Woolery v. Woolery

679 S.W.3d 17

Kristy Rhea WOOLERY, Respondent,

v.Harry Dean WOOLERY, Appellant.

WD 85896

Missouri Court of Appeals, Western District.

OPINION FILED: NOVEMBER 21, 2023

Appeal from the Circuit Court of Pettis County, Missouri, The Honorable Keith M. Bail, Judge

Brody Sabar, Kansas City, MO, for Appellant.

Anthony Bonuchi, Kansas City, MO, for Respondent.

Before Division One: Edward R. Ardini, Jr., Presiding Judge, Anthony Rex Gabbert, Judge, Thomas N. Chapman, Judge

Anthony Rex Gabbert, Judge

Harry Woolery appeals the judgment of the Pettis County Circuit Court modifying a prior judgment. The trial court changed child custody from joint to sole, modified child support, entered a new parenting plan, and addressed whether either party was in contempt. In five points on appeal, Woolery claims the trial court erred in finding a change of circumstances, calculating child support, ordering him to pay extraordinary expenses, and finding him in contempt. The judgment is affirmed in part, reversed in part, and amended in part.

Facts

In December 2011, the Pettis County Circuit Court entered a first amended judgment dissolving the marriage of Harry Woolery ("Father") and Kristy Woolery ("Mother"). The judgment awarded Father and Mother joint legal and physical custody of their two children ("Children") and ordered Father to pay child support in the amount of $636 per month. Children were almost six years old and four years old at the time. The judgment granted Father custody of Children during the school year on alternating weekends and on Wednesdays. During the summer, the parties were ordered to share week on/week off visitation. Shortly thereafter, Father moved an hour and a half away from Mother. Father remarried in 2017 to a woman who has shared custody of her two children.

In November 2021, Father filed a motion to modify, a motion for contempt, and a motion to quash garnishment. He alleged that there have been disputes and conflicts with scheduling visitation and sought an amendment of the parenting plan to clarify the joint legal and physical custody. He also sought a larger block of time with Children in the summer. Father further alleged that Mother had failed to execute a quit-claim deed as required by the original judgment and that he had satisfied a judgment against him for Mother’s attorney fees.

In December 2021, Mother filed a counter motion to modify and for contempt. She alleged that Father has been noncooperative and unreasonable in scheduling matters concerning Children. She alleged the following: One child is in high school and the other is entering it. Children have increased expenses because they are older. Father is unwilling to travel to allow Children to honor their activities and commitments. Father has prevented Children from participating in extracurricular activities and sports during his time with Children, including school activities. The oldest child has a job, and Father has demanded that the oldest child not work during the time Father has Children. Children miss attending social events with their friends that occur during Father’s time with Children. Many of these problems are caused by Father’s voluntary relocation away from Children, and the situation is unfair to Children. Children do not want Father to have shared custody of them. Mother sought sole legal and physical custody of Children. Mother also alleged Father failed to pay half of the cost of a child’s orthodontic treatment as required by the original judgment.

The matter proceeded to a bench trial in September 2022. Father and his wife testified in support of Father's motion. Mother, Children, a former baseball coach of youngest child, and the wife of a former soccer coach of oldest child testified in support of Mother’s motion.

Judgment was entered in December 2022. The trial court found that Father failed to meet his burden of proof that Mother’s failure to execute a quit-claim deed was willful and contumacious. Mother executed the quit-claim deed while this matter was pending. The trial court denied Father’s motion for contempt.

The trial court found that Father’s failure to pay for half of his child’s orthodontic treatment as required by the original judgment was willful and contumacious. Father did not believe the orthodontic care was necessary but did not present any evidence supporting that belief and did not attend any orthodontic appointments to question the necessity of treatment. It sustained Mother’s motion for contempt.

The trial court also found that, of the $4047.98 garnished from Father, Mother received $1216.05 more than she should have. It entered satisfaction of judgment, found the motion to quash the garnishment moot, and applied the overcollection of money to the amount owed for orthodontic treatment.

