              In the Missouri Court of Appeals
                      Eastern District
                                       DIVISION THREE

J.D.W., et al.,                                  )       No. ED101815
                                                 )
        Respondents,                             )
                                                 )       Appeal from the Circuit Court
        vs.                                      )       of the City of St. Louis
                                                 )
V.B.,                                            )       Honorable Elizabeth B. Hogan
                                                 )
        Appellant.                               )       Filed: June 30, 2015

        This appeal arises from a judgment in a paternity action addressing custody of and

support for the minor child of V.B. (“Mother”) and C.J.W. (“Father”). We reverse and remand,

in part, and affirm, in part.

        Mother and Father were in a relationship for five years, but never married. They have

one child, who was born in 2010 while they lived in Oklahoma. It is undisputed that Father is

the child’s biological parent. The family moved to Colorado for a year and then to Missouri in

February 2012 so Mother could enroll in a program at a local university. She started taking

prerequisite classes at a community college, but then had to quit so that she could work. In early

2013, Mother and Father ended their relationship. Mother indicated that she wanted to move

back to Colorado with the child, and Father filed this paternity suit to establish his legal rights.

Father sought joint legal and physical custody. Mother sought sole physical custody, with

visitation to Father only on certain holiday and school breaks. This plan would have allowed her
to move back to Colorado, where her family lived and where she claimed she wanted to continue

her education.

       The trial court considered Mother’s wishes, but found that she had no specific plans for

starting school and no job offers upon returning to Colorado other than her former hourly wage

retail position. Thus, she would have to live with her parents in Colorado and, if she attended

school there, would have to put the child in daycare four days of the week. The trial court noted

that Mother has already once changed her mind regarding her education after moving across the

country and that there are educational and employment opportunities in Missouri for Mother.

The trial court also considered that Father did not want the child to move to Colorado because—

despite his ability as an airline employee to fly himself and the child on stand-by for free—that

distance would severely hamper his relationship with the child. Prior to the paternity action,

Father saw the child every day and, during the proceedings, saw him twice a week. He had a

stable job and was willing to make changes to his schedule to spend more time with the child.

The child also saw his paternal grandparents almost every weekend. The trial court noted that

Mother thought Father was addicted to computers and that the child suffered a bee sting while in

Father’s care.

       The trial court concluded that joint legal and physical custody was in the child’s best

interest, after considering Mother’s reasons for wanting sole custody as compared to the damage

that her proposed move would do to the child’s relationship with Father. The parenting plan

ordered by the court gives each parent approximately equal amounts of time with the child. The

trial court also designated Mother as the residential parent for mailing and education purposes

provided she resides in the greater St. Louis, Missouri area. If she moves, then Father is

automatically designated the residential parent. The trial court found that the presumed child



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support amount of $372 a month was not unjust or inappropriate and ordered Father to pay that

amount to Mother. It also ordered that Father could take advantage of the child income tax

exemption in even-numbered years. The trial court denied Mother’s request for Father to pay her

attorney fees on the grounds that she did not “make as much” as he did. This appeal follows.

       In her first point, Mother claims that the trial court’s refusal to award her sole physical

custody is not supported by the evidence, is a misapplication of the law and is an abuse of the

trial court’s discretion. We disagree.

       Mother construes the judgment as “forbidding” her from moving to Colorado. Although

much of the trial court’s language focuses on her proposed move and its impact on the child,

nothing in the judgment actually prevents Mother from moving.          To be certain, any such

relocation would be subject to the requirements of Section 452.377 and would also likely

necessitate a motion to modify under Section 452.410.1.         The judgment also purports to

automatically re-designate the residential parent if Mother moves, which we address in the next

point. Thus, while Mother’s relocation has consequences, it is not forbidden. Hence, Mother’s

reliance on case law—mostly from other states—for the proposition that a court may not restrict

a custodial parent’s residence is misplaced on this point.

       Mother does not otherwise challenge the trial court’s conclusion—or any of its findings

in support thereof—that joint physical custody was in the best interests of the child. Rather,

Mother’s argument primarily revolves around what she believe is in her best interest—namely,

moving back to Colorado where she is from and where her family resides. This is not the proper

focus of a custody analysis. Our independent review of the record reveals that the trial court’s

conclusion that sole custody to Mother was not in the child’s best interest was not erroneous.

