Alt v. Alt , 947 S.W.2d 433 ( 1997 )

ULRICH, Judge.

Sherry Alt Coleman appeals the order of the trial court modifying the parties’ March 1, 1993 Decree of Dissolution. The order follows rehearing by the trial court on remand from the Missouri Court of Appeals, Western District. Ms. Coleman claims the trial court erred in interpreting this court’s directive on remand and in modifying the joint child custody plan to alternating two week periods.

The judgment is affirmed.

Sherry Alt and Edward Alt were divorced on January 25, 1993. The parties were awarded joint legal and physical custody of their minor child, Mikaela Leah Alt. Each party received custody of the child for one half of the week, with transfers taking place on Wednesdays. Ms. Coleman filed her motion to modify on November 9,1993. After a hearing, the trial court modified the prior decree, granting Ms. Coleman sole physical custody of Mikaela with reasonable visitation rights to Mr. Alt. Mr. Alt appealed the judgment.

On appeal this court found that the evidence did not support a change from joint physical custody to sole physical custody. Alt v. Alt, 896 S.W.2d 519, 522 (Mo.App. 1995). The case was remanded to the trial court for adjustments to the joint custody plan necessary to address the parties’ particular problems.

On remand, further evidence was adduced. Both parties have relocated to Kansas City, Missouri. They remain within a two mile radius of each other and Mikaela’s school. Mr. Alt is still employed in St. Joseph and has a 40-45 minute commute to work. Ms. Coleman is now employed part time as a secretary in the Kansas City area. This part time employment allows her to take Mikaela to school and to retrieve her when dismissed in the afternoon. Both parties testified that Mikaela is doing well, both academically and socially, since the last hearing and that they have been complying with the court’s modification order of February, 1994.

The trial court, upon remand and in accordance with this court's decision, restored joint physical custody. The court ordered custody to Mr. Alt for two weeks, then to Ms. Coleman for two weeks, alternating custody every two weeks thereafter, with transfers of custody to occur Friday after school.

I. The Trial Court Did Not Err in Interpreting this Court’s Decision on Remand

Ms. Coleman’s first point on appeal claims the trial court erred in interpreting this court’s direction on remand. She asserts that the Court of Appeals specifically found that there was evidence to change the particular terms of the joint custody plan and that the court directed the trial court to consider adjustments which may be made to the specifics of the plan and permitted the court to take into account circumstances which had arisen during the pendency of the case on appeal. In so doing, she argues that the trial court was not limited to awarding joint custody.

The judgment of the trial court will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc.1976).

The evidence from the first hearing on the motion to modify revealed that the existing child custody plan caused inconvenience and confusion to the parties. This court in Alt v. Alt, 896 S.W.2d 519 (Mo.App.1995), concluded that “if the child were transferred less frequently and at a time that would involve less confusion as to school matters, the opportunities for confusion would be substantially reduced.” Id. at 522. The court, therefore, remanded for restoration of the joint custody arrangement and for measured modification of the joint custody plan by the trial court. This court’s directive also stated that no greater adjustments should be made than are reasonably necessary to resolve the identified problems. Id. at 523.

While the trial court has discretion to structure the modification directed by the mandate of this court, any action taken by the trial court must be in accordance with the mandate and necessary to execute the judgment of this court. Manor v. Manor, 706 S.W.2d 603, 605 (Mo.App.1986). The trial court followed the directives given in the appellate opinion in making its order. No substantial change in circumstance had occurred since the first modification hearing to justify a change of joint physical custody to single parent custody. The trial court found that if the transfer of custody were made on Fridays instead of in the middle of the school week, less confusion as to homework assignments and school activities would result to those persons affected. The court modified the custody arrangement, alternating custody every two weeks at the conclusion of the school week, to reduce the frequency of transferring Mikaela’s physical custody between parents. The modified order provides both parents equal time with their child while addressing the problems that had arisen under the old custody plan. The changes were no greater than necessary to rectify the situation, as this court suggested. Therefore, the trial court did not abuse its discretion in restoring the joint custody arrangement with the modifications incorporated to correct the resulting confusion caused by frequent midweek transfers. Point I is denied.

II. The Trial Court Did Not Err in Ordering Joint Physical Custody of the Parties’ Child

Ms. Coleman also claims the trial court erred in modifying the joint custody plan by ordering alternating physical custody of the parties’ child between the parents every two weeks. Mrs. Coleman asserts that the weight of the evidence demonstrated the current arrangement with her as primary physical custodian is in Mikaela’s best interest, and the trial court did not consider the best interest of the child in ordering the alternating arrangement.

Although the trial court’s discretion was confined by this court’s opinion, the trial court is presumed to have considered all the evidence on rehearing and to have awarded custody in the best interest of the child. Garcia-Otero v. Garcia-Otero, 770 S.W.2d 486, 487 (Mo.App.1989). The trial court’s order was not against the weight of the evidence. Point II is denied.

The judgment of the trial court is affirmed.

STITH, J. concurs.