In the Missouri Court of Appeals
Eastern District
DIVISION TWO
DUSTYN TIENTER, ) No. ED101752
)
Respondent, ) Appeal from the Circuit Court
) of Lincoln County
vs. )
)
ANGELA (RUE) TIENTER, ) Honorable David Craig Mobley
)
Appellant. ) Filed: February 23, 2016
INTRODUCTION
Angela (Rue) Tienter (“Mother”) appeals the trial court’s judgment denying her motion
to modify the 2007 judgment and decree of dissolution of marriage between Mother and Dustyn
Tienter (“Father”). In her motion to modify, Mother sought sole legal custody and joint physical
custody of the children, D.T. and L.T. She also requested the court award Father visitation and
order him to pay reasonable child support. The court found there had not been a substantial
change in circumstances warranting modification. On appeal, Mother alleges the trial court erred:
(1) in denying her motion to modify legal and physical custody; (2) in failing to modify the
visitation schedule; and (3) in failing to award Mother child support in the event she should have
been awarded physical custody. We reverse the judgment and remand the case to the trial court.1
1
Only Mother filed a brief in this matter. Although there is no penalty for failure to file a brief,
this court must adjudicate Mother's claim without the benefit of whatever argument, if any,
Respondent Father could have made in response. Risch v. Risch, 72 S.W.3d 274, 276 (Mo. App.
S.D. 2002).
1
I. FACTUAL AND PROCEDURAL BACKGROUND
Mother and Father were married in 2000. During the marriage, they had two children, a
son, D.T., and a daughter, L.T. ("the children"). D.T. was born in 2000 and L.T. was born in
2002. In April 2007, the trial court entered a judgment dissolving the parties’ marriage. The
dissolution judgment awarded the parties joint legal custody of the children, awarded Father sole
physical custody of the children, and awarded Mother visitation. Mother had the children every
other weekend during the school year. A different visitation schedule was set forth for the
summer months, giving Mother more time with the children. Neither party was ordered to pay
child support.
In 2013, Mother filed a motion to modify custody and support. Mother claimed there had
been a substantial change in circumstances warranting a modification of the original custody
arrangement. In her motion, Mother sought sole legal and joint physical custody of the children,
with visitation awarded to Father every other weekend and overnight on Wednesday and
Thursday on the weeks when Father did not have the weekend overnight. Mother also asked the
court to order Father to pay her reasonable child support.
In January 2014, the trial court held a hearing on Mother’s motion to modify. The court
heard testimony from Mother, Father’s parents−Fran and John Tienter (“Grandparents”), Father
and his new wife, Evelyn Tienter (“Evelyn”).2 In addition, the court interviewed L.T. and D.T.
in camera. The following evidence was presented at the hearing.
A. Father’s Job and Marital Changes
Father was employed with the police department; his schedule required him to work
shifts from noon until midnight. After the parties’ 2007 dissolution, Father obtained a second
2
Throughout the opinion, we refer to Evelyn Tienter by her first name. We intend no disrespect,
but omit her last name simply to facilitate the reading and understanding of the opinion.
2
job and he worked significant overtime hours each month at the police department. As a result of
Father’s work schedule, the children spent three to four nights a week with their paternal
Grandparents.
After Father began dating and living with Evelyn, the children began spending more time
at Father and Evelyn’s home. Evelyn also worked two jobs−a full-time position and a part-time
position in the evening. Therefore, the children at times were under the supervision of Evelyn’s
teenage son. After living together for a few years, Father and Evelyn married in 2013.
B. The Children’s Relationship with Evelyn
Mother and Grandparents testified that they had concerns Evelyn was mistreating the
children. Mother stated that L.T. became upset and cried when Mother dropped her off at Father
and Evelyn’s home. Both Grandparents also noted the children became upset when they had to
go to Father’s home. In addition, Grandmother reported seeing bruising on L.T.’s arm when she
was 8; Grandmother stated L.T. indicated Evelyn had punched her. Grandfather testified that he
felt the situation in Father’s home was causing the children to be depressed. He confirmed he
saw bruising on L.T.’s arm.
