APPELLANT S REPLY BRIEF

Transcription

1 IN THE MISSOURI COURT OF APPEALS WESTERN DISTRICT NO. WD76284 NDEYE MARIEME NDIAYE, Respondent, vs. CHEIKH IBRA SEYE, Appellant. Appeal from the Circuit Court of Boone County, Missouri The Honorable Leslie L. Schneider APPELLANT S REPLY BRIEF JAMES C. OCHS, #34436 PATRICK T. OCHS, #64067 OCHS & KLEIN, ATTORNEYS, P.C. Attorneys for Appellant 149 N. Meramec, 2 nd Floor St. Louis, MO Telephone: (314) Facsimile: (314) jochs@ochsklein.com pochs@ochsklein.com

2 TABLE OF CONTENTS TABLE OF CASES...2 APPELLANT REPLY TO RESPONDENT S BRIEF Reply I...3 Reply II...4 Reply III...5 Reply IV...7 CONCLUSION...8 CERTIFICATE OF COMPLIANCE...9 CERTIFICATE OF SERVICE...9 1

3 TABLE OF CASES A.E.B. v. T.B., 354 S.W.3d 167 (Mo. banc 2011) 7 Clayton v. Sarratt, 387 S.W.3d 439 (Mo. App. W. Dist. 2013) 7 Cunningham v. Cunningham, 143 S.W.3d 647 (Mo. App. E.D. 2004) 5 Davidson v. Fisher, 96 S.W.3d 160 (Mo. App. W.D. 2000) 5 Gant v. Gant, 892 S.W.2d 342 (Mo.App. W.D. 1995) 5 Hightower v. Myers, 304 S.W.3d 727 (Mo. 2010) 6 Loumiet v. Loumiet, 103 S.W.3d 332 (Mo. App. W.D. 2003) 4 Nelson v. Nelson, SD32534, 2013 WL (Mo. App. S.D. 2013) 6 Russell v. Russell, 210 S.W.3d 191 (Mo. banc 2007). 3,4 Soehlke v. Soehlke, 398 S.W.3d 10 (Mo. banc 2013) 7 Statutes RSMo 4,5,6, RSMo 3,4 ABBREVIATIONS T... Transcript LF.... Legal File..paragraph A.. Appendix App. Brief.... Appellant s Brief Res. Brief.. Respondent s Brief 2

4 ARGUMENT REPLY I RESPONDENT INCORRECTLY ASSERTS THAT THE COURT APPLIED THE CORRECT STANDARD WHEN IT MODIFIED THE EXISTING CUSTODY DECREE. Respondent mistakenly contends that the court applied the appropriate modification standard; however, the trial court neither cites , RSMo 1 nor does it use the language of the statute in its order. The court shall not modify a prior custody decree unless it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, 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 , RSMo. Where parties maintain a joint physical custody arrangement, a modification to the parenting time schedule requires a finding of changed circumstances. Russell v. Russell, 210 S.W.3d 191, 196 (Mo. banc 2007). The omission of such a finding reinforces that the court did not apply Section as is statutorily required. Russell stands for the proposition that a court shall make a substantial change finding when the change to the previous custody order is drastic. Russell, 210 S.W.3d at 197. Here, the modification judgment, while maintaining the parties joint physical status, nonetheless significantly reduced Appellant s custody time with his children. The initial custody decree provided Appellant with equal custody of his children. (A 3). The 1 All statutory references are to RSMo. (2000), unless otherwise indicated. 3

5 modification judgment reduced Appellant s custody to every other weekend with extended time during spring break and summer. (T ). The modification reduced Appellant s yearly overnights from 182 to 87. Even more, during the children s school year Appellant s overnights were reduced from 147 (50%) to 42 (14%). (LF 176). In contrast to Russell where the court reduced Father s time by a couple hours each week; here, the modification was not a simple shift in parenting time, instead the modification effectively reduced Appellant s custody time in half. Russell at 197 (finding that a change to a joint custodian s parenting time of a few hours a week are not as drastic). Russell and its progeny required the trial court to apply the appropriate modification standard under Section REPLY II RESPONDENT INCORRECTLY ASSERTS THAT THE EVIDENCE SUPPORTS THAT NO WRITTEN FINDINGS OF ABUSE WERE REQUIRED UNDER and (6). Where there is testimony in the record concerning domestic abuse the trial court cannot remain silent in its findings. Loumiet v. Loumiet, 103 S.W.3d 332, 341 (Mo. App. W.D. 2003). Respondent misrepresents that no testimony was presented that Respondent s spanking was unreasonable or abusive. The guardian ad litem, in part, based her recommendation that the children primarily live with Appellant on the [the children s] repeated reports of abuse by the [Respondent]. (See App. Brief 43-44). Lisa Brown reported consistent disclosures from the children that Respondent was abusing and hitting them. (See App. Brief 40). Dr. Ellis, a licensed psychologist reported in her bonding assessment of Respondent and through her testimony that she had concerns with 4

