                     In the Missouri Court of Appeals
                             Eastern District
                                        DIVISION TWO

DUSTYN TIENTER,                                   )       No. ED101752
                                                  )
       Respondent,                                )       Appeal from the Circuit Court
                                                  )       of Lincoln County
       vs.                                        )
                                                  )
ANGELA (RUE) TIENTER,                             )       Honorable David Craig Mobley
                                                  )
       Appellant.                                 )       Filed: February 23, 2016

                                      INTRODUCTION

       Angela (Rue) Tienter (“Mother”) appeals the trial court’s judgment denying her motion

to modify the 2007 judgment and decree of dissolution of marriage between Mother and Dustyn

Tienter (“Father”). In her motion to modify, Mother sought sole legal custody and joint physical

custody of the children, D.T. and L.T. She also requested the court award Father visitation and

order him to pay reasonable child support. The court found there had not been a substantial

change in circumstances warranting modification. On appeal, Mother alleges the trial court erred:

(1) in denying her motion to modify legal and physical custody; (2) in failing to modify the

visitation schedule; and (3) in failing to award Mother child support in the event she should have

been awarded physical custody. We reverse the judgment and remand the case to the trial court.1


1
  Only Mother filed a brief in this matter. Although there is no penalty for failure to file a brief,
this court must adjudicate Mother's claim without the benefit of whatever argument, if any,
Respondent Father could have made in response. Risch v. Risch, 72 S.W.3d 274, 276 (Mo. App.
S.D. 2002).
                                                 1
                   I.      FACTUAL AND PROCEDURAL BACKGROUND

       Mother and Father were married in 2000. During the marriage, they had two children, a

son, D.T., and a daughter, L.T. ("the children"). D.T. was born in 2000 and L.T. was born in

2002. In April 2007, the trial court entered a judgment dissolving the parties’ marriage. The

dissolution judgment awarded the parties joint legal custody of the children, awarded Father sole

physical custody of the children, and awarded Mother visitation. Mother had the children every

other weekend during the school year. A different visitation schedule was set forth for the

summer months, giving Mother more time with the children. Neither party was ordered to pay

child support.

       In 2013, Mother filed a motion to modify custody and support. Mother claimed there had

been a substantial change in circumstances warranting a modification of the original custody

arrangement. In her motion, Mother sought sole legal and joint physical custody of the children,

with visitation awarded to Father every other weekend and overnight on Wednesday and

Thursday on the weeks when Father did not have the weekend overnight. Mother also asked the

court to order Father to pay her reasonable child support.

       In January 2014, the trial court held a hearing on Mother’s motion to modify. The court

heard testimony from Mother, Father’s parents−Fran and John Tienter (“Grandparents”), Father

and his new wife, Evelyn Tienter (“Evelyn”).2 In addition, the court interviewed L.T. and D.T.

in camera. The following evidence was presented at the hearing.

                                A. Father’s Job and Marital Changes

       Father was employed with the police department; his schedule required him to work

shifts from noon until midnight. After the parties’ 2007 dissolution, Father obtained a second

2
 Throughout the opinion, we refer to Evelyn Tienter by her first name. We intend no disrespect,
but omit her last name simply to facilitate the reading and understanding of the opinion.
                                                 2
job and he worked significant overtime hours each month at the police department. As a result of

Father’s work schedule, the children spent three to four nights a week with their paternal

Grandparents.

       After Father began dating and living with Evelyn, the children began spending more time

at Father and Evelyn’s home. Evelyn also worked two jobs−a full-time position and a part-time

position in the evening. Therefore, the children at times were under the supervision of Evelyn’s

teenage son. After living together for a few years, Father and Evelyn married in 2013.