Additionally, Grandfather recounted that L.T. told him about an incident where Evelyn
tried to put an earring in L.T.’s ear and smothered L.T.’s face in a pillow while L.T. screamed.
The incident was witnessed by D.T. Father testified he was called home from work after the
incident happened and saw scratches on Evelyn. Neither Father nor Evelyn denied the incident
occurred. Rather, Evelyn testified that she “ended up on top” of L.T. L.T. reported she was
“freaking out” and the incident made her uncomfortable because she was afraid it would happen
again, except “without an earring.”
3
L.T., Father and Evelyn all testified L.T. had been disciplined in Father’s home in various
ways: by Evelyn spanking her, by having her door removed from the hinges, by having her
books taken away, and by having to clean tile with a toothbrush. Father could not recall what
L.T. did to warrant being punished. He maintained, however, that the discipline was appropriate.
Grandparents approached their son regarding the children’s relationship with Evelyn.
Grandparents testified that when things did not improve, they discussed the situation with
Mother, who then contacted Father after speaking with L.T. and D.T. Mother indicated she
hotlined the alleged abuse, but after a home visit the allegations were found to be
unsubstantiated. L.T. and D.T. wrote Father a letter explaining they did not want to be alone
with Evelyn. Evelyn found the letter and told Father about it.
C. The Children’s Hygiene and Medical Care
Evidence was presented regarding the children’s hygiene and medical care. Grandparents
claimed L.T. and D.T. were going to school in dirty clothing. Moreover, L.T., who is four years
younger than her stepbrother, wore his clothing to school one day. Father admitted the children
had gone to school several times wearing the clothes that they slept in. In addition, Grandparents
and Mother claimed that they noticed the children were not showering regularly. Grandparents
purchased shampoo, conditioner, deodorant, toothbrushes, and toothpaste for the children to use.
Father acknowledged his parents had bought these items, but he stated that supplies were
available at home. Father also stated he was aware D.T. had been counseled by the school nurse
regarding his hygiene and body odor. Both Father and Evelyn acknowledged D.T.’s clothes had
been soiled by animal feces; seven cats and two dogs lived in their home.
In relation to their medical care, Father acknowledged he had not taken the children to the
dentist since the divorce in 2007. Father explained he felt the children’s school would have
4
notified him if there was a need for dental care. Father also testified that the school informed
him L.T. and D.T. needed glasses, but he did not take them to the eye doctor. Instead, Mother
helped the children obtain their glasses. Father further acknowledged L.T. had been sent to
school several times without her glasses and that D.T had worn broken glasses for two weeks
during the time of Father’s wedding.
In addition to providing for the children’s routine dental and eye care, Mother testified
she took D.T. to a podiatrist because he had been suffering from a painful, ingrown toenail.
Father conceded D.T.’s condition was ongoing and Father had not sought medical care to treat it.
Father testified that he flushed the pain medicine prescribed to treat D.T.’s condition down the
toilet because it was not contained in the prescription bottle. Also, Father admitted D.T. had
struggled with acne for over a year. Father testified he did not take D.T. to a dermatologist, but
instead treated his acne with over-the-counter remedies. Evelyn added that D.T.’s acne problem
had persisted for over three years and was not getting any better.
During 2013, L.T. had experienced stomach pain, nausea, and weight loss. Mother took
her to a physician who prescribed medication for L.T. Father explained he did not take L.T. to a
doctor for her symptoms as he did not feel her weight loss was significant.
