HUNTER v. BERNHARD (2026)

OPINION

Brandi Hunter (Mother) and Frank Bernhard (Father) share one child together, born in 2017. The parties lived together in California for a time but eventually separated and in December 2021, the Superior Court of Yolo County, California issued its child custody judgment. Soon after, and with the California court's permission, Mother and Child moved to St. Louis County. Father followed them some months later and on December 15, 2023, in the circuit court of St. Louis County, he moved to modify the California custody judgment in which he requested sole legal custody and that he be designated the residential parent since he was unhappy with Child's education and experience at the City Garden Montessori charter school in the City of St. Louis. The trial court ordered joint physical custody with equal parenting time, designated Father as the residential parent for education and mailing purposes, and awarded Mother child support.

Mother now appeals asserting: (1) that the trial court abused its discretion in failing to compel the testimony of a Children's Division employee regarding the Division's investigation into Father's claim that Child's teacher asked to see Child's genitals; (2) that the court erred in awarding joint physical custody and designating Father as the residential parent because Father failed to show that there was a change of circumstances under section 452.410 ¹ ; (3) that the court abused its discretion in calculating its child support determination because Father produced no evidence of his disability; and (4) that the trial court failed to give full faith and credit to the California judgment by failing to make its child support retroactive since the California court reserved jurisdiction “to make a modification of support retroactive to the date of Father's first employment.”

We affirm. First, the court did not abuse its discretion by not compelling the Children's Division employee to testify regarding the Division's investigation because other witnesses testified that the Division found the claim to be unsubstantiated; second, the court did not err in awarding joint physical custody or in designating Father as residential parent because Father's move to St. Louis constituted a change of circumstances under 452.411 and the modification was in Child's best interests; third, the court did not abuse its discretion by not awarding more child support to Mother because there was no evidence that Father was voluntarily on disability to evade paying child support; and fourth, the court did not err by failing to give the California judgment full faith and credit because the court attained jurisdiction to modify the judgment with respect to financial issues and child custody issues since both parties and Child resided in Missouri.

Background

On December 17, 2021, the Superior Court of Yolo County, California issued its custody and child support judgment which awarded Mother sole physical custody and joint legal custody to the parties. The court ordered Mother to pay Father child support since he was unemployed at the time of trial, but it reserved jurisdiction to modify support retroactive to the date Father became employed. Father failed to notify the court after becoming employed as required by the judgment. The judgment also allowed Mother to move to Missouri with Child even though Father remained in California.

In October 2022, Father purchased a home in Wildwood, Missouri to be closer to Child and over one year later, in the St. Louis County circuit court, Father moved to modify the California court's judgment. Mother moved to dismiss the action three different times asserting that Missouri did not have jurisdiction because Father still resided in California and he had also moved to modify the judgment in Nevada County, California.

The court denied all three motions finding that Mother and Child lived in Missouri for most of Child's life and Father had lived here since 2022 and under sections 452.800(2) and 452.765, the court had jurisdiction to modify the judgment. In its final order on the matter, after communicating with its counterparts in the Nevada County and Yolo County courts, the court found that it had jurisdiction over all financial aspects of this case including any enforcement actions and modifications arising from the orders of the California courts. Mother then filed her own motion requesting child support modification since Father had become employed. She also requested that the court order child support retroactive to Father's first date of employment in June 2022.

At trial, the parties adduced the following relevant evidence: Mother enrolled Child at City Garden Montessori School, a state-approved charter school in the City of St. Louis. Child attended City Garden for the 2023/2024 and 2024/2025 school years. Mother was happy with Child's education and social development at City Garden and believed Child to be thriving. Father, however, testified he was not happy with Child's development at City Garden because he was behind in certain subjects and demonstrated concerning behaviors such as crafting in his classroom's coat closet rather than completing his school assignments and searching for inappropriate content on the internet during class. He did not believe Child was thriving in City Garden's learning environment especially since he was behind by a whole grade level in some subjects. Father was concerned that if they did not intervene soon, Child could face more issues down the road. He also claimed Child was anxious and displayed a lack of readiness to engage in his school. Finally, he testified that he was concerned about Child's social skills with his peers. Father believed that the Rockwood school district, where he resided, would be a better fit for Child.

In the fall of 2023, Father alleged that Child told him his teacher asked to see his genitals. Father testified that the Missouri Department of Social Services investigated the claim and found it to be unsubstantiated. Child's teacher was gender-fluid and Father testified Child was confused about the teacher's gender identity. He observed Child googling whether his teacher was a boy or a girl and whether his teacher had male or female parts. Father believed that it was inappropriate for a child that age to be exposed to such gender identity issues from an educator. Father asked if Child could be moved to a different classroom, but the CEO of City Garden refused due to space issues and she preferred not to move students mid-year.