                              B. The Children’s Relationship with Evelyn

       Mother and Grandparents testified that they had concerns Evelyn was mistreating the

children. Mother stated that L.T. became upset and cried when Mother dropped her off at Father

and Evelyn’s home. Both Grandparents also noted the children became upset when they had to

go to Father’s home. In addition, Grandmother reported seeing bruising on L.T.’s arm when she

was 8; Grandmother stated L.T. indicated Evelyn had punched her. Grandfather testified that he

felt the situation in Father’s home was causing the children to be depressed. He confirmed he

saw bruising on L.T.’s arm.

       Additionally, Grandfather recounted that L.T. told him about an incident where Evelyn

tried to put an earring in L.T.’s ear and smothered L.T.’s face in a pillow while L.T. screamed.

The incident was witnessed by D.T. Father testified he was called home from work after the

incident happened and saw scratches on Evelyn. Neither Father nor Evelyn denied the incident

occurred. Rather, Evelyn testified that she “ended up on top” of L.T. L.T. reported she was

“freaking out” and the incident made her uncomfortable because she was afraid it would happen

again, except “without an earring.”




                                               3
       L.T., Father and Evelyn all testified L.T. had been disciplined in Father’s home in various

ways: by Evelyn spanking her, by having her door removed from the hinges, by having her

books taken away, and by having to clean tile with a toothbrush. Father could not recall what

L.T. did to warrant being punished. He maintained, however, that the discipline was appropriate.

       Grandparents approached their son regarding the children’s relationship with Evelyn.

Grandparents testified that when things did not improve, they discussed the situation with

Mother, who then contacted Father after speaking with L.T. and D.T. Mother indicated she

hotlined the alleged abuse, but after a home visit the allegations were found to be

unsubstantiated. L.T. and D.T. wrote Father a letter explaining they did not want to be alone

with Evelyn. Evelyn found the letter and told Father about it.

                            C. The Children’s Hygiene and Medical Care

       Evidence was presented regarding the children’s hygiene and medical care. Grandparents

claimed L.T. and D.T. were going to school in dirty clothing. Moreover, L.T., who is four years

younger than her stepbrother, wore his clothing to school one day. Father admitted the children

had gone to school several times wearing the clothes that they slept in. In addition, Grandparents

and Mother claimed that they noticed the children were not showering regularly. Grandparents

purchased shampoo, conditioner, deodorant, toothbrushes, and toothpaste for the children to use.

Father acknowledged his parents had bought these items, but he stated that supplies were

available at home. Father also stated he was aware D.T. had been counseled by the school nurse

regarding his hygiene and body odor. Both Father and Evelyn acknowledged D.T.’s clothes had

been soiled by animal feces; seven cats and two dogs lived in their home.

       In relation to their medical care, Father acknowledged he had not taken the children to the

dentist since the divorce in 2007. Father explained he felt the children’s school would have



                                                4
notified him if there was a need for dental care. Father also testified that the school informed

him L.T. and D.T. needed glasses, but he did not take them to the eye doctor. Instead, Mother

helped the children obtain their glasses.    Father further acknowledged L.T. had been sent to

school several times without her glasses and that D.T had worn broken glasses for two weeks

during the time of Father’s wedding.

       In addition to providing for the children’s routine dental and eye care, Mother testified

she took D.T. to a podiatrist because he had been suffering from a painful, ingrown toenail.

Father conceded D.T.’s condition was ongoing and Father had not sought medical care to treat it.

Father testified that he flushed the pain medicine prescribed to treat D.T.’s condition down the

toilet because it was not contained in the prescription bottle. Also, Father admitted D.T. had

struggled with acne for over a year. Father testified he did not take D.T. to a dermatologist, but

instead treated his acne with over-the-counter remedies. Evelyn added that D.T.’s acne problem

had persisted for over three years and was not getting any better.

       During 2013, L.T. had experienced stomach pain, nausea, and weight loss. Mother took

her to a physician who prescribed medication for L.T. Father explained he did not take L.T. to a

doctor for her symptoms as he did not feel her weight loss was significant.