D. Custody of the Children
When the court interviewed the children in camera, L.T. and D.T. indicated they wanted
to live with Mother. Both children claimed the situation had improved at Father’s home. D.T.
clarified things had only gotten better, though, since Mother had sought the modification. While
L.T. stated she had worked past issues and felt “safe” at Father’s home, she also testified she was
“on edge” and felt a false sense of security there, like something could happen to her “at any
minute.” With regard to interacting with Evelyn, L.T. acknowledged she had probably done
5
some “stupid things.” When asked his opinion on custody, Father stated he did not see any
reason why the court should change things, but he also testified he felt the most important
consideration in determining custody should be the children’s wishes.
E. Trial Court’s Judgment and Appeal
Following the hearing, the court entered its judgment denying Mother’s motion to modify
custody and support. The court stated it considered the testimony of each witness and “accepted
some of the testimony of the witnesses as creditable and rejected other parts of the testimony as
not creditable.” However, the court did not specifically reference any testimony or evidence
presented at trial. Instead, the court generally noted that its judgment was “consistent with the
Court’s determination of the creditability [sic] of the evidence and of the witnesses.” The court
then concluded there had not been a substantial change in circumstances warranting a
modification of the 2007 judgment of dissolution. Thus, the court did not modify the visitation
schedule or award Mother child support.
Mother filed a motion to amend the judgment or, alternatively, for a new trial. She
argued the court’s finding that there was no substantial change in circumstances was against the
weight of the evidence and not supported by credible evidence. Pursuant to Rule 78.06,3 the
motion was overruled by operation of law when the court did not rule on it within 90 days after it
was filed. Mother appeals.4
3
All rule references are to Missouri Court Rules (2014). Rule 78.06 provides: Any motion for
new trial, motion to amend the judgment or opinion, or motion for judgment notwithstanding the
verdict is overruled for all purposes if the trial court does not rule on it within ninety days after
the date the last such timely motion is filed.
4
Father filed with this court a motion to remand the cause to the trial court for further findings
and orders.
6
II. STANDARD OF REVIEW
On appeal, the trial court's judgment will be affirmed 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. Jansen v. Westrich, 95 S.W.3d 214, 217-18 (Mo. App. S.D. 2003) (citing
Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)). "We will not reverse the trial court's
judgment on the basis that it is against the weight of the evidence unless we have a firm basis for
concluding that the judgment is wrong or that it is against the logic of the circumstances."
Clayton v. Sarratt, 387 S.W.3d 439, 444 (Mo. App. W.D. 2013) (internal quotation omitted).
"When there is conflicting evidence, the trial court has the discretion to determine the credibility
of witnesses, accepting all, part, or none of the testimony it hears." McCreary v. McCreary, 954
S.W.2d 433, 439 (Mo. App. W.D. 1997) (internal quotation omitted).
III. DISCUSSION
A. Father’s Motion to Remand
Before considering the merits of Mother’s claims of error on appeal, we will address
Father’s motion to remand for further findings and orders. Father asks this Court to remand the
cause to the trial court to set out the required basis for its findings. Father did not file a
respondent’s brief; instead, he filed a “reply to appellant’s brief” in which he reiterated his
allegation that the judgment lacked the required details and again requested remand. Father
alleges that the judgment’s failure to set out findings does not properly comport with case law,
and Mo. Rev. Stat. § 452.375.6 and § 452.375.2.5
First, we note that Father did not properly preserve his claim that the trial court failed to
make the required findings by raising it in a motion to amend the judgment pursuant to Rule
5
All statutory references are to RSMo 2000 as supplemented, unless otherwise indicated.
7
78.07(c).6 See Cule v. Cule, 457 S.W.3d 858, 863 (Mo. App. E.D. 2015) (Wife waived for
appellate review her challenge to trial court's alleged failure to make statutorily-mandated
findings regarding the best interests of the children, where wife failed to address the issue in her
motion to amend the judgment). Nevertheless, we will address Father’s motion in order to
clarify certain statutory requirements related to the modification of custody.