Sierra Holt, a Children's Division employee who investigated Father's allegation against Child's teacher, took the stand but testified that her supervisor told her she could not discuss her report. Mother requested the court compel Holt's testimony about her report but the court declined. Thus, in an offer of proof, Holt testified that while she did not have the report in front of her, she believed she had found Father's claim to be unsubstantiated. The kindergarten principal at City Garden also testified that to her knowledge, Father's claim was unsubstantiated.

Father further expressed concerns about Child's health. He claimed Child was “morbidly obese,” gaining nearly fifty pounds between October of 2022 and February 2025. Child also has seasonal allergies and mild asthma for which Father gives him medicine as needed. Mother disputes that Father takes Child's diagnoses seriously and claims he does not give Child the medicine.

Father also testified that Mother was unwilling to work with him. He testified that at his house, Child has an iPad with his supervision that he would allow Child to use to contact Mother whenever he wanted. He believed time with both parents was in Child's best interests and wanted Child to have a meaningful relationship with each parent.

As for his work and income history, Father was a pilot for American Airlines but was on medical disability leave pending a hip surgery. He had been on disability since October 27, 2023. He receives long-term disability from American Airlines totaling $3,000 per month. Father predicted he would return to work within two years. He was also a private flight instructor but his lessons were sporadic. He estimated he earned $50 per month from this job. He also worked at Hidden Valley Ski Resort.

Finally, the guardian ad litem (GAL) recommended 50-50 joint physical custody with Father as the residential parent for education and mailing purposes but believed Mother should have sole legal custody because the parties did not share a commonality of beliefs and they lacked communication skills.

The GAL also testified that during their meetings, Child discussed his struggles with his teacher and raised questions about the teacher's gender and gender identity. He also mentioned that Child googled certain terms that could produce inappropriate images or videos. The GAL expressed concern that Child was developing an unhealthy fixation about his teacher and opined that changing schools would be in Child's best interests. The GAL also noted that Chesterfield Elementary would provide a better education based on data comparing the outcomes of students at each school and even without the issues with the teacher, he would make the same recommendation.

After trial, the court modified the judgment by awarding Mother and Father joint physical custody, by awarding Mother sole legal custody, and by designating Father as the residential parent for education and mailing purposes. The court also ordered Father to pay $561 per month in child support to Mother. This appeal follows.

Standard of Review

Point One – Abuse of Discretion

We review the admission or exclusion of evidence for an abuse of discretion. Interest of K.M.D., 726 S.W.3d 87, 99 (Mo. App. 2025). An abuse of discretion occurs when the court's decision is clearly against the logic of the circumstances and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. Id. (internal quotations omitted). If reasonable persons can differ about the propriety of the trial court's action, it cannot be said the court abused its discretion. Id. Moreover, we will not reverse unless that error materially affected the merits of the action. Id. An appellant cannot demonstrate error in the exclusion of evidence unless she also shows prejudice. Watson v. City of St. Peters, 599 S.W.3d 479, 490 (Mo. App. 2020).

Points Two and Three – Murphy v. Carron

We review child custody and child support determinations according to the principles set forth in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976) – that is, we will affirm the trial court's judgment of dissolution unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Thorp v. Thorp, 390 S.W.3d 871, 877 (Mo. App. 2013). “[W]e presume that the trial court considered all of the evidence.” Cox v. Cox, 504 S.W.3d 212, 220-21 (Mo. App. 2016). We view the evidence and its reasonable inferences in the light most favorable to the judgment. S.C.J.M. v. B.J.N.S., 667 S.W.3d 673, 676 (Mo. App. 2023). We cannot ignore the trial court's resolution of conflicting evidence, and we must defer to the court's ability to assess witness credibility. Cox, 504 S.W.3d at 221. Moreover, a child support provision will be upheld unless the trial court abused its discretion. Denney v. Winton, 184 S.W.3d 110, 114 (Mo. App. 2006).

Point Four – De Novo

We review questions of law de novo. Burke v. Hutto, 243 S.W.3d 431, 433 (Mo. App. 2007).

Discussion

Point One

Mother first claims the court abused its discretion in failing to compel Sierra Holt to testify about her investigation into Child's allegation because the court had the authority to do so and the court based its residential designation decision on Father's assertion as to Child's claim. We find no abuse of discretion or prejudice because the evidence Mother sought to adduce through Holt came in through other testimony and the court based its residential designation decision on other matters.

“Any error in the exclusion of any evidence is [ ] harmless if the same facts are shown by other evidence.” Gordon v. Monsanto Company, 702 S.W.3d 506, 510-11 (Mo. App. 2024). A trial court may exclude cumulative evidence. Myers v. Farm Bureau Town & Country Ins. Co. of Missouri, 345 S.W.3d 341, 350 (Mo. App. 2011).

