O.H.B. and N.K.B. by their Next Friend SMB v. L.Y.S.
ED110427
Appeal from the Circuit Court of Cape Girardeau to Missouri Court of Appeals – Eastern District
Opinion Filed March 21, 2023
Trial Court Ruling Affirmed
The parties S.M.B. (hereinafter “Father”) and L.Y.S. (hereinafter “Mother”) although never married are the parents of two children, O.H.B. and N.K.B.
After the parties separated, they shared custody of the minor children through an informal agreement. From 2016 until 2019, Father had custody of the children every other weekend. From 2019 until the court filing in 2021, Father had custody of the children from Wednesday until Sunday every other week.
In January 2021, Father filed a petition for a declaration of paternity, custody and support. Mother filed a counter-petition seeking a declaration of paternity, custody, and support. Following a bench trial, the circuit court entered a judgment establishing Father’s paternity, ordering a parenting plan, and establishing his child support obligation. After Father filed a motion for a new trial, the court issued an amended judgment granting the parties physical custody of the children as they agree and providing Father, at a minimum, parenting time from 4:00 p.m. every other Wednesday until 4:00 p.m. the following Sunday. The court also ordered Father to pay $633 per month in child support.
Father filed a two-point appeal arguing that: (1) that the trial court’s judgment is against the weight of the evidence and misapplies the law by not awarding substantially equal parenting time and (2) Father claims the circuit court erroneously calculated child support based on the allegedly incorrect custody determination.
In its opinion, the Appellate Court noted that a trial court’s ruling shall be affirmed unless there is an abuse of discretion or it is against the weight of the evidence or if the evidence has been misapplied. Prevost v. Silmon, 645 S.W.3d 503, 511 (Mo. App. W.D. 2022).
Point 1: The Appellate Court found that the trial court properly considered the eight non-exclusive factors outlined in RSMO Section 452.375.2 which requires the circuit court “determine custody in accordance with the best interests of the child.” Based on these findings, the court ordered the parties to share joint legal and physical custody, with Father having parenting time every other Wednesday through Sunday as well as on alternating holidays and alternating weeks during the summer.
The Appellate Court also noted that the trial court’s findings were not against the weight of the evidence since Father did not demonstrate that the trial court “could not have reasonably found, from the record at trial, the existence of a fact that is necessary to sustain the judgment.” Ivie v. Smith, 439 S.W.3d 189, 206 (Mo. banc 2014). “
Point I denied.
Point 2: Since Point I was denied, Point II fails as well.