The trial court properly considered Mother’s uncertain employment and educational plans for her



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proposed future in Colorado as compared to the severe impact moving would have on the child’s

relationship with Father. This is consistent with the policy of this State that both parents have

“frequent, continuing and meaningful contact” with the child as long as it is in the child’s best

interest. Section 452.375.4.1 Moreover, the trial court’s findings—while not enumerated as

such—indicate that it also considered all the factors in Section 452.375.2(1)-(8) that were

relevant here. 2

         The determination of joint physical custody is supported by substantial evidence, is not

against the weight of the evidence and does not misstate or misapply the law. See Thorp v.

Thorp, 390 S.W.3d 871, 877 (Mo. App. E.D. 2013). Giving the trial court the great deference it

is due, we cannot say that Mother has demonstrated an abuse of the court’s discretion such that

we are firmly convinced that the welfare of the child requires an alternative arrangement. See id.

         Point I is denied.

         In her second point, Mother argues that the trial court erred when it designated Mother as

the “residential parent for mailing and educational purposes,” provided that she “resides in the

greater St. Louis, Missouri area.”               If Mother relocates, then the judgment purports to

automatically re-designate Father as the residential parent. We agree this was error.

         The designation of a “residential parent” under Section 452.375.5(1)3 for the child’s

educational and mailing purposes is considered a sub-issue of custody.                                 Meissner v.

1
  Section 452.375 governs custody determinations in paternity actions, and a parenting plan must be ordered under
section 452.310. See Section 210.853.
2
  Mother admits that she did not challenge the lack of statutory findings in the trial court, and she cannot do so now.
The record reveals that there was evidence of the following relevant factors supporting the trial court’s custody
determination: the parents’ wishes, the child’s need for a “frequent, continuing and meaningful” relationship with
both parents, the willingness of the parents to perform their parental functions, the interaction of the child with the
parents and others, which parent was more likely to allow “frequent, continuing and meaningful” contact with the
other and the parents’ desires to relocate the child. See Section 452.375.2 (1)-(4), (7). There was no evidence
relating to the child’s adjustment, his wishes or the physical or mental health of anyone involved. See Section
452.375.2(5)-(6), (8).
3
  The legislature recognized that an award of joint physical custody leaves unresolved the child’s address for
purposes of education and mailing and thus requires the trial court in those awards to designate a “residential parent”

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Schnettgoecke, 427 S.W.3d 864, 866 (Mo. App. E.D. 2014) (citing Clayton v. Sarratt, 387

S.W.3d 439, 445 (Mo. App. W.D. 2013)). A change to the residential designation constitutes a

change to the terms of joint physical custody, but it is not a change to the custodial arrangement

itself. Meissner, 427 S.W.3d at 866.

        As for all modifications of the terms relating to custodial arrangements, the standards set

forth in Section 452.410 apply to a change in the “residential parent.” See id. Therefore, that

designation can only be changed upon a motion to modify and a finding by the trial court that

there has been a substantial change in the circumstances of the child or his custodian, which

requires a modification to the terms of the judgment in order to serve the best interests of the

child. See id. at 867; see also Section 452.410.1. Provisions of a dissolution judgment that

include an automatic change to a term relating to child custody upon the happening of some

event in the future have been held unenforceable because they improperly predetermine what

would constitute the significant change in circumstances required for modification. See Burch v.

Burch, 805 S.W.2d 341, 343 (Mo. App. E.D. 1991); In re Marriage of Dusing, 654 S.W.2d 938,

943 (Mo. App. S.D. 1983). The provision designating Mother as the residential parent, but then

automatically changing that designation to Father if Mother relocates, improperly predetermines

that a change of circumstances warranting modification has occurred.

        As noted above, if Mother wants to move, she must follow Section 452.377 and there

would likely be a need to request modification under Section 452.410. Those statutes adequately

address the consequences of a custodial parent’s relocation. Thus, there is no need to include

restrictions on relocation or automatic changes to terms upon relocation in the judgment. We are

for those purposes. Although courts have used the terms interchangeably, the designation of “residential parent” is
not the same as a declaration of a child’s “principal residence,” which is usually unnecessary in a joint custody
situation because both parents are custodial and both of their homes are considered the child’s principal residence.
See Gaudreau v. Barnes, 429 S.W.3d 429, 432-33 (Mo. App. E.D. 2014); see also Hall v. Utley, 443 S.W.3d
696,707-08 (Mo. App. W.D. 2014).


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reluctant to merely order the restriction and automatic re-designation language stricken from the

judgment because we cannot be sure that the trial court would have designated Mother the

residential parent without it. Thus, we reverse the portion of the judgment designation of Mother

as residential parent and remand for a designation of residential parent that is consistent with this

opinion.

       Point II is granted.

       In her third point, Mother argues that the trial court erred in awarding Father the child

income tax exemption in alternating years without first finding that the presumed child support

amount calculated on Form 14 was unjust or inappropriate. We agree.

