Prevost v. Silmon

645 S.W.3d 503

Alexandra C. PREVOST, Appellant,

v.Brett M. SILMON, Respondent.

WD 84501

Missouri Court of Appeals, Western District.

OPINION FILED: March 8, 2022

Motion for Rehearing and/or Transfer to Supreme Court Denied May 03, 2022

Application for Transfer Denied June 28, 2022

Allison G. Kort, Kansas City, MO, Attorney for Appellant.

Anthony W. Bonuchi, Kansas City, MO, Attorney for Respondent.

Before Division One: Mark D. Pfeiffer, Presiding Judge, and Karen King Mitchell and Gary D. Witt, Judges

Mark D. Pfeiffer, Presiding Judge

Ms. Alexandra Prevost ("Mother") appeals from the Judgment of Modification ("Judgment" or "Modification Judgment") of the Circuit Court of Platte County, Missouri ("circuit court"), modifying the previously entered Judgment of Dissolution ("Dissolution Judgment") and awarding Mr. Brett Silmon ("Father") sole legal custody of their minor child ("Child"). We affirm.

Factual and Procedural Background¹

Mother and Father married November 1, 2013, in Grand Forks, North Dakota, where they both served in the Air Force. The couple's child was born December 8, 2014, and, that same day, Mother was discharged from the Air Force. Thereafter, the couple moved to the Air Force Academy in Colorado Springs, Colorado, as Father was still enlisted in the Air Force. The couple remained together in Colorado until November 2017 when Mother, alone, relocated to Platte County, Missouri.

In January 2018, the couple agreed to dissolve the marriage. Mother retrieved Child from Colorado and returned to Platte County, Missouri. Father was medically discharged from the Air Force after suffering a traumatic brain injury and moved to Arcadia, Louisiana, temporarily. Father eventually remarried and resides in El Dorado, Arkansas, and is employed by the United States Department of Defense. Mother lives with her parents in North Kansas City, Missouri, and works for FedEx.

In early 2018, Mother filed an uncontested dissolution of marriage petition with the circuit court. The circuit court entered its Dissolution Judgment on April 19, 2018. In pertinent part, the circuit court awarded Mother and Father joint legal and physical custody of Child, ordered that no child support be paid by either party, and entered a parenting plan that called for the parties to exchange Child every six weeks until Child entered school or until the parenting plan was modified.

Between March 2018 and July 2019, the parenting plan seemingly worked. However, beginning in July 2019, things deteriorated between Mother and Father. Mother refused to permit Child to return to Father after a summer vacation trip with Mother to Branson in 2019. Mother subsequently limited Father's parenting time to a couple of days for the remainder of 2019 and refused to give Child Christmas presents that Father sent to Mother for that purpose.

Father thereafter filed a motion to modify the Dissolution Judgment seeking to obtain sole legal and physical custody of Child. L.F. Doc. 2, at 6, ¶ 1. Mother responded with a counter-motion to modify in which she requested sole legal and joint physical custody, that the parenting plan be modified, Father reimburse her for child-care expenses, and Father be ordered to pay child support going forward and retroactive from the date Father filed for modification. L.F. Doc. 5, at 3. The circuit court appointed a guardian ad litem ("the GAL") following Mother's allegations that Father abused Child by using excessive and unreasonable corporal punishment.

A trial was held on the motions to modify on November 4 and 9, 2020, wherein Mother and Father both testified and were each represented by counsel. In addition to Mother's and Father's testimony, the circuit court heard testimony from the GAL, Father's wife, Father's mother, and two of Father's aunts. On December 22, 2020, the circuit court entered its Modification Judgment and, in pertinent part, made the following findings pursuant to section 452.375.2(1)-(8):

(1) The wishes of the child's parents as to custody and the proposed parenting plan submitted by both parties:

• Father's parenting plan requests that the parties share joint legal and physical custody, but that his address be designated as the child's address for school and mailing.

• Mother's parenting plan requests that she have sole legal custody of the child and that the parties share joint physical custody, but that her address be designated as the child's address for school and mailing.