                                       D. Custody of the Children

       When the court interviewed the children in camera, L.T. and D.T. indicated they wanted

to live with Mother. Both children claimed the situation had improved at Father’s home. D.T.

clarified things had only gotten better, though, since Mother had sought the modification. While

L.T. stated she had worked past issues and felt “safe” at Father’s home, she also testified she was

“on edge” and felt a false sense of security there, like something could happen to her “at any

minute.” With regard to interacting with Evelyn, L.T. acknowledged she had probably done



                                                 5
some “stupid things.” When asked his opinion on custody, Father stated he did not see any

reason why the court should change things, but he also testified he felt the most important

consideration in determining custody should be the children’s wishes.

                                E. Trial Court’s Judgment and Appeal

       Following the hearing, the court entered its judgment denying Mother’s motion to modify

custody and support. The court stated it considered the testimony of each witness and “accepted

some of the testimony of the witnesses as creditable and rejected other parts of the testimony as

not creditable.” However, the court did not specifically reference any testimony or evidence

presented at trial. Instead, the court generally noted that its judgment was “consistent with the

Court’s determination of the creditability [sic] of the evidence and of the witnesses.” The court

then concluded there had not been a substantial change in circumstances warranting a

modification of the 2007 judgment of dissolution. Thus, the court did not modify the visitation

schedule or award Mother child support.

       Mother filed a motion to amend the judgment or, alternatively, for a new trial. She

argued the court’s finding that there was no substantial change in circumstances was against the

weight of the evidence and not supported by credible evidence. Pursuant to Rule 78.06,3 the

motion was overruled by operation of law when the court did not rule on it within 90 days after it

was filed. Mother appeals.4




3
 All rule references are to Missouri Court Rules (2014). Rule 78.06 provides: Any motion for
new trial, motion to amend the judgment or opinion, or motion for judgment notwithstanding the
verdict is overruled for all purposes if the trial court does not rule on it within ninety days after
the date the last such timely motion is filed.
4
 Father filed with this court a motion to remand the cause to the trial court for further findings
and orders.
                                                 6
                                   II.     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. S.D. 2003) (citing

Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)). "We will not reverse the trial court's

judgment on the basis that it is against the weight of the evidence unless we have a firm basis for

concluding that the judgment is wrong or that it is against the logic of the circumstances."

Clayton v. Sarratt, 387 S.W.3d 439, 444 (Mo. App. W.D. 2013) (internal quotation omitted).

"When there is conflicting evidence, the trial court has the discretion to determine the credibility

of witnesses, accepting all, part, or none of the testimony it hears." McCreary v. McCreary, 954

S.W.2d 433, 439 (Mo. App. W.D. 1997) (internal quotation omitted).

                                          III.    DISCUSSION

                                         A. Father’s Motion to Remand

          Before considering the merits of Mother’s claims of error on appeal, we will address

Father’s motion to remand for further findings and orders. Father asks this Court to remand the

cause to the trial court to set out the required basis for its findings. Father did not file a

respondent’s brief; instead, he filed a “reply to appellant’s brief” in which he reiterated his

allegation that the judgment lacked the required details and again requested remand. Father

alleges that the judgment’s failure to set out findings does not properly comport with case law,

and Mo. Rev. Stat. § 452.375.6 and § 452.375.2.5

          First, we note that Father did not properly preserve his claim that the trial court failed to

make the required findings by raising it in a motion to amend the judgment pursuant to Rule



5
    All statutory references are to RSMo 2000 as supplemented, unless otherwise indicated.
                                                    7
78.07(c).6 See Cule v. Cule, 457 S.W.3d 858, 863 (Mo. App. E.D. 2015) (Wife waived for

appellate review her challenge to trial court's alleged failure to make statutorily-mandated

findings regarding the best interests of the children, where wife failed to address the issue in her

motion to amend the judgment). Nevertheless, we will address Father’s motion in order to

clarify certain statutory requirements related to the modification of custody.

