We note as a threshold matter that Father's brief misstates the applicable standard for custody modifications by contending that the evidence must show a "substantial and continuing" change in the circumstances of the custodial parent or children. A "continuing" change is not required. In re McIntire, 33 S.W.23d 564, 569 (Mo. App. 2000). Further, as our Supreme Court has recently clarified, the change in circumstances that must be shown need not be "substantial" where, as here, the modification ordered is from sole custody to joint custody. Russell v. Russell, 210 S.W.3d 191, 194 (Mo. banc 2007).(FN8)
With the appropriate standards in mind, we turn to Father's claim that the trial record contains no evidence of a change in circumstances. At trial, Mother testified that she and Father were able to communicate and make joint decisions regarding the health, education and welfare of the children for the first year following the dissolution of their marriage. Shortly before the filing of the petition and cross-motions in the present case, however, a breakdown in communication and cooperation occurred. A "breakdown of parental communication and cooperation is sufficient, in and of itself, to constitute a change in circumstances." Hollins v. Hollins, 13 S.W.3d 669, 672 (Mo. App. E.D. 2000).
Mother's testimony, apparently believed by the trial court, was to the effect that Father had abused and misused his status as legal custodian to discourage or prevent Mother's participation in decisions concerning the children. In addition, there was evidence that Father had attempted and would continue to attempt to interfere with Mother's parenting time because of his disapproval of her life choices and had even requested that her visitation be supervised. Father suggested that such supervision could consist, for example, of one of Mother's parents dropping in unannounced when Mother had the children.
Although Father contends that there was evidence that Mother's lifestyle and actions presented a danger to the children, the trial court obviously did not believe such testimony. Giving "due regard to the opportunity of the trial court to have judged the credibility of witnesses," Rule 84.13(d)(2), we find that there was substantial evidence of a change in circumstances warranting a modification of custody.
Section 452.375.4 states Missouri's public policy preference for a custody arrangement that fosters continuing contact with both parents and section 452.375.2 lays out eight factors that must be considered when determining what custodial arrangement is in the best interests of the child. Section 452.375.6 requires that when a court orders a custody arrangement that has not been assented to by the parties, the court must issue written findings "detailing the specific relevant factors that made a particular arrangement in the best interest of the child."
The original judgment of modification entered in the present case contained no discussion of what factors made joint custody in the best interest of the children involved. Father then filed a motion to amend the judgment pursuant to rule 78.07(c), requesting the entry of such findings, which the trial court granted. On appeal, Father does not challenge the substance of the amended judgment's best interest findings, but does object to the form thereof. His present claim is that those findings do not comply with section 452.375.6 and therefore do not allow for meaningful review by this court. See Davidson v. Fischer, 96 S.W.3d 160, 164 (Mo. App. W.D. 2003).
Father claims that the amended judgment in the instant case is deficient in the same sense as the judgment entered in Alberswerth v. Alberswerth, 184 S.W.3d 81, 92 (Mo. App. W.D. 2006). Contrary to Father's claim on appeal, however, that case does not require a detailed finding on each factor listed in section 453.375.2. Sufficient findings on the relevant factors are all that is required. Speer v. Colon, 155 S.W.3d 60, 62 (Mo. banc 2005).
In this case, the amended judgment added findings regarding the best interest factors contained in section 452.375.2. Those findings indicate that the fourth factor, "[w]hich parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent," favors Mother, and no other factors favor either party. While a mere "checklist" of the best interest factors indicating which factor weighs in favor of each parent is insufficient to comply with section 452.375.6, Schlotman v. Costa, 193 S.W.3d 430, 433 (Mo. App. W.D. 2006), the findings "need not mechanically discuss all eight factors listed in section 452.375.2, [but] must discuss the relevant factors in such a manner that meaningful appellate review is possible." Albersworth, 184 S.W.3d at 91.
In granting Father's motion for an amended judgment, the trial court also added a paragraph in which it made additional findings relevant to the fourth statutory factor, quoted above. That paragraph found that both parents are fit and proper to have custody and noted that "prior to the filings for this modification, the parties met quarterly to discuss the children and their activities." (Emphasis added.) The court then found that "joint legal and physical custody will best assure [that] both parents participate in such decisions affecting the health, education and welfare of the children, which the court finds to be in the minor children's best interest."
Father's argument before this court ignores the findings in this paragraph, which the court added following Father's motion for an amended judgment. As already noted, there was sufficient evidence at trial to support these findings that cooperation and communication between Mother and Father had broken down to the point that the children's best interests were not being served by the original custody arrangement.
The requirements of section 453.375.6 are not intended to be a linguistic or grammatical trap. The court's findings clearly indicate a belief that equal sharing of the responsibilities of legal and physical custody will be in the children's best interests.(FN9) Rule 84.13(b) provides: "No appellate court shall reverse any judgment unless it finds that error was committed by the trial court materially affecting the merits of the action." The judgment here permits us to engage in meaningful review. The findings made support the judgment entered, and any deficiencies therein are not material to the merits of this action.
Father's final allegation of error is not preserved for appeal. Rule 78.07(c) requires that "n all cases, allegations of error relating to the form or language of the judgment, including the failure to make statutorily required findings, must be raised in a motion to amend the judgment in order to be preserved for appellate review." Rule 55.26(a) further requires that such a motion "shall state with particularity the grounds therefore, and shall set forth the relief or order sought." While Father did file a motion to amend the judgment in this case, that motion only asserted error in the failure to make the requisite findings with regard to the modification of custody and did not in any way address the trial court's findings regarding Mother's relocation. Because that motion failed to put the trial court on notice of the error alleged in Father's third point on appeal, that alleged error is not preserved for our review.
The judgment is affirmed.
FN9. Ironically Father asks on appeal that we reverse the joint physical custody award and return the parties to their pre-modification parenting time division. That division is exactly the same but just carries a different description.
Bet he's stomping his feet still...