       When awarding child support in a paternity or a dissolution action, the trial court is

required to follow a two-step procedure. Vaughn v. Bowman, 209 S.W.3d 509, 514 (Mo. App.

E.D. 2006) (citing Section 452.340, Rule 88.01 and Woolridge v. Woolridge, 915 S.W.2d 372,

379 (Mo. App. W.D. 1996)). First, the trial court determines the presumed child support amount

in accordance with Form 14, either by accepting the Form 14 calculation of one of the parties or

by doing its own. Id. at 514. Then, the trial court determines whether, considering all relevant

factors, the presumed child support amount is unjust or inappropriate; such a finding rebuts the

presumption that the amount is correct. Id.          Here, the trial court found that the amount

calculated on Form 14 was not unjust or inappropriate.

       The amount calculated on Form 14 is based on certain assumptions, including “that the

parent entitled to receive support claims the tax exemption for the children entitled to support.”

Form 14, Assumption 7. Therefore, the presumed child support amount is based, in part, on the

fact that that the parent receiving support for the child is also getting the benefit of the tax

exemption for that child. “Consequently, if the trial court switches the presumed award of the



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tax exemption from the child support obligee to the obligor, it is, in effect, rebutting the PCSA.”

Conrad v. Conrad, 76 S.W.3d 305, 313 (Mo. App. W.D. 2002). As a result, in order to award the

tax exemption to the parent paying support instead, the trial court must first find that the

presumed amount is unjust or inappropriate. Vaughn, 209 S.W.3d at 514. Here, the trial court

did not make that finding, but still awarded the tax exemption to Father in alternating years.

       Father relies on In re Marriage of Eskew for the proposition that no specific finding of

“unjust and inappropriate” is necessary for the trial court to award the tax exemption to the

support-paying parent. 31 S.W.3d 543 (Mo. App. S.D. 2000). Noting the complexity of Form

14 and the proliferation of guidance therein and in case law, the court in Eskew refused to “place

yet another mine in this legal minefield for trial courts to dodge.” Id. at 550. Instead, it held, the

award of a tax exemption should be reviewed for an abuse of discretion. Id. Although we, like

the Western District, agree with the Southern District’s observations about the burdens that Form

14 and its complexity puts on trial courts, we think that our reasoning in Vaughn—grounded in

the language of the applicable statute, rules and well-established precedential case law—is the

sounder approach. See Vendegna v. Vendegna, 125 S.W.3d 911, 914-15 (Mo. App. W.D. 2004);

Dodge v. Dodge, 398 S.W.3d 49, 55 (Mo. App. W.D. 2013) (both declining to follow Eskew).

Moreover, concerns about legal burdens “cannot replace what is required by the law.” Jarvis v.

Jarvis, 131 S.W.3d 894, 898 (Mo. App. W.D. 2004) (rejecting Eskew’s reasoning). Therefore,

we also decline to follow Eskew’s approach.

       We conclude that the trial court erred as a matter of law in awarding the tax exemption to

Father in alternating years without first rebutting the presumed child support amount as unjust

and inappropriate. Therefore, the order of child support must be reversed. See Vaughn at 515.

On remand, the trial court is directed to recalculate child support consistent with this opinion.



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       Point III is granted.

       In her final point, Mother claims that because of the parties’ disparity of income—

Father’s income was twice that of Mother’s—the trial court erred in failing to award her attorney

fees. The court in a paternity action “may” order reasonable attorney fees “be paid by the parties

in such proportion and at such times as determined by the court.” Section 210.842. The trial

court is vested with broad discretion to award attorney fees, and we will not disturb that award

absent an abuse of discretion. Scobee ex rel. Roberts v. Scobee, 360 S.W.3d 336, 346-47 (Mo.

App. W.D. 2012). Although disparity of income is one relevant factor for the trial court to

consider, the court has discretion to consider other factors, including the parties’ conduct during

the proceedings and the merits of the case. Id. The trial court did not abuse its discretion by

failing to award Mother her attorney fees in this case simply because Father made more money

than she did. Mother has failed to overcome the presumption that the trial court’s decision not to

award attorney fees was correct.

       Point IV is denied.

       The designation of the residential parent and the child support award are reversed. The

case is remanded for re-designation of the residential parent and reconsideration of child support

consistent with this opinion. In all other respects, the judgment is affirmed.




                                                      ROBERT G. DOWD, JR., Judge


Kurt S. Odenwald, P.J. and
Gary M. Gaertner, Jr., J., concur.




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