Here, the court found there was no substantial change in circumstances. To determine
whether a modification of custody is warranted, a trial court is required to find a change in
circumstances pursuant to § 452.410.1. The finding of a change in circumstances is a threshold
matter; if the trial court finds that a change of circumstances has occurred, then the court must
take the additional step of determining whether a modification to the prior decree is in the child’s
best interests. Prach v. Westberg, 455 S.W.3d 513, 517 (Mo. App. W.D. 2015). In considering
whether a modification of custody is in a child’s best interests, the court is guided by § 452.375.
Secondly, Father alleges that pursuant to § 452.375.2 and § 452.375.6, the trial court was
required to issue written findings setting forth a detailed basis for its judgment. Section
452.375.6 provides that if the parties have not agreed to a custodial arrangement, then the court
shall include written findings in the judgment based on each of the factors listed in § 452.375.2.
M.P.P. v. R.R.E., 456 S.W.3d 69, 71 (Mo. App. E.D. 2015). However, these factors relate to a
determination of whether custody is in the best interests of the child and not to the threshold
issue of whether there was a change in circumstances warranting modification of custody. See
Parker v. Parker, 66 S.W.3d 778, 787 (Mo. App. W.D. 2002). Because the court found no
substantial change in circumstances, the additional step of considering whether the proposed
6
Nor does Father allege that either party requested the court make findings pursuant to Rule
73.01(c).
8
modifications were in the best interests of the children, according to the factors listed in §
452.375.2., was not required.
Likewise, § 452.410.1 does not require written findings when determining the threshold
issue of whether modification is warranted due to a change in circumstances. § 452.410.1; See
Wood v. Wood, 391 S.W.3d 41, 46 (Mo. App. W.D. 2012) (“Although Section 452.410.0
required the court to find a change of circumstances before it could modify the parties’ parenting
time, the statute did not require the court to make written findings identifying the facts that
constituted the change of circumstances.”).
Finally, in his motion, Father argues the judgment does not comport with case law.
Father cites to the following three cases in support of his argument: M.P.P v. R.R.E, 456 S.W.3d
69 (Mo. App. E.D. 2015); Jett v. Jett, 468 S.W.3d 382 (Mo. App. S.D. 2015); and Buchanan v.
Buchanan, 167 S.W.3d 698 (Mo. banc 2005). These cases are not instructive. All three involve
the appeal from an original custody decree where the court was required to determine the best
interests of the child and set forth written findings based on the factors listed in § 452.375.2.
These cases do not involve a modification of custody. Here, in contrast, the issue involves a
motion to modify the court’s prior custody decree where the parties agreed to the custodial
arrangement. Thus, even assuming, arguendo, that Father had preserved his claim, we find no
merit in his assertions and deny his motion to remand.
B. Substantial Changed Circumstances
Here, Mother argues three points of error on appeal. We do not address Points II and III
as Point I is dispositive. In Point I, Mother asserts the trial court erred in denying her motion to
modify legal and physical custody. Specifically, Mother argues the court erred in finding there
had not been a substantial change in circumstances warranting a modification. Mother contends
9
she proved by competent evidence that there had been a substantial change in circumstances. In
other words, framed within our standard of review, Mother essentially argues the trial court’s
judgment was against the weight of the evidence. This Court must exercise extreme caution in
setting aside a judgment as against the weight of the evidence and will do so only upon a firm
belief that the judgment was wrong. See Scherder v. Sonntag, 450 S.W.3d 856, 860 (Mo. App.
E.D. 2014). We hold that firm belief here.