(2) The needs of the child for a frequent, continuing and meaningful relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child:

• When the child was expelled from preschool in December 2018, Mother asked Father to "come get him," although Mother was to exercise holiday parenting time that year.

• While Child lived with Father between December 2018 and July 2019, Father advised Mother of two potential schools that he was investigating for Child to attend. Mother responded that either school was fine with her but later rescinded her agreement on the topic.

• Mother recorded Child's virtual visits with Father despite Child informing Mother that he did not like her doing that.

• Father's Mother testified that when Father lived with her, Father never asked her to babysit Child.

• Mother works part-time and does not begin her shift until 7:00 p.m. Mother nevertheless sends Child to after-school care until 5:15 p.m. Mother's justification for this is that she takes online college courses in the morning all but two days a week when the courses end at 2:15 p.m. Mother puts Child to bed at 7:00 p.m.

• Despite Mother alleging that Father physically abused Child, Mother was comfortable with allowing Child to live with Father for several months and encouraged Father to book a hotel room in Kansas City to exercise his parenting time.

• Father admits that he spanked Child with a belt on two occasions. Father's justification for this is that he tried other manners to correct Child's behavior, and in one particular instance involving a pontoon boat, Child was in danger of drowning if his behavior was not modified.

• Mother alleged that Father abused Child in one instance because of a scar on Child's lower back. Father explained that Child fell while playing on a bed and hit his back on a curtain hook attached to the wall. This explanation was confirmed by Father's Mother. Father testified that he did not inform Mother of this incident because he believed it to be a minor matter. Mother testified that Child informed her that Father had "hit him with a slapper."

• Mother made another allegation of abuse regarding a mark on Child's head. Mother alleged that Father hit Child with a golf club and witness Stephanie Silmon made the same allegation. It was disclosed that Stephanie Silmon stayed with Mother at her family home while in Kansas City for the trial. For several reasons, the circuit court did not find Stephanie Silmon's testimony credible.

• Stephanie Silmon made two other allegations of abuse that caused the trial court to question her credibility. In cross-examination, it became obvious that she did not share her concerns of abuse with the GAL during a telephone interview. And, during trial proceedings, a photograph of Child as an infant was admitted, which showed that the mark on his head was a birthmark and not a scar. The GAL made no record of Child being hit in the head with a golf club.

• Mother alleges that Father spanks Child regularly, far exceeding the two occasions disclosed by Father. Another of Father's aunts, Karen Silmon, who is the principal of an elementary school and who witnessed the two incidents in which Father spanked Child with a belt, testified that those incidents were not abusive and were necessary to correct Child's behavior, as Father had already attempted other methods. Although Karen Silmon is a mandated reporter, she did not report either instance as abuse.

• Both parties agreed to spanking as a form of discipline.

• All of Mother's allegations of abuse allegedly occurred before July 2019.

• Mother admits that she smacks Child in the face to get him to eat.

• The GAL testified that she did not believe that either parent abused Child.

(3) The interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child's best interests:

• Child has a good relationship with his stepmother, Father's wife, Tara. They build forts in the living room together and this relationship was confirmed by Father's mother based on her observations of Child and Tara together.

• Tara testified that Child is very excited for Father to come home. Child says things like, "[I] can't wait for daddy to come home so we can go build something in the shop."

• Child has a close relationship with his maternal grandparents whom he calls Mama and Papa.

• Numerous relatives live in close proximity to Father's home in El Dorado, Arkansas.

(4) Which parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent:

• Mother did not list Father as an emergency contact on Child's school records.

• Father did list Mother as an emergency contact on Child's school records.

• Mother refused Father parenting time on two occasions, citing "family pictures" as justification for refusing parenting time.

• Mother refused Father parenting time during Christmas 2019. Despite Father not seeing Child that Christmas, Father sent gifts. However, Mother refused to give Child the gifts.

• Father alleged that Mother distracts Child during virtual visits. Father testified that on one occasion Mother told Child that Father "doesn't want to see you ride your bike."

• During another virtual visit between Father and Child, Mother disturbed the call and Child told her, "[N]o, I want to talk to Daddy."

• While both parties were in the Kansas City area for trial, Mother refused Father parenting time.

• When Child went to

...