
5. Father cites the following substantial and continuing changes in circumstances regarding modification of the existing child support order:
   1. The financial resources and needs of the parties has changed;
   2. That the amount of time the child spends with each parent and the reasonable expenses associated with that parenting time have changed; and
   3. That the application of Supreme Court Rule 88 and Civil Procedure Form 14 results in a decrease in the presumed child support amount by more than 20 percent.
6. Mother subsequently filed her Answer and Counter-Motion to Modify alleging the following changes in circumstances:
   1. That Father has relocated to Missouri and a new Parenting Plan is required;
   2. That Father lives near the child, but does not have suitable housing to have “50 percent custody;”^[7] and
   3. That the child resides with Mother the majority of the time each year and Mother should be granted the tax dependency credit.
7. Father seeks an order vacating his child support order, designating his address as the address of the minor child for mailing and educational purposes, and an order for parenting time under which the parties will alternate seven day periods of parenting time with the minor child.
8. At the time of the Idaho Judgment, [The Child] was two years old. For the next six years, she had very limited contact with Father. Although he testified that he exercised thirty days of parenting time each year under the Idaho Judgment, Mother more credibly testified that the longest period of time Father had spent with the minor child prior to moving to Missouri was seventeen days. Upon his arrival in Missouri, he immediately began requesting that the parties share parenting time on a week on, week off basis.
9. Although Father did not exercise much parenting time with [The Child], Mother, after moving to Missouri, made arrangements to allow paternal grandmother to have visits [The Child] one weekend each month. She has been doing that for the past four years.
10. Paternal grandmother testified at trial and, although she was critical of Mother’s home-schooling efforts, she stated that Petitioner is a good mother and works at night, making a sacrifice in order to homeschool [The Child].
11. Mother has been homeschooling [The Child] since she began school. Mother credibly testified that this was something that she and Father had discussed and he was aware that she wanted to homeschool [The Child]. When [The Child] was beginning Kindergarten, they decided together that she would be homeschooled.
12. Prior to Father’s move to Missouri, he had never complained about the homeschooling or requested grades or a curriculum. After his move, Mother and Father sat down to discuss the child’s curriculum and she asked for his input. He did not necessarily agree to the curriculum because he didn’t feel like he had enough information, so Mother proceeded with the curriculum that she had explained to him.
13. After Father’s move, Mother voluntarily gave him additional parenting time.

COURT’S REVIEW OF EVIDENCE

14. Many of the findings below are relevant to more than one issue and the Court has considered all of said findings as to any issues to which they might relate, regardless of the section in which the findings are set forth.
15. The Court has considered the testimony of each witness and has made judgments regarding the credibility of each witness. The Court has received some of the testimony from each witness as being credible, and has rejected other parts of the testimony of the witnesses as not credible. These findings and conclusions are consistent with the Court’s determination of the credibility of the evidence in the case and of all witnesses.
16. The recommendations set forth in the proposed judgment regarding child support, custody, and visitation are all in the best interest of the minor child. The Court has given due consideration to all relevant factors in its recommendations pertaining to custody and visitation, including those set forth in §452.375 and 452.400 RSMo.
17. The Court notes that pursuant to §452.410.1 RSMo., this Court can modify the Court ordered custody plan only upon a finding that a change has occurred in the circumstances of the child or her custodians and that a modification is necessary to serve the best interest of the child. Said change of circumstances must be based on facts that have arisen since the entry of the prior judgment or that were unknown to the Court at the time of the prior judgment.
18. The Court concludes from the evidence that there have been changes in the circumstances of the child and the joint custodians since the entry of the original Judgment in this cause such that a modification of the Parenting Plan is now necessary to serve the best interest of the child.
19. Because the parties have not agreed to a custodial arrangement, this Court is required by §452.375.6 RSMo., to include written findings based upon public policy referred to above, and with reference to the eight (8) factors listed in subsection 2 of said statute, detailing the specific relevant factors that make the Court ordered plan in the best interest of the child. The Court’s findings are also required to specify the relevant factors which the Court relied upon in rejecting the custodial plan proposed by both the parties. The findings set forth herein are not intended to be all inclusive, and the Court has taken all relevant evidence and factors in consideration. Further, findings listed below are frequently relevant to two or more of the eight statutory factors, and the Court has considered the evidence and findings as they relate to all factors regardless of the factor under which the findings are articulated. The statutory factors are addressed below:

FACTOR 1
THE WISHES OF THE CHILD’S PARENTS AS TO CUSTODY AND THE PROPOSED PARENTING PLAN SUBMITTED BY BOTH PARTIES.