       Here, the court found there was no substantial change in circumstances. To determine

whether a modification of custody is warranted, a trial court is required to find a change in

circumstances pursuant to § 452.410.1. The finding of a change in circumstances is a threshold

matter; if the trial court finds that a change of circumstances has occurred, then the court must

take the additional step of determining whether a modification to the prior decree is in the child’s

best interests. Prach v. Westberg, 455 S.W.3d 513, 517 (Mo. App. W.D. 2015). In considering

whether a modification of custody is in a child’s best interests, the court is guided by § 452.375.

       Secondly, Father alleges that pursuant to § 452.375.2 and § 452.375.6, the trial court was

required to issue written findings setting forth a detailed basis for its judgment. Section

452.375.6 provides that if the parties have not agreed to a custodial arrangement, then the court

shall include written findings in the judgment based on each of the factors listed in § 452.375.2.

M.P.P. v. R.R.E., 456 S.W.3d 69, 71 (Mo. App. E.D. 2015). However, these factors relate to a

determination of whether custody is in the best interests of the child and not to the threshold

issue of whether there was a change in circumstances warranting modification of custody. See

Parker v. Parker, 66 S.W.3d 778, 787 (Mo. App. W.D. 2002). Because the court found no

substantial change in circumstances, the additional step of considering whether the proposed



6
 Nor does Father allege that either party requested the court make findings pursuant to Rule
73.01(c).


                                                 8
modifications were in the best interests of the children, according to the factors listed in §

452.375.2., was not required.

       Likewise, § 452.410.1 does not require written findings when determining the threshold

issue of whether modification is warranted due to a change in circumstances. § 452.410.1; See

Wood v. Wood, 391 S.W.3d 41, 46 (Mo. App. W.D. 2012) (“Although Section 452.410.0

required the court to find a change of circumstances before it could modify the parties’ parenting

time, the statute did not require the court to make written findings identifying the facts that

constituted the change of circumstances.”).

       Finally, in his motion, Father argues the judgment does not comport with case law.

Father cites to the following three cases in support of his argument: M.P.P v. R.R.E, 456 S.W.3d

69 (Mo. App. E.D. 2015); Jett v. Jett, 468 S.W.3d 382 (Mo. App. S.D. 2015); and Buchanan v.

Buchanan, 167 S.W.3d 698 (Mo. banc 2005). These cases are not instructive. All three involve

the appeal from an original custody decree where the court was required to determine the best

interests of the child and set forth written findings based on the factors listed in § 452.375.2.

These cases do not involve a modification of custody. Here, in contrast, the issue involves a

motion to modify the court’s prior custody decree where the parties agreed to the custodial

arrangement. Thus, even assuming, arguendo, that Father had preserved his claim, we find no

merit in his assertions and deny his motion to remand.

                                 B. Substantial Changed Circumstances

       Here, Mother argues three points of error on appeal. We do not address Points II and III

as Point I is dispositive. In Point I, Mother asserts the trial court erred in denying her motion to

modify legal and physical custody. Specifically, Mother argues the court erred in finding there

had not been a substantial change in circumstances warranting a modification. Mother contends



                                                 9
she proved by competent evidence that there had been a substantial change in circumstances. In

other words, framed within our standard of review, Mother essentially argues the trial court’s

judgment was against the weight of the evidence. This Court must exercise extreme caution in

setting aside a judgment as against the weight of the evidence and will do so only upon a firm

belief that the judgment was wrong. See Scherder v. Sonntag, 450 S.W.3d 856, 860 (Mo. App.

E.D. 2014). We hold that firm belief here.

