            In the Missouri Court of Appeals
                    Eastern District
                                       DIVISION ONE

R.S.,                                      )      No. ED101391
                                           )
        Respondent,                        )
                                           )      Appeal from the Circuit Court
v.                                         )      of St. Louis County
                                           )
J.S.,                                      )      Hon. John R. Essner
                                           )
        Appellant.                         )      FILED:    March 10, 2015

                                          OPINION

        J.S. (Mother) appeals the trial court’s judgment denying her motion to modify physical

and legal custody of the son she shares with R.S. (Father). We affirm in part and reverse and

remand in part.

                                         Background

        Mother and Father married in 1999, had a son (Son) in 2002, separated in 2006, and

divorced in January 2009. The trial court awarded them joint physical custody of Son, and

Father was designated as the residential parent for educational purposes. The custody schedule

provided that Mother had custody on alternating weekends and every Wednesday night. Father

was awarded sole legal custody. The court’s custody determinations were influenced by its

concerns about Mother’s mental health and history of substance abuse as well as the parties’

inability to communicate effectively. Since that time, however, Mother has participated in

therapy and maintained sobriety, and the parties have succeeded in communicating and
cooperating as parents. In light of these developments, in late 2012 Mother filed the present

motion to modify, seeking joint legal custody and an increase in residential custodial time. In

support of her motion, Mother cited the following changed circumstances: Mother had remarried

and Son now has two half-siblings; Son was diagnosed with learning disabilities; Mother had

reduced her work schedule to accommodate parenting responsibilities; and the parties had

achieved a collaborative parenting partnership.

        After a three-day hearing during which voluminous evidence was adduced, the trial court

denied Mother’s motion, reasoning that the foregoing circumstances did not necessitate

modification in order to serve Son’s best interests. Mother asserts three points on appeal: (1) that

the trial court misapplied the modification statute by scrutinizing the necessity of modification,

(2) that modification of the residential schedule is in Son’s best interests, and (3) that, on this

record and the court’s own findings, Missouri law prescribes joint legal custody.

                                       Standard of Review

        On appeal, the trial court’s judgment will be affirmed 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. Jansen v. Westrich, 95 S.W.3d 214, 217-18 (Mo. App. 2003), citing Murphy v.

Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Additional principles are set forth below as

relevant to the issues.

                                            Discussion

        Section 452.410.1 governs custody modifications and states that the court shall not

modify a prior custody decree unless “a change has occurred in the circumstances of the child or

his custodian and … modification is necessary to serve the best interests of the child.”




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       Physical Custody (Points I & II)

       For her first point, Mother contends that the trial court misapplied §452.410.1 by

requiring that circumstances render modification necessary to serve Son’s best interests. Mother

impugns the court’s emphasis on necessity and cites myriad appellate cases omitting the term

from the articulated standard and instead requiring only that modification is in the child’s best

interests.1 Mother argues simultaneously that necessity is too high a standard, as applied by the

trial court, but also that it is superfluous, because any modification in the child’s best interests is

by definition necessary to serve those interests. But this court cannot entertain Mother’s exercise

in statutory interpretation. Where legislative intent is evident by giving the language employed in

the statute its plain and ordinary meaning, we are without authority to read into the statute a

contrary intent. Baxley v. Jarred, 91 S.W.3d 192, 196 (Mo. App. W.D. 2002). Only when a

statute is ambiguous can this court engage in statutory interpretation. Id. The language of

§452.410.1 is not ambiguous. Moreover, even accepting Mother’s contention that “necessary” is

redundant, her argument still rests on the underlying premise that modification of the residential

schedule is in Son’s best interest (as more directly asserted in her second point), but the trial

court did not agree.

       On the issue of Son’s best interests, though neither Son’s therapist nor the guardian ad

litem objected to a minor adjustment in the residential schedule, they also testified that Son was

thriving under the existing parenting plan. The court assigned considerable value to continued

stability, with adolescence and high school approaching, and therefore concluded that

modification was imprudent. The record supports the court’s determination, and consequently


1
 See for example, Beshers v. Beshers, 433 S.W.3d 498, 505 (Mo. App. S.D. 2014); Querry v. Querry,
382 S.W.3d 922, 927 (Mo. App. W.D. 2012); Aubuchon v. Hale, 384 S.W.3d 217, 220 (Mo. App. E.D.
2012); Hendry v. Osia, 337 S.W.3d 759, 763 (Mo. App. E.D. 2011); and Hall v. Hall, 345 S.W.3d 291,
295 (Mo. Ap. S.D. 2011).