Both parties submitted Parenting Plans. Both agree that they should share joint legal and joint physical custody of [The Child]. Father seeks a change in [The Child]’s residential address, and requests that the parties share alternating seven day periods of parenting time. The Court rejects Father’s Parenting Plan because a change in residential address and alternating one week periods of parenting time are not in [The Child]’s best interest.

Mother has submitted a Parenting Plan in which Mother’s address remains the address for [The Child]. Under Mother’s Parenting Plan, Father would be awarded parenting time every other weekend from Friday to Sunday evening and an overnight every Tuesday. Each party would have one seven day period of parenting time each summer. The Court rejects Mother’s Parenting Plan because it does not provide ample parenting time for Father during the summer.

FACTOR 2
THE NEEDS OF THE CHILD FOR A FREQUENT, CONTINUING AND MEANINGFUL RELATIONSHIP WITH BOTH PARENTS AND THE ABILITY AND WILLINGNESS OF PARENTS TO ACTIVELY PERFORM THEIR FUNCTIONS AS MOTHER AND FATHER FOR THE NEEDS OF THE CHILD.

The Court does find that the child needs a frequent, continuing and meaningful relationship with both parents. Unfortunately, because of Father’s history in the Air Force^[11], he has really spent little time with [The Child] over the past six years. The Court believes Mother’s testimony that Father never exercised all of his parenting time under the existing Judgment until he moved to Missouri. Even then, Father continued to give up a significant percentage, 50 percent of his weekend time, to paternal grandmother.^[10] Mother testified that until about a year ago, [The Child] had a bond with Father but not a strong bond, not the typical parent child bond.

The Court also notes that despite Father’s criticism of Mother’s ability to homeschool the child and his desire for the residential designation, he does not know what grade she is technically in^[1] and did nothing to check into the school she would attend. He knew only that she would attend [School District] Elementary.^[2] Although [The Child] has gymnastics every week, Father has only attended ten practices in the last year.

Father has also exhibited some reluctance^[3] to financially support the minor child. In fact, he stopped paying the full amount of child support after he filed his Motion to Modify, paying only $325.00 in the last three months. Despite her requests in the past, he has not contributed to any uninsured medical expenses^[4] and in the past year has paid only $200.00 for the charges for gymnastics. Given the testimony as a whole, the Court suspects there is a strong financial motivation for Father’s requests regarding custody and parenting time.

Given Father’s enlistment and the fact that he resided in Idaho from the time [The Child] was two until she was seven, he participated very little in her day to day care. Mother has borne that responsibility and without question is more than willing to sacrifice to see to it that [The Child]’s needs are met. Mother resides with maternal grandmother and her significant other. She is on the lease for the home in which they reside. They have lived there for three years. Mother has taken a job working nights from midnight until 8:30 in the morning so she is able to homeschool [The Child] after work each day. She generally sleeps from 4:30 p.m. until 11:00 p.m. but awakens two to three times each week to tuck [The Child] in. Interestingly, she testified that Father had never asked to just have [The Child] in the evenings while Mother is sleeping.

FACTOR 3
THE INTERACTION AND INTERRELATIONSHIP OF THE CHILD WITH PARENTS, SIBLINGS, AND ANY OTHER PERSON WHO MAY SIGNIFICANTLY AFFECT THE CHILD’S BEST INTERESTS.

Significantly, Mother testified that [The Child] has not had a strong parent child bond with Father. To her credit, however, she believes that it is important for [The Child] to have parenting time with Father and has voluntarily expanded Father’s contact since his move to Missouri. Likewise, she initiated and continued weekend contact between [The Child] and paternal grandmother after moving to Missouri.^[5] [The Child] has a good relationship with her grandparents on both sides.

Father has exercised poor judgment in discussing this litigation with the minor child. Father openly admitted that he told [The Child] that they were “coming to Court to talk about custody.”

FACTOR 4
WHICH PARENT IS MORE LIKELY TO ALLOW THE CHILD FREQUENT, CONTINUING, AND MEANINGFUL CONTACT WITH THE OTHER PARENT.