       Section 452.410.1 provides the standard for modifying a prior custody decree. Section

452.410.1 states that a court shall not modify a prior custody decree unless it finds a change has

occurred in the circumstances of the child or her custodian and that modification is necessary to

serve the child's best interests. § 452.410.1. Thus, finding a change in circumstances is a

threshold matter. Moreover, the type of custody modification requested determines the nature of

the change in circumstances required. If a movant seeks a drastic change in the custodial

arrangement, then a substantial change in circumstances is required. Russell v. Russell, 210

S.W.3d 191, 197 (Mo. banc 2007). See also Prach, 455 S.W.3d at 516 (“If a motion to modify

seeks to change the ‘custody’ of the children, for example, from joint legal or physical custody to

sole legal or physical custody or from sole custody in one parent to sole custody in the other

parent, the ‘change in circumstances’ must be substantial.”). In contrast, if a motion to modify

seeks only changes in terms related to the custody arrangement, such as a change in the parenting

time schedule, the plain language of the statute controls and the change in circumstances need

not be substantial. Prach, 455 S.W.3d at 516.

       Here, the 2007 dissolution decree granted the parties joint legal custody of the children

and awarded sole physical custody to Father. Mother now seeks sole legal and joint physical




                                                10
custody of the children. Thus, the modification sought by Mother was a drastic change that

required a finding of a substantial change in circumstances.

       Missouri appellate courts have considered several factors to determine whether a

substantial change in circumstances has occurred. Two factors relevant to this case are Father’s

change in employment and marital status. McIntosh v. McIntosh, 400 S.W.3d 860, 863 (Mo.

App. E.D. 2013) (Changes in employment and marital status are substantial changes that can

support modification of a child custody order). See, e.g., Wilson v. Wilson, 873 S.W.2d 667, 670

(Mo. App. E.D. 1994).

       Here, Father obtained a second job after the divorce, worked significant overtime hours at

the police department, and changed his marital status. It is uncontested that these changes

resulted in the children spending less time with Father and more time with Grandparents and

Evelyn. There was evidence from Mother, Grandparents and the children that L.T. and D.T. were

mistreated by Evelyn while in her care. Due to these circumstances, the children wrote Father a

letter indicating they did not want to be alone with Evelyn.

       Two other important factors considered in determining whether a substantial change in

circumstances has occurred are the disregard of a child’s hygiene needs and medical care.

Parker, 66 S.W.3d at 783-85. Mother and Grandparents testified that Father neglected the

children’s hygiene as the children wore inappropriate and dirty clothing to school and did not

shower regularly. Grandparents testified that they purchased toiletries for the children to use at

Father’s home.    Mother and Grandparents also testified that Father failed to address the

children’s medical needs. Father did not take the children to the eye doctor and had not taken the

children to the dentist since 2007. Father also failed to properly address other medical needs of

the children. Instead, Mother obtained medical treatment for L.T. and D.T.



                                                11
       We recognize that the trial court has the discretion to determine the credibility of

witnesses’ testimony, accepting all, part, or none of the evidence it hears. However, even if the

trial court found the conflicting testimony presented by Grandparents, Mother, and children not

credible, we still find the record provides overwhelming evidence of a substantial change in

circumstances. Father’s admissions alone conclusively establish a substantial change in

circumstances. Father is bound by his own testimony where it constitutes a judicial admission.

Dawson v. Dawson, 366 S.W.3d 107, 115 (Mo. App. W. D. 2012). A party’s testimony in court

may amount to a judicial admission if the party testifies unequivocally and understandingly to a

material fact within his own knowledge. Rodgers v. City of St. Louis, 688 S.W.2d 42, 43 (Mo.

App. E.D. 1985).

       Father testified unequivocally and understandingly to several material facts. Father stated

he took an additional job after the divorce and worked overtime. He acknowledged this resulted

in the children spending much less time with him and often being with Evelyn.                  He

acknowledged an incident where he had to leave work and come home because of an altercation

between L.T. and Evelyn−and that he saw scratches on Evelyn. Father confirmed L.T. was

disciplined in the following ways: by having her door removed from the hinges; by having her

books taken away; by having to clean tile with a toothbrush; and, by being spanked by Evelyn.

The evidence indicates Father’s additional employment and change in marital status impacted the

time Father spent with the children, and that the children’s relationship with Evelyn was

precarious at best.