Mother's claim that the court denied her the opportunity to adduce evidence that Child's allegation was untrue is belied by the record. Both Father and the kindergarten principal at City Garden testified that they believed the Division had found the Child's allegation to be unsubstantiated and the GAL testified that Child told him the allegation was untrue. Moreover, Father conceded that Child may have invented the story.

Despite Mother's claim regarding the role of Child's allegation in the court's judgment, the record shows that the court designated Father as the residential parent based on Father's belief that Child was not well served at City Garden and Child was not prospering there based on his school records. It also noted that the elementary school where Father lived was “one of the finest elementary schools in the state.” Thus, Mother has failed to show that the exclusion of Holt's testimony materially affected the merits of the case or that it prejudiced her. Watson, 599 S.W.3d at 485; Gordon, 702 S.W.3d at 510-11. We deny this point.

Point Two

Mother next claims the court erred in modifying custody from Mother's sole physical custody to joint physical custody and designating Father as the residential parent because there was no change of circumstances as required for such modification. We find that Father's move to Missouri was a change of circumstances under section 452.411 and that the modification was in Child's best interests.

Section 452.410 states that a court shall not modify a prior custody decree unless it finds “that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child.” The change in circumstances must be substantial. Clayton v. Sarratt, 387 S.W.3d 439, 446 (Mo. App. 2013). When either parent moves to another state, that change satisfies the change of circumstances requirement under section 452.410 and the court may modify the decree. Section 452.411; LaFon v. LaFon, 811 S.W.2d 360, 361 (Mo. banc 1991) (where Father's move from Colorado to Missouri constituted a substantial change of circumstances). Thus, Father's move from California to Missouri constituted a substantial change of circumstances warranting modification. Id.

Next, then, we must consider whether the modification was in the best interests of Child and we find that it was. In making its best interests determination, the court must consider the eight statutory factors set forth in section 452.375.2 and as relevant to the matter.

Here, the trial court made findings for each relevant factor. It found that since Father's move, both parents were well suited to fulfill their parental duties and it was in Child's best interests to have a frequent and meaningful relationship with both. It further found that Mother had failed to fully allow Child to have frequent and meaningful contact with Father because she was reluctant to let Father have additional parenting time after he moved to Missouri. Miers v. Miers, 53 S.W.3d 592, 597 (Mo. App. 2001) (a parent's history in denying the other parent meaningful contact with the child is a proper factor for the trial court to consider in determining custody).

Mother disputes that she denied Father his visitation or time with Child. But we cannot ignore the court's resolution of conflicting evidence and we defer to its credibility findings. Cox, 504 S.W.3d at 221. Moreover, the record shows that even though Mother and Father do not get along, Father loves Child and they have a great relationship. To deprive Child of a meaningful relationship and time with his dad would not be in his best interests under these circumstances.

For her part, Mother claims that joint custody is not in Child's best interests because Father refuses to acknowledge that Child has asthma and fails to give Child his medication. Father, however, testified that Child has mild asthma that they treat with two prescribed medications and two over-the-counter medications and he “dutifully” gives his son the medicine. Child has never been hospitalized due to his asthma, but sometimes he must take an oral steroid which both parents testified is not ideal. Again, the court resolved this conflicting testimony by finding that Child received the appropriate medical care, that Father generally cooperated with the medical care. We defer to the court's ability to assess witness credibility and its resolution of conflicting testimony. Id.

As for Child's adjustment to his school, which was relevant to the residential designation, the court noted that the parties disagreed about Child attending City Garden. Father believed the school was not in Child's best interests because his teacher is gender-fluid which confused Child. Moreover, school records showed that Child did not meet the standards for some subjects such as math. The GAL also testified that he believed City Garden was not the best fit for Child. Mother disputed the evidence on this issue and testified that Child excelled at school, both socially and academically. She also introduced testimony from the school CEO that Child was doing well at school, although the CEO did not have everyday interactions with Child. After weighing this conflicting evidence, the court found that changing schools to the Rockwood school district would be in Child's best interests. Id. And we find that there was substantial evidence in the record to support the court's ruling, i.e., school records, Father's testimony, and the GAL's testimony.

Point Three

Third, Mother claims the court abused its discretion in calculating her child support award because Father produced no evidence of his purported disability and thus his earning potential as a commercial airline pilot was much higher than $3,000 per month. We disagree. Although Father did not provide evidence of his disability besides his testimony, he produced evidence of his disability income from American Airlines and he testified that he planned to resume his career after he recovered from hip surgery.

Section 452.340 directs courts on how to calculate child support. The court must consider all relevant factors including the financial needs and resources of the child and parents, the standard of living the child would have enjoyed if his parents had not separated, the physical and emotional condition of the child and his educational needs, the child's physical and legal custody arrangement, and the reasonable work-related childcare expenses of each parent. Section 452.340.1(1)-(6).