6 mother s discipline techniques. (See App. Brief 13). Furthermore, Respondent admitted that she wasn t proud of the fact that she spanked her children (T 568) and testified that she recalled her child saying to her Mom, you hit us all the time. (T 611). Respondent argues that this case is factually similar to Cunningham v. Cunningham; however, the husband in Cunningham testified that he never touched or assaulted his wife and the court determined that it was not required to enter findings as to whether abuse occurred. Cunningham v. Cunningham, 143 S.W.3d 647, 653 (Mo. App. E.D. 2004). Here, the Judge directly asked Respondent to describe where she slapped her children, which Respondent replied Slapping. Like slapping on the bottom, the leg maybe sometimes, the lower back sometimes. (T 709). Instead this case more analogous to Gant v. Gant where the alleged abuser acknowledged the occurrences of most of the incidents that were alleged by the victim. See Gant v. Gant, 892 S.W.2d 342 (Mo.App. W.D. 1995). REPLY III RESPONDENT INCORRECTLY ASSERTS THAT THE COURT S FINDINGS ADOPTING MOTHER S PARENT PLAN AND REJECTING FATHER S PROPOSED PARENT PLAN COMPLIED WITH and Respondent misconstrues Appellant s argument regarding the written findings required by Section Appellant does not contend that the court is required to specifically discuss each factor. Instead, when custody is in dispute, as it was here, and the court accepts or rejects a proposed custody arrangement, as it did, the court must include a written finding detailing the specific relevant factors resulting in accepting or rejecting such arrangement, which it did not. See Davidson v. Fisher, 96 S.W.3d 160, 164 (Mo. App. 5

7 W.D. 2000) (court found three of the factors were pivotal in determining which custody arrangement was in the children s best interest); Section , RSMo The instant case demonstrates that the trial court listed each of the 8 factors and determined which party each factor favored. A checklist where the trial court lists the best interest factors and then indicates which party each factor favored is not sufficient to meet the statutory requirements. Nelson v. Nelson, SD32534, 2013 WL (Mo. App. S.D. 2013). The findings must include specific findings of fact and some discussion of those facts. Id. at 2. Here, the trial court s findings failed to address the unrefuted evidence of the treating therapist, Lisa Brown; the guardian ad litem s investigation and custody recommendation; or the bonding assessment conducted on the parties. This evidence directly contradicts the court s findings under factors (1)(2)(3)(4)(5)(6)(8) and the court s ultimate conclusion that Mother s parenting plan is in the best interest of the minor children by providing both parents frequent meaningful contact with the children on a specific schedule. (LF 131). Respondent argues that just because the order does not specifically reference [evidence] does not mean that the trial court did not consider the evidence in its determination. However, to comply with Section the court must include specific findings of fact where evidence was adduced as to a specific factor. Hightower v. Myers, 304 S.W.3d 727, 735 (Mo. banc 2010)(finding that not considering a child s wishes was proper where no evidence of this factor was adduced at trial). Here, there was evidence 6

8 adduced which speaks directly to each factor and which is absent from the court s consideration in determining the appropriate custody arrangement. REPLY IV RESPONDENT INCORRECTLY ASSERTS THAT APPELLANT S RESIDENCE IN INDIANA WAS AN APPROPRIATE CONSIDERATION UNDER (7) Respondent misconstrues (7), RSMo 2011 to represent that anytime a residence of a child is changed that analysis under this factor is appropriate. The Supreme Court in Soehlke v. Soehlke, 398 S.W.3d 10 (Mo. banc 2013) recently discussed this factor and it s applicability to the courts custody determination. A parent s request to have a child s principal residence changed to their own is not the change contemplated by the factor set forth in Section (8). Soehlke, at 19 n. 4 (Mo. banc 2013). See also A.E.B. v. T.B., 354 S.W.3d 167, 171 (Mo. banc 2011). 2 In Sohlke, the trial court properly did not consider the relocation issue when Father sought to modify the joint custody decree because Father did not have a present intent to relocate his residence. Soehlke at 19 n. 4. (finding that the judgment makes clear that Father's motion sought to have the trial court change the child's principal residence from Mother's residence in Kansas to Father's residence in Missouri, but that is not the change contemplated by the factor set forth in section (8) ). See also Clayton v. Sarratt, 387 S.W.3d 439, 449 (Mo. App. W. 2 In this case, Mother's move to Ohio was already accomplished at the time the trial court made its initial custody determination. Mother argues that her completed move, coupled with her assertions at trial that she did not want to relocate from Ohio, demonstrated that there was nothing for the trial court to consider under section (7) regarding an intent to relocate Child's residence. As discussed further below, this Court finds nothing in the record that would result in a conclusion that Mother indicated an intent to relocate from Ohio to Missouri that required consideration under (7). 7

9 Dist. 2013)(factor irrelevant to its findings because there was no testimony from either party regarding a present intent to relocate). CONCLUSION For the reasons discussed in Appellant s Brief and Appellant s Response Brief, the judgment of the circuit court should be vacated, and this Court should (a) enter judgment, or (b) remand the case for entry of judgment, in favor of Appellant on his claim that the prior dissolution decree be modified to award him joint legal and sole physical custody of the children, that support be modified accordingly and remand the case with instruction to the Circuit Court that it make written findings required under , , , and OCHS & KLEIN, ATTORNEYS, P.C. /s/ James C. Ochs JAMES C. OCHS, #34436 PATRICK T. OCHS # N. Meramec, 2 nd Floor St. Louis, MO Telephone: (314) Facsimile: (314) jochs@ochsklein.com pochs@ochsklein.com ATTORNEYS FOR APPELLANT 8

10 CERTIFICATE OF COMPLIANCE I hereby certify, pursuant to Rule 84.06(c) of the Missouri Supreme Court Rules of Civil Procedure, as follows: 1. This brief complies with the information required by 84.04(g); 30.06(d); and 55.03; 2. Appellants Brief complies with the limitations contained in Rule 84.06(b), as it contains 1795 words. CERTIFICATE OF ELECTRONIC MAIL I also certify that a PDF version has been filed electronically. CERTIFICATE OF SERVICE The undersigned hereby certifies that a true copy of Reply of Appellant was accomplished on Respondent s attorney of record through the electronic filing system, on March 6, 2014: Linda Harris, Esq., Shurtleff Froeschner Harris L.L.C., 25 N 9th Street Columbia, MO ATTORNEY FOR RESPONDENT /s/ James C. Ochs James C. Ochs #34436 Attorney for Appellant 9