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our standard of review defeats Mother’s second point. We give 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) (observing that greater deference is 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). Where there is conflicting

evidence, we defer to the trial court and will affirm the trial court’s judgment even if there is

evidence to support a different conclusion. In re C.H., 412 S.W.3d 375, 382 (Mo. App. E.D.

2013). We will not reverse the trial court’s judgment unless we are left with the firm belief that

the trial court was wrong. H.J.I. by J.M.I., 961 S.W.2d at 116. Thus, while the record confirms

that Mother is a capable and loving parent, it also precludes reversal by this court.

       The trial court did not err or abuse its discretion in denying Mother’s motion to modify

physical custody. Points I and II are denied.

       Legal Custody (Point III)

       Mother also challenges the trial court’s judgment denying modification of Father’s sole

legal custody. Missouri public policy encourages parents to share decisions affecting the health,

education, and welfare of their children. §452.375.4. In furtherance of that policy, courts “shall

determine the custody arrangement which will best assure both parents participate in such

decisions … so long as it is in the best interests of the child.” Id. “To the extent that there is a

preference in favor of joint legal custody, it only applies when both parents are willing and able

to share the rights and responsibilities related to raising their children.” Dunkle v. Dunkle, 158

S.W.3d 823, 839 (Mo. App. E.D. 2005). “There is no preference for joint custody unless, in the

given circumstances, it is in the best interests of the child. “[I]n deciding whether joint legal




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custody is in the children's best interests, two particularly important considerations for the trial

court are whether the parents share ‘a commonality of beliefs concerning parental decisions’ and

whether they have the ‘ability to function as a parental unit in making those decisions.’” Id.

quoting In re Marriage of M.A., 149 S.W.3d 562,569 (Mo. App. E.D. 2004). The trial court’s

judgment on these questions states as follows:

       The evidence in this modification proceeding clearly established that the ability of
       the parents to function effectively in making legal custody decisions for the
       benefit of their child has improved dramatically since the time of the original
       dissolution hearing. … The law of the State of Missouri prefers joint legal custody
       as the best way to ensure that both parents are actively involved in the upbringing
       of their child. Since the time of the original judgment, there has been a change of
       circumstances as to the child in that he can now benefit by his parents ability to
       communicate effectively so as to being coequal custodians of his best interests.
       The full participation of both of his parents in making future legal custody
       decisions about such issues as his treatment and his future education is necessary
       to his well-being.

(emphasis added) The foregoing language leaves no doubt that the trial court found the parents’

joint decision-making capacity necessary to advance Son’s best interests. Yet, in the court’s

subsequent and final statement on the matter, it deviates:

       It is important that the parents not focus on the labels of “joint” or “sole” but that
       they continue to focus on their shared love for their son despite whatever
       differences they may have between them.

       By dismissing the matter in this fashion, the trial court departs from Missouri law and the

court’s own findings, subjugates the paramount concern of Son’s best interests, and diminishes

Mother’s standing as an equal parent. Mother’s point III is granted.

                                           Conclusion

       On the question of physical custody, the trial court did not err in its application of

§452.410 and did not abuse its discretion in finding that modification was not necessary to serve




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Son’s best interests. The court’s judgment denying Mother’s motion to modify the residential

schedule is affirmed.

       On the question of legal custody, however, the trial court’s judgment does not comport

with Missouri law or the court’s own findings as to Son’s best interests. Therefore, the trial

court’s judgment as to legal custody is reversed, and the case is remanded for entry of a

judgment consistent with the trial court’s findings and this opinion.



                                      __________________________________
                                      CLIFFORD H. AHRENS, Judge

Lawrence E. Mooney, P.J., concurs.
Lisa Van Amburg, J., concurs.




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