Opinion
No. ED 99788.
2014-07-7
J.T.P., Petitioner/Appellant, v. P.F., Respondent/Cross–Appellant.
Lawrence G. Gillespie, St. Louis, MO, for appellant.Jack J. Cavanagh, St. Louis, MO, for respondent.
Reversed.
Lawrence G. Gillespie, St. Louis, MO, for appellant. Jack J. Cavanagh, St. Louis, MO, for respondent.
CLIFFORD H. AHRENS, Judge.
J.T.P. (Father) and P.F. (Mother) appeal the trial court's judgment modifying the residential custody schedule for their son, K.R.P. (Son). We reverse.
Guided by the clear edicts of Russell and Clayton, we must conclude that the trial court erred by applying the visitation statute (§ 452.400). Rather, the significant change in the parties' residential custody schedule is subject to the standards of § 452.410.1, and those standards are not satisfied here. According to the trial court's own findings, there had been no change in circumstances since the original custody decree. “If the trial court does not find a substantial change of circumstances, it never reaches the best interests issue.” Hall v. Hall, 345 S.W.3d 291, 296 (Mo.App.S.D.2011).
Even had the trial court found a change in circumstances and thus properly reached the best interests issue, its finding that such a drastic change in the residential schedule was in Son's best interest is not supported by the evidence and is against the weight of the evidence (Mother's third point). We are mindful that our standard of review requires great deference to the trial court in determining a child's best interests. Noland–Vance v. Vance, 321 S.W.3d 398, 403 (Mo.App.S.D.2010) (greater deference given in custody determinations than in other cases). Our role is to determine whether the record contains sufficient evidence to support the trial court's assessment, accepting all evidence and inferences favorable to the judgment. H.J.I. by J.M.I. v. M.E.C., 961 S.W.2d 108, 115 (Mo.App.W.D.1998). We will not reverse the trial court's judgment unless we are left with the firm belief that the trial court was wrong. Id. at 116. Alas, we hold that belief here.
The trial court's sole justification for the upheaval in Son's routine was, as the court phrased it, “to allow Father the opportunity to provide that [academic] support on a consistent basis throughout the child's academic year.” (emphasis added) We are troubled that the trial court framed the issue in terms of Father's opportunity rather than Son's need. Moreover, neither of the experts, nor the GAL, opined that Son's academic support at Mother's house was deficient, or that Father's support was superior, or that such a consideration supersedes other aspects of parenting. Academic prowess is not universal among good parents. As Dr. Rosen explained, a parent's ability to teach a child academic subject matter is less important than the parent's engagement in the child's education ( e.g., ensuring attendance, setting expectations, enforcing study time). Additionally, Rosen cautioned against unnecessary changes in a child's routine and, importantly, the GAL clearly opposed any change in the existing residential schedule. GAL Tillman testified as follows:
So from what I can see ... I don't see that a change at this point would be in the child's best interests. I think it'd be in the child's best interest to remain at the schedule he has.... If the court is going to consider giving father additional time and moving school districts for the child, I think that's a pretty substantial change, and we don't have any ... evidence that I've seen to show that (a) the child needs that extra educational attention or that (b) such a change would help him flourish in any way. The child seems to be doing quite fine in school at this point.
While generally the trial court is free to assign weight to the evidence and credibility to the witnesses as it deems proper, here the court's best interest finding is not supported by any substantial evidence and is against the weight of the evidence. Mother's points I and III are granted. We need not reach her remaining points. GAL Fees
Father asserts that the trial court abused its discretion by ordering him to pay the entirety of GAL fees. In support of his position, Father argues that the parties' respective incomes are similar, so the GAL fees should be shared equally. This argument is simply inadequate to overcome our standard of review. “A reviewing court should not disturb the trial court's award of guardian ad litem fees absent an abuse of discretion.” S.I.E. v. J.M., 199 S.W.3d 808, 822 (Mo.App.S.D.2006). “An abuse of discretion is committed if the trial court's decision defies logic under the circumstances, is sufficiently arbitrary and unreasonable to shock the conscience of the court, and exhibits a dearth of careful consideration.” Id.
Here, the trial court appointed the GAL upon Father's motion alleging that Mother was neglectful and uncooperative and was attempting to alienate Father from Son. While we do not question Father's good faith, ultimately those allegations would prove unsubstantiated at trial. Neither expert expressed any concern about Mother's fitness as a parent. GAL Tillman testified that son was very happy and well bonded to both parents. “When ordering the payment of guardian ad litem fees, the court may consider the circumstances which necessitated the appointment.” Noland–Vance, 321 S.W.3d at 426 (assessing GAL fees to parent who made unsubstantiated allegations of abuse and neglect). The trial court's assessment of GAL fees to Father was not arbitrary or unreasonable and does not shock the conscience of this court. Point denied.
Result
The trial court's judgment is reversed.