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In the Missouri Court of Appeals
Western District
JERI JILL WOOD, v. MARK STEPHEN WOOD, ) Appellant, ) ) ) ) Respondent. )

WD74944 FILED: December 26, 2012

APPEAL FROM THE CIRCUIT COURT OF PLATTE COUNTY THE HONORABLE GERALD D. MCBETH, JUDGE BEFORE DIVISION TWO: LISA WHITE HARDWICK, PRESIDING JUDGE, JAMES M. SMART AND KAREN KING MITCHELL, JUDGES
Jeri Jill Wood (Mother) appeals from the circuit court's judgment modifying the dissolution judgment between her and Mark Wood (Father). Mother alleges error in the court's modification of the child custody terms and the child support and maintenance provisions of the decree. For reasons explained herein, we reverse the judgment, in part, and remand the case to the circuit court. FACTUAL AND PROCEDURAL HISTORY Mother and Father's marriage was dissolved in June 2008. The court granted the parties joint legal and joint physical custody of their son. The dissolution judgment included a detailed parenting plan, which provided that Father would have the child on alternating weekends, every Wednesday after school, and

certain holidays, while Mother would have the child at all other times. The court ordered Father to pay Mother $1476 per month in child support and $1800 per month in maintenance. Additionally, the court ordered Father to pay Mother approximately $145,000 to equalize the property division, compensate her for wrongfully withdrawing money from her retirement accounts, and pay her attorney fees. Father appealed, but we affirmed the dissolution judgment in a per curiam order. Wood v. Wood, 300 S.W.3d 621 (Mo. App. 2010). On February 24, 2010, Mother filed a petition for contempt against Father for his failure to pay child support, maintenance, and the other amounts he owed her under the dissolution judgment. On March 1, 2010, Father filed a motion to modify the judgment. In his motion, Father sought primary care of the child and termination of his child support and maintenance obligations. Following a hearing, the court issued a judgment finding Father in contempt on June 2, 2010. In the contempt judgment, the court ordered Father to fully pay each current month's child support and maintenance on or before the fifth day of each month. The court also ordered Father to pay: (1) within thirty days of the contempt judgment, the sum of $24,254.41 to satisfy his past due child support and maintenance obligations; (2) within ninety days, $23,000 for Mother's past due and current attorney fees; and (3) beginning 120 days after the contempt judgment, $5000 per month toward the arrearage and interest on the amounts owed under the dissolution judgment. The court stated that the failure to make

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any of these payments would result in Father's incarceration until such contempt was purged. When Father failed to pay the $24,254.41 to satisfy his past due child support and maintenance obligations within thirty days after the contempt judgment, Mother filed a motion for a warrant of commitment. A warrant of commitment was issued, and Father was committed to the Platte County Jail on July 26, 2010. Father filed a motion to purge, but the court denied his motion. Father subsequently posted a $25,000 cash bond and was released from jail. On September 23, 2010, the court forfeited Father's bond and ordered the $25,000 disbursed to Mother. The court also ordered the parties to put into effect, on a trial basis, a parenting plan that the guardian ad litem had proposed. The plan allowed Father more time with the child. In November 2010, the court entered a second warrant and order of commitment for Father due to his failure to pay each month's child support obligation, his failure to pay Mother's $23,000 in attorney fees, and his failure to pay $5000 per month toward the arrearage and interest on past due accounts. Father was again committed to the Platte County Jail. Counsel for both parties negotiated a sum of $38,000 to bring Father into partial compliance with the contempt judgment. Father paid this amount and was released from jail. In January 2011, Father's counsel withdrew from the case and Father chose to proceed pro se. Trial was held on Father's motion to modify on September 22, 2011. Following the trial, the court entered its judgment modifying the child 3

custody terms and the child support and maintenance provisions of the dissolution decree. The court found that custody should remain joint legal and joint physical, with Mother's address used for school purposes, but the court approved and adopted the guardian ad litem's parenting plan. With regard to child support, the court found that "all Form 14s submitted were unjust and inappropriate except for [Father's] Form 14 presuming that he could reasonably be expected to earn $9000.00 per month." The court approved and adopted that Form 14 and set Father's child support obligation at $400 per month. The court ordered this amount effective as of the date that Father filed his motion to modify, which the court stated was February 24, 2010. The court also ordered that Father be given a credit on past due child support from that date. Lastly, on the issue of maintenance, the court found that Father's reduction in income was real and not due to his actions. The court reduced the maintenance award to $10 per month. As it did with the modified child support amount, the court ordered that the modified maintenance amount be effective as of the date that Father filed his motion to modify, which the court again stated was February 24, 2010. The court ordered that Father have a credit against past due maintenance from that date. Mother filed a motion to amend the judgment or, alternatively, for a new trial. In the motion, she asserted, among other things, that the court failed to make statutorily-required written findings concerning the custodial arrangement; failed to include the parenting plan in its judgment; and failed to make a sufficient 4

record concerning the child support award. Pursuant to Rule 78.06, the motion was overruled by operation of law when the court did not rule on it within ninety days after it was filed. Mother appeals. STANDARD OF REVIEW Appellate review of a judgment modifying a dissolution decree is under the standard of Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Lueckenotte v. Lueckenotte, 34 S.W.3d 387, 397 (Mo. banc 2001). We will affirm the circuit court's judgment 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. Id. We view the evidence and any reasonable inferences therefrom in the light most favorable to the court's decision and disregard all contrary evidence and inferences. Pratt v. Ferber, 335 S.W.3d 90, 93 (Mo. App. 2011). In doing so, we recognize that the court was free to believe or disbelieve all or any part of the witnesses' testimony. Id. ANALYSIS Failure to Make Written Findings In Point I, Mother contends the circuit court misapplied the law in modifying the original judgment because it failed to make proper findings on two issues with regard to child custody. First, Mother argues that the court failed to make written findings identifying the facts that constituted changes warranting modification. Second, Mother argues the court failed to make written findings concerning the

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custodial arrangement. Because the requirements regarding written findings on these issues are different, we will address them separately. In determining that modification of the custody terms was warranted, the court found that, since the dissolution, "there has been a substantial change of circumstances with respect to custody . . . such that the terms of the Decree should be modified." The court did not further specify the change of circumstances. Mother contends the court was required to identify, in the judgment, "facts that had arisen that constituted changes so substantial and continuing that made modification of the original decree to be in the child's best interests." Initially, we note that, contrary to Mother's claim, the court was not required to find a "substantial" or "continuing" change of circumstances to modify the terms of the parties' joint physical custody arrangement. Section 452.410.11 provides the proper standard for modification of a joint physical custody judgment. Hightower v. Myers, 304 S.W.3d 727, 734 (Mo. banc 2010). This statute states that, to modify a prior custody decree, the court must find "that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child."

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