Clearly, Mother is more than willing to allow the child frequent, continuing, and meaningful contact with Father and has done so quite voluntarily even though the child had not developed a strong bond with Father. Also, as previously mentioned, Mother has been willing to allow contact with Father’s family as well. Mother did testify that communication between her and Father is somewhat strained and she believes they have a lot of communication issues.

FACTOR 5
THE CHILD’S ADJUSTMENT TO HOME, SCHOOL AND COMMUNITY.

[The Child] has been homeschooled for the past three years. Mother joined a co-op in which she and [The Child] are involved. It is a Facebook group and was comprised of all mothers until Father insisted that he be allowed to join and was allowed to do so.^[12] [The Child] is learning to play the guitar and participates regularly in gymnastics. There is no evidence indicating that she is not well adjusted in Mother’s home.

FACTOR 6
THE MENTAL AND PHYSICAL HEALTH OF ALL INDIVIDUALS INVOLVED, INCLUDING ANY HISTORY OF ABUSE OF ANY INDIVIDUALS INVOLVED.

Both Mother and paternal grandmother expressed some concern that [The Child] may suffer from dyslexia. Although Mother has investigated testing, the testing cannot be done until she is nine years old. This factor has no bearing on the Court’s custody determination.

FACTOR 7
THE INTENTION OF EITHER PARENT TO RELOCATE THE PRINCIPAL RESIDENCE OF THE CHILD.

There was evidence adduced that Mother has indicated to Father that she might relocate to further her education. The Court finds, however, that neither party has a present intent to relocate the principle residence of the child.

FACTOR 8
THE WISHES OF THE CHILD AS TO THEIR CUSTODIAN.

Father indicated that when he told [The Child] they were coming before the Court to discuss custody, she told him that she wanted “equal time”. Mother stated that [The Child] had also told her that she wanted to spend more time with Father. The Court gives this factor little weight given the age of the child and the fact that children of this age frequently express their desires in this regard for reasons other than their own best interests.

CONCLUSIONS

20. Pursuant to the public policy of this State, the Court does find that frequent, continuing and meaningful contact by the child with both parents is in the best interest of the child. No circumstances exist in this case which would cause the Court to conclude otherwise. Further, in its recommended judgment herein below this Court intends to encourage the parents to participate in decisions affecting the health, education and welfare of their child, and to resolve disputes involving their child amicably through alternative dispute resolution. In recognizing these State policies and to effectuate same, this Court has attempted to determine the custody arrangement which will best assure both parents participate in such decisions and have frequent, continuing and meaningful contact with their child so long as it is in the best interest of the child.
21. While the evidence presented to the Court warrants a change in the existing Parenting Plan, it does not warrant a change in the joint legal and joint physical custody arrangement currently in place. The Court first considered an award of joint physical custody and joint legal custody to both parents. Despite their communication issues, the parties both agree that the current joint legal and joint physical custody arrangement should be continued. The Court has considered other combinations of legal custody and physical custody and has determined that an award of joint legal custody and joint physical custody to Mother and Father is necessary to serve the best interest of the minor child. The Court further concludes that Father’s request to change [The Child]’s residential address to his home is not in [The Child]’s best interest. The Court finds that the child’s address for mailing and educational purposes should continue to be Mother’s address.
22. Father devoted considerable time to airing his grievances about the minor child being homeschooled.^[8] The fact remains that [The Child] has been homeschooled for the past three years. The Court finds Mother’s testimony credible but Father never complained or inquired about homeschool until after he had moved to Missouri a year ago. Further, he has not asked for a status report or grades indicating her performance. Although Mother feels that the one on one education provided by the homeschooling is best for [The Child] right now, she testified that she would be willing to discuss the prospect of public school with Father. The Court has determined that it is appropriate to enter an order that Mother will continue to homeschool [The Child] unless both parents agree that she will be enrolled in public school.^[9]
23. Relying on Factors Two, Four, Five and Eight, the Court finds that the Court ordered Parenting Plan, attached hereto as “Court’s Exhibit A” and incorporated herein as if set forth in haec verba, is in the best interest of the minor child. It allows for [The Child] to continue to reside with Mother, but expands Father’s parenting time given his fairly recent move to Missouri. It provides for parenting time for Father every other weekend and one overnight period every Tuesday. The Parenting Plan also provides for each party to have two full weeks of parenting time each summer.