“[T]he non-custodial parent may not use health problems as an excuse for not meeting support obligations, unless there is substantial evidence that the parent is incapable of performing any work.” Overstreet v. Overstreet, 693 S.W.2d 242, 246 (Mo. App. 1985). “The trial court must consider the ‘financial resources’ of the parties in determining the amount of child support to be paid by the non-custodial spouse, including ‘the earning capacity of a spouse who is not employed.’ ” Id.; section 452.370.1. Further, “[t]he trial court may impute a higher income to the non-custodial parent than he is actually earning, if the evidence shows the parent has the capacity to earn more, but is voluntarily refusing to do so.” Id. The “non-custodial parent ‘may not escape his responsibility to his family or stymie justified support for them by deliberately limiting his work to reduce his income.’ ” Id. But, courts should not impute income where the record does not establish an attempt to evade parental responsibilities. Peniston v. Peniston, 161 S.W.3d 428, 434 (Mo. App. 2005).

Father testified that he had been receiving $3,000 per month in medical disability payments from American Airlines since October 2023. He predicted that he would go back to his career as a pilot within two years after undergoing the surgery he had already scheduled.

Thus, this scenario is much different than the one in Overstreet, a case upon which Mother relies. There, the father, who did not share custody with the mother at all, chose to retire early based on his fear that he would lose his benefits and did not seek other employment. 693 S.W.2d at 244. And in Overstreet, the court reversed the trial court's judgment reducing the father's child support obligation because the father did not show by substantial evidence that his lack of employment or loss of income constituted a substantial and continuing change of circumstances. Id. at 245.

Further, Overstreet involved a “non-custodial” father while here, Father and Mother share equal physical custody. Regardless, there is no evidence Father attempted to use his disability to shirk his support obligations and as far as we know, he has been paying his obligations. Peniston, 161 S.W.3d at 434. Neither party presented evidence that Father is voluntarily refusing to earn more money. Overstreet, 693 S.W.2d at 246.

We deny this point.

Point Four

Finally, Mother argues the court failed to give full faith and credit to the California judgment which purported to reserve jurisdiction to modify support retroactive to the date Father became re-employed. We disagree because both parents and Child resided in Missouri and therefore Missouri has jurisdiction to modify the judgment as it saw fit.

Both Missouri and California have adopted and codified the Uniform Interstate Family Support Act (UIFSA). RSMo sections 454.1500 to 454.1728; California Family Code sections 5700.101 to 5700.905. UIFSA controls the establishment, enforcement, and modification of child support orders across state lines. Whitton v. Whitton, 707 S.W.3d 42, 47 (Mo. App. 2025). “The UIFSA is intended to avoid problems arising from multiple orders in multiple states, and thus the UIFSA provides that only one state's child support order governs at any one time.” Id. (quoting Swanson v. Hernandez, 544 S.W.3d 315, 320 (Mo. App. 2018)). Where a state has issued a support order pursuant to UIFSA, that state has continuing exclusive jurisdiction over the order and no other state may modify that order as long as the issuing state retains jurisdiction. Id. at 47-48 (emphasis added).

California Fam. Code section 5700.205 provides in relevant part that “[a] tribunal of this state that has issued a child support order ․ shall exercise continuing, exclusive jurisdiction to modify its child support order if the order is the controlling order and ․ at the time of filing of a request for modification this state is the residence of the obligor, the individual obligee, or the child whose benefit the support order is issued.”

Here, both parents and Child moved to Missouri and thus California lost continuing, exclusive jurisdiction. Id. The trial court here took the initiative to communicate with its judicial counterparts in both California courts (Yolo County and Nevada County) which had presided over this matter before issuing its order describing the three judges’ consensus that this court in Missouri “shall have jurisdiction over all financial aspects of this case including any enforcement actions and modification actions arising from orders of the California courts.”

Moreover, Mother's full faith and credit argument likewise fails because she can point to no provision in the California judgment that entitles her to any relief. The California judgment simply left open the possibility that in the event a child support modification was warranted, the court could also consider making such modification retroactive. The court here was in that same position but simply declined to make the modified child support award retroactive. Morgan v. Morgan, 497 S.W.3d 359, 375 (Mo. App. 2016) (“Pursuant to section 452.340.1, the trial court is permitted to order retroactive child support at the court's discretion.”).

Point denied.

Conclusion

We affirm.

FOOTNOTES

1.   All statutory references are to the Revised Statutes of Missouri (2016) unless otherwise stated.

James M. Dowd, Judge

Rebeca Navarro-McKelvey, Presiding Judge, and Gary M. Gaertner, Jr., Judge, concur.