The trial court awarded Mother sole legal and physical custody of Children. It adopted a new parenting plan. The trial court also ordered Father to pay child support in the amount of $953 per month.

This appeal follows.

Standard of Review

[1-3] "In a court-tried case, we will affirm the trial court’s judgment unless it is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law." Langston v. Langston, 615 S.W.3d 109, 115 (Mo. App. W.D. 2020) (internal quotation marks omitted). "We view the evidence, and permissible inferences therefrom, in the light most favorable to the trial court’s judgment, and we disregard all contrary evidence and inferences." Id. (internal quotation marks omitted). "We defer to the trial court’s factual findings, giving due regard to the trial court’s opportunity to judge the credibility of witnesses." Id. (internal quotation marks omitted).

[4-6] "The circuit court’s judgment in a civil contempt proceeding will not be disturbed on appeal absent a clear abuse of discretion." Frawley v. Frawley, 637 S.W.3d 140, 147 (Mo. App. W.D. 2021). "An abuse of discretion occurs when the ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration." Id. (internal quotation marks omitted). "The circuit court’s judgment in a civil contempt proceeding must be affirmed unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law." Id. (internal quotation marks omitted). "We defer to the trial court’s credibility determinations and its weighing of the evidence." Id. (internal quotation marks omitted).

Point I

In his first point on appeal, Father claims the trial court erred in finding there was a change of circumstances warranting modification of joint custody to sole custody. He states that Mother based her modification request on changes to the children’s sporting activities, social life, and work activities. Father argues that these changes would have been foreseen by the trial court at the time of the original decree.

[7, 8] "Section 452.410¹ governs the modification of child custody in two steps." Hark v. Hark, 567 S.W.3d 671, 677 (Mo. App. E.D. 2019). "A movant must first show a change has occurred in the circumstances of the children or the custodial parents based upon facts that have arisen since the prior decree or facts that were unknown to the court at the time of the prior decree." Id. "If the necessary level of change in circumstances is shown, movant must next show modification is necessary to serve the best interests of the children." Id. "The change required in the first step differs based on the type of modification sought." Id. "When physical custody is modified from joint to sole, a ‘substantial change’ must be shown." Id.

[9-11] "Not every change in circumstances calls for a modification of custody." Id. "When deciding a physical custody modification, the court only considers changes related to the custodial parents’ abilities to care for the children." Id. "[A] change in the circumstances of the parents’ use of parenting time and their sharing of it in such a way as to assure the child[ren] of frequent, continuing, and meaningful contact with both parents is the main concern of the court in assessing which changes should be considered." Id. at 678 (internal quotation marks omitted). "Substantial change requires a more rigid burden using the same physical custody factors." Id.

The trial court found that the changed circumstances included Children’s interests, the wishes of Children, and the ongoing conflict between Mother and Father regarding Children’s schedules and custody schedules. The trial court stated that both Mother and Father agreed that the current parenting plan was not working.

[12] We note that this case began when Father filed a motion to modify. In that motion, Father identified the disputes and conflicts with Children’s schedules. He stated in his motion that "there has been a substantial and continuing change in circumstances." Mother made the same statement in her response and motion to modify. Father is not now permitted to argue that the trial court erred in finding the very thing Father advocated for in his own motion to modify. See Prevost v. Silmon, 645 S.W.3d 503, 513 (Mo. App. W.D. 2022) (mother could not argue that the trial court erred in finding that the parties are no longer able to function as a joint legal custody unit and a custodial change is necessary where mother filed a competing motion for sole legal custody and also asserted the parties were unable to function as a unit); Querry v. Querry, 382 S.W.3d 922, 928 (Mo. App. W.D. 2012) ("Therefore, as both parties pled and argued a substantial change in circumstances since the prior decree that warranted modification of the custody arrangement, the court did not and, perhaps, could not err in finding the same."); Clayton v. Sarratt, 387 S.W.3d 439, 448 (Mo. App. W.D. 2013) ("[H]aving...