       As to the neglect of the children’s hygiene needs, Father acknowledged the following:

that the children went to school in clothes they slept in; that L.T. had worn her 4-year-older




                                               12
stepbrother’s clothing to school; that D.T had animal feces on his clothing; and, that D.T. had

been counseled at school regarding his hygiene and body odor.

       Moreover, with respect to the children’s medical care, Father testified: that he had not

taken L.T. or D.T. to the dentist since the divorce; that he did not get glasses for the children

even after the school informed him that the children needed them; that L.T. went to school

several times without her glasses; that D.T. wore broken glasses for two weeks; that Father did

not obtain treatment for D.T.’s ingrown toenails or acne; that Father flushed D.T.’s medicine

down the toilet; and, that Father did not take L.T. to the doctor for her stomach problems and

weight loss. “A parent's failure to provide proper medical care can . . . equate to a change of

circumstances sufficient to justify custody modification.” Guier v. Guier, 918 S.W.2d 940, 948

(Mo. App. W.D. 1996).

       In some instances, Father placed little or no significance on the children’s medical needs.

Father offered excuses for his delays in obtaining treatment for the children. However, he

provided no evidence he properly cared for the children on other occasions and that the incidents

he testified about were just aberrations. We find that the evidence establishes the children’s

medical and hygiene needs were not being properly met by Father.

       Thus, the testimony adduced at the hearing establishes a substantial change in

circumstances. Even if no single factor discussed above would have alone established changed

circumstances, the combination of the factors clearly does. Johnson v. Johnson, 758 S.W.2d

721, 725 (Mo. App. W.D. 1988); In re Marriage of Scobee, 667 S.W.2d 467, 470 (Mo. App.

S.D. 1984) (a combination of individually insufficient factors may establish changed

circumstances).




                                               13
       Furthermore, in contrast to the substantial evidence presented of changed circumstances,

our review of the record reveals very little evidence in support of the trial court’s judgment. The

evidence in favor of the judgment is as follows: the children generally stated that things had

improved in Father’s home recently; some of L.T.’s testimony downplayed the difficulties that

arose between her and Evelyn; Father and Evelyn denied allegations that Evelyn mistreated the

children; Father and Evelyn maintained that L.T. had been disciplined appropriately; Mother’s

hotline allegation of abuse was deemed unsubstantiated; and, Father claimed toiletries were

available at his home to meet the children’s hygiene needs.

       We find this limited of evidence in favor of the judgment is not sufficiently probative

when considered in the context of the totality of the evidence presented, particularly Father’s

testimony. As a result, the trial court's finding of no change in circumstances was against the

weight of the evidence and against the logic of the circumstances.

       Although we find the threshold requirement of a substantial change in circumstances has

been met, in order to modify custody, the trial court must further determine whether modification

is in the children’s best interests. Here, the trial court did not make such a finding.7 Therefore,

we reverse and remand for a determination of whether a modification of custody is in the

children’s best interests and to set forth its specific findings in accordance with § 452.375.2.

Point I is granted. Because we remand, we need not address Points II and III, which seek




7
 We note that although the trial court found no substantial change of circumstances warranting
modification and denied Mother's motion on that basis, the court's written judgment contains an
additional finding, sans analysis, that it considered all relevant factors set forth in § 452.375.2.
As noted earlier these factors are used to determine whether a modification is in a child’s best
interest. While the court did note in a cursory fashion that it considered the factors, it did not
discuss the factors and failed to make an explicit finding as to whether modification was in the
children’s best interests.
                                                14
visitation for Father and child support for Mother in the event the custody arrangement is

modified.

                                        IV.    CONCLUSION

       The trial court's finding that there was no substantial change in circumstances warranting

modification is against the weight of the evidence. The judgment is reversed and remanded for

the trial court to determine whether modification is in children’s best interests.




                                                          _________________________________
                                                                      Angela T. Quigless, Judge

Philip M. Hess, P.J., and
Gary M. Gaertner, Jr., J., Concurs.




                                                 15
