Case Law Update: No contempt found when action was not intentional and contumacious - standards for custody modification
The Circuit court ordered re-financing of the house after divorce. At the hearing on a subsequent contempt action, the circuit court found that failure to comply was not contemptuous because party did not have the financial ability to comply with the order. Record supports such finding. The court stated that "A party alleging contempt establishes a prima facie case for civil contempt when the party proves: (1) the contemnor's obligation to perform an action as required by the decree; and (2) the contemnor's failure to meet the obligation “The alleged contemnor then has the burden of proving that person's failure to act was not due to her own intentional and contumacious conduct."
The second point on appeal was the child custody modification. The court stated:
"'Under § 452.410.1, a court may not modify a prior custody decree unless it finds, on the basis of facts which have arisen subsequent to [that] decree, that (1) a change has occurred in the circumstances of the child or his custodian and (2) a modification of custody is in the best interests of the child."A motion to change from joint custody to sole custody requires a showing that the change in circumstances is substantial.""[T]he parent requesting the change of custody has the burden of proving the change in circumstances warranting custody modification."Thus, in ruling on a motion to modify from joint legal to sole legal custody, the trial court must first determine whether the evidence establishes that a substantial change has occurred in circumstances of the child or the child's custodian; and, if so, it must then consider whether the best interests of the child would be served by modifying custody.
A Substantial change in circumstances includes parents’ failure to communicate for eight months.
The entire opinion can be read here.