CHILD SUPPORT MODIFICATION

24. Both parties submitted Form 14 calculations. The Court rejects Father’s proposed Form 14 calculation because it inappropriately designates him as the parent receiving support. The Court rejects Mother’s proposed Form 14 calculation as it inaccurately states the parties’ incomes.
25. The Court received no evidence of the actual income of the parties at the time the existing support order was entered. However, the underlying Judgment allocates uninsured and extraordinary expenses with Father bearing 70 percent of those costs. This indicates that Father made significantly more money than Mother at the time of the existing support order.
26. At the present time, Father is attending school utilizing his benefits under the GI Bill. Father claims to be attending school and working only sporadically as a process server. He receives a stipend of $708.00 each month, although he testified that he would receive $944.00 if he was attending school full time.^[6] He claims to make only $75.00 each week as a process server. Although the Court has no reason to believe that Father could not work full time, the Court received no significant evidence upon which to determine an appropriate wage to impute to him other than minimum wage. Thus, the Court uses $1,361.00 per month as Father’s current income.
27. Mother testified that she makes approximately $3,000.00 per month, a fact verified by her 2017 tax return. She incurs insurance costs for the minor child of $82.00 per month.
28. The Court ultimately concludes that there has been a continuing and substantial change in the circumstances of the parties making the original support order unreasonable. These substantial and continuing changes in the circumstances of the parties is, among other things, the change in the monthly income of the parties.
29. The Court has calculated is own Form 14 and it is attached hereto as “Court’s Exhibit B.” The presumed amount of child support is $142.00.
30. Upon consideration of all of the factors set out in §452.355 RSMo., each party shall pay their own attorney fees.

RECOMMENDATION

Having considered all of the above in addition to all other relevant evidence, the Court recommends that judgment be entered as set forth below.

JUDGMENT OF MODIFICATION

IT IS THEREFORE ORDERED, AJUDGED AND DECREED THAT:

1. The Parenting Plan ordered in the Stipulated Judgement and Decree of Divorce in this cause is ordered modified pursuant to the attached Parenting Plan. By the terms of said plan, the parties shall continue to share joint legal and joint physical custody of the minor child, the child’s residence for mailing and educational purposes shall be with Mother, and the minor child shall be in the physical care and custody of Mother at all times except for the schedule of parenting time ordered for Father and any other times which are agreed to by the parties.
2. The minor child shall be homeschooled by Mother unless both parties agree to an alternative educational arrangement.
3. Petitioner [Petitioner] shall pay child support to Respondent [Respondent] in the amount of $142.00 per month beginning on July 1, 2018. All payments shall be made through the Family Support Payment Center, [Address].
4. The original Judgment shall remain in full force and effect except as specifically modified herein.
5. Absent exigent circumstances as determined by a Court with jurisdiction, you, as a party to this action, are ordered to notify, in writing by certified mail, return receipt requested, and at least sixty days prior to the proposed relocation, each party to this action of any proposed relocation of the principal residence of the child, including the following information
   1. The intended new residence, including the specific address and mailing address, if known, and if not known, the city;
   2. The home telephone number of the new residence, if known;
   3. The date of the intended move or proposed relocation;
   4. A brief statement of the specific reasons for the proposed relocation of the child; and
   5. A proposal for a revised schedule of custody or visitation with the child.
   Your obligation to provide this information to each party continues as long as you or any other party by virtue of this order is entitled to custody of the child covered by this order. Your failure to obey the order of this court regarding the proposed relocation may result in further litigation to enforce such order, including contempt of court. In addition, your failure to notify a party of a relocation of the child may be considered in a proceeding to modify custody or visitation with the child. Reasonable costs and attorney fees may be assessed against you if you fail to give the required notice.
6. In the event of noncompliance with this order, the aggrieved party may file a verified motion for contempt. If custody, visitation, or third-party custody is denied or interfered with by a parent or third party without good cause, the aggrieved person may file a family access motion with the court stating the specific facts that constitute a violation of the custody provisions of the judgment of dissolution, legal separation, or judgment of paternity. The circuit clerk will provide the aggrieved party with an explanation of procedures for filing a family access motion and a simple form for use in filing the family access motion. A family access motion does not require the assistance of legal counsel to prepare and file.
7. The parties shall pay their own attorney fees.
8. Costs are taxed to the party incurring them.
9. Any relief which is not otherwise granted is deemed denied.

All court exhibits are incorporated by reference herein. It is recommended that a judgment be entered as set forth above.
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