Section 452.410.1 provides the standard for modifying a prior custody decree. Section
452.410.1 states that a court shall not modify a prior custody decree unless it finds a change has
occurred in the circumstances of the child or her custodian and that modification is necessary to
serve the child's best interests. § 452.410.1. Thus, finding a change in circumstances is a
threshold matter. Moreover, the type of custody modification requested determines the nature of
the change in circumstances required. If a movant seeks a drastic change in the custodial
arrangement, then a substantial change in circumstances is required. Russell v. Russell, 210
S.W.3d 191, 197 (Mo. banc 2007). See also Prach, 455 S.W.3d at 516 (“If a motion to modify
seeks to change the ‘custody’ of the children, for example, from joint legal or physical custody to
sole legal or physical custody or from sole custody in one parent to sole custody in the other
parent, the ‘change in circumstances’ must be substantial.”). In contrast, if a motion to modify
seeks only changes in terms related to the custody arrangement, such as a change in the parenting
time schedule, the plain language of the statute controls and the change in circumstances need
not be substantial. Prach, 455 S.W.3d at 516.
Here, the 2007 dissolution decree granted the parties joint legal custody of the children
and awarded sole physical custody to Father. Mother now seeks sole legal and joint physical
10
custody of the children. Thus, the modification sought by Mother was a drastic change that
required a finding of a substantial change in circumstances.
Missouri appellate courts have considered several factors to determine whether a
substantial change in circumstances has occurred. Two factors relevant to this case are Father’s
change in employment and marital status. McIntosh v. McIntosh, 400 S.W.3d 860, 863 (Mo.
App. E.D. 2013) (Changes in employment and marital status are substantial changes that can
support modification of a child custody order). See, e.g., Wilson v. Wilson, 873 S.W.2d 667, 670
(Mo. App. E.D. 1994).
Here, Father obtained a second job after the divorce, worked significant overtime hours at
the police department, and changed his marital status. It is uncontested that these changes
resulted in the children spending less time with Father and more time with Grandparents and
Evelyn. There was evidence from Mother, Grandparents and the children that L.T. and D.T. were
mistreated by Evelyn while in her care. Due to these circumstances, the children wrote Father a
letter indicating they did not want to be alone with Evelyn.
Two other important factors considered in determining whether a substantial change in
circumstances has occurred are the disregard of a child’s hygiene needs and medical care.
Parker, 66 S.W.3d at 783-85. Mother and Grandparents testified that Father neglected the
children’s hygiene as the children wore inappropriate and dirty clothing to school and did not
shower regularly. Grandparents testified that they purchased toiletries for the children to use at
Father’s home. Mother and Grandparents also testified that Father failed to address the
children’s medical needs. Father did not take the children to the eye doctor and had not taken the
children to the dentist since 2007. Father also failed to properly address other medical needs of
the children. Instead, Mother obtained medical treatment for L.T. and D.T.
11
We recognize that the trial court has the discretion to determine the credibility of
witnesses’ testimony, accepting all, part, or none of the evidence it hears. However, even if the
trial court found the conflicting testimony presented by Grandparents, Mother, and children not
credible, we still find the record provides overwhelming evidence of a substantial change in
circumstances. Father’s admissions alone conclusively establish a substantial change in
circumstances. Father is bound by his own testimony where it constitutes a judicial admission.
Dawson v. Dawson, 366 S.W.3d 107, 115 (Mo. App. W. D. 2012). A party’s testimony in court
may amount to a judicial admission if the party testifies unequivocally and understandingly to a
material fact within his own knowledge. Rodgers v. City of St. Louis, 688 S.W.2d 42, 43 (Mo.
App. E.D. 1985).
Father testified unequivocally and understandingly to several material facts. Father stated
he took an additional job after the divorce and worked overtime. He acknowledged this resulted
in the children spending much less time with him and often being with Evelyn. He
acknowledged an incident where he had to leave work and come home because of an altercation
between L.T. and Evelyn−and that he saw scratches on Evelyn. Father confirmed L.T. was
disciplined in the following ways: by having her door removed from the hinges; by having her
books taken away; by having to clean tile with a toothbrush; and, by being spanked by Evelyn.
The evidence indicates Father’s additional employment and change in marital status impacted the
time Father spent with the children, and that the children’s relationship with Evelyn was
precarious at best.
