Posted by Chip Gentry |
In attempting to modify a current custody order, you are limited to presenting only facts that have occurred since the entry of the most recent custody order. If you don’t present the evidence the first time, you cannot attempt to use this evidence to support a request to change the custody schedule.
This is exactly what happened to Sean Wigglesworth, and it ultimately prohibited him from getting unsupervised time with his daughter. Mr. Wigglesworth is unable to argue that the restricted, supervised visitation that he has with his daughter is unwarranted even though the Children’s Division findings of abuse have been reversed. The Missouri Court of Appeals, Eastern District, reversed the decision of the St. Louis County Circuit Court granting a modification of child custody to the father after the mother, Marie Wigglesworth, appealed.
The couple originally divorced in 2011. In 2013,the father became the subject of a Children’s Division investigation that ended with findings that he sexually abused their daughter. Following these findings, mother sought a modification to obtain sole custody. In April of 2014, the Children’s Division findings of abuse by father were reversed. On July 21, 2014, the parties, in the modification case, agreed to a parenting plan giving mother sole custody and giving father restricted supervised visitation only.
Two years later, father sought a modification to joint custody. In 2018, after a trial, the court granted the modification judgment finding that there was little support for the restrictive visitation given the reversal of the abuse findings. On April 30, 2019, that 2018 modification judgment was reversed because of the principal “res judicata”.
Res judicata is a Latin term that translates to “a thing adjudged.” The principal of res judicata prohibits parties from re-litigating matters that either were litigated or could have been litigated in a prior suit. In order for res judicata to apply, the prior suit must have resulted in a final judgment on the merits that covers all claims that are being brought in the second suit.
Before a court can modify an existing custody plan, the court must determine if a change in circumstances has occurred since the most recent judgment. The concept of res judicata in modification proceedings is codified in Missouri under section RSMo. § 452.410.1. Based on this provision, the court, in finding a change in circumstances, is limited to considering only facts that occurred after the entry of the prior decree or that were unknown to the court at the time of the prior decree.
In Wigglesworth, the court, in changing the custody from mother to father in the 2018 modification judgment, relied heavily on the fact that the Children’s Division findings of sexual abuse were ultimately reversed. The 2018 court felt that since father no longer had these findings of abuse against him, the restricted supervised visitation schedule adopted in the 2014 judgment was not warranted. The 2018 court, however, was not permitted to consider this fact in rendering a modification because the reversal of the Children’s Division findings occurred on April 21, 2014, several months prior to the court’s July 22, 2014 decree.
On appeal, father attempted to argue that the fact that the Children’s Division findings were reversed were not known to the court prior to entering the 2014 decree and could, therefore, properly be considered by the 2018 modifying court. The Appellate Court found that the record showed differently and was therefore not persuaded.
This prohibition applies regardless of whether or not you are represented by counsel. If you choose to represent yourself, but then decide months after the divorce that you don’t like the parenting plan because of the other parent’s behavior during the marriage, you are stuck with presenting only the facts that have arisen since the divorce. You cannot come back and argue that during the marriage your spouse was abusive or a bad parent. The parties and the court are deemed to have taken all of the evidence that occurred prior to the judgment into consideration in entering the decree. To protect your ability to present important information to the judge, consult an attorney the first time; otherwise, even an attorney may not be able to help you tell the judge important things about your case.