As to the neglect of the children’s hygiene needs, Father acknowledged the following:
that the children went to school in clothes they slept in; that L.T. had worn her 4-year-older
12
stepbrother’s clothing to school; that D.T had animal feces on his clothing; and, that D.T. had
been counseled at school regarding his hygiene and body odor.
Moreover, with respect to the children’s medical care, Father testified: that he had not
taken L.T. or D.T. to the dentist since the divorce; that he did not get glasses for the children
even after the school informed him that the children needed them; that L.T. went to school
several times without her glasses; that D.T. wore broken glasses for two weeks; that Father did
not obtain treatment for D.T.’s ingrown toenails or acne; that Father flushed D.T.’s medicine
down the toilet; and, that Father did not take L.T. to the doctor for her stomach problems and
weight loss. “A parent's failure to provide proper medical care can . . . equate to a change of
circumstances sufficient to justify custody modification.” Guier v. Guier, 918 S.W.2d 940, 948
(Mo. App. W.D. 1996).
In some instances, Father placed little or no significance on the children’s medical needs.
Father offered excuses for his delays in obtaining treatment for the children. However, he
provided no evidence he properly cared for the children on other occasions and that the incidents
he testified about were just aberrations. We find that the evidence establishes the children’s
medical and hygiene needs were not being properly met by Father.
Thus, the testimony adduced at the hearing establishes a substantial change in
circumstances. Even if no single factor discussed above would have alone established changed
circumstances, the combination of the factors clearly does. Johnson v. Johnson, 758 S.W.2d
721, 725 (Mo. App. W.D. 1988); In re Marriage of Scobee, 667 S.W.2d 467, 470 (Mo. App.
S.D. 1984) (a combination of individually insufficient factors may establish changed
circumstances).
13
Furthermore, in contrast to the substantial evidence presented of changed circumstances,
our review of the record reveals very little evidence in support of the trial court’s judgment. The
evidence in favor of the judgment is as follows: the children generally stated that things had
improved in Father’s home recently; some of L.T.’s testimony downplayed the difficulties that
arose between her and Evelyn; Father and Evelyn denied allegations that Evelyn mistreated the
children; Father and Evelyn maintained that L.T. had been disciplined appropriately; Mother’s
hotline allegation of abuse was deemed unsubstantiated; and, Father claimed toiletries were
available at his home to meet the children’s hygiene needs.
We find this limited of evidence in favor of the judgment is not sufficiently probative
when considered in the context of the totality of the evidence presented, particularly Father’s
testimony. As a result, the trial court's finding of no change in circumstances was against the
weight of the evidence and against the logic of the circumstances.
Although we find the threshold requirement of a substantial change in circumstances has
been met, in order to modify custody, the trial court must further determine whether modification
is in the children’s best interests. Here, the trial court did not make such a finding.7 Therefore,
we reverse and remand for a determination of whether a modification of custody is in the
children’s best interests and to set forth its specific findings in accordance with § 452.375.2.
Point I is granted. Because we remand, we need not address Points II and III, which seek
7
We note that although the trial court found no substantial change of circumstances warranting
modification and denied Mother's motion on that basis, the court's written judgment contains an
additional finding, sans analysis, that it considered all relevant factors set forth in § 452.375.2.
As noted earlier these factors are used to determine whether a modification is in a child’s best
interest. While the court did note in a cursory fashion that it considered the factors, it did not
discuss the factors and failed to make an explicit finding as to whether modification was in the
children’s best interests.
14
visitation for Father and child support for Mother in the event the custody arrangement is
modified.
IV. CONCLUSION
The trial court's finding that there was no substantial change in circumstances warranting
modification is against the weight of the evidence. The judgment is reversed and remanded for
the trial court to determine whether modification is in children’s best interests.
_________________________________
Angela T. Quigless, Judge
Philip M. Hess, P.J., and
Gary M. Gaertner, Jr., J., Concurs.
15