YETTER v. NAPIER (2026)

Jason Lee Napier (“Father”) appeals the April 3, 2025 judgment and order of modification of custody, parenting time, and support entered by the Circuit Court of Clay County, Missouri (“trial court”), modifying the prior parenting plan entered into in the parties’ 2020 Judgment of Dissolution. The parties agree that Father's new position in Fairfax, Virginia, constituted a change of circumstances sufficient under sections 452.410 ¹ and 452.411 to trigger modification of the prior custody decree. Nonetheless, Father argues the trial court misapplied the law when it ordered “permanent modification” because child custody modification decisions involving a deployed military parent are limited to temporary modification of child custody under section 452.412. We affirm the decision of the trial court.

Facts and Procedural History

Father and Michelle Yetter (f/n/a Speed) (“Mother”) married in 2007 and had three children (“Children”)  ² prior to their divorce in March 2020. The 2020 divorce decree and judgment ³ included a stipulated parenting plan awarding Father and Mother joint legal and physical custody of the Children. Because Mother lived in Barnard, Missouri, the parties agreed that the Children would use Father's address as their legal address in order for the Children to attend school in the Kearney School District. The parties also agreed that the Children would live primarily with Father in Kearney during the week and with Mother in Barnard during the majority of the weekends. Holidays were scheduled between the parents using an even year/odd year plan; the parents alternated weeks in the summer.

Father is a career, full time active duty member of the National Guard. Notably, the parties’ 2020 parenting plan anticipated the possibility of Father being deployed through his military service “for up to nine months in 2021.” In the original parenting plan, the parties agreed that “[a]ny time Father is deployed, the children shall be in the care of Mother” and return to Father's care “upon the completion of his deployment.”

In 2024 Father voluntarily applied for and received a transfer within the National Guard to Arlington, Fairfax County, Virginia for an assignment of at least two years.⁴ Father notified Mother that he had “recently accepted a position with the National Guard Bureau located in Arlington, Virginia,” and notified her of his intent to take the Children to Virginia for the duration of his new position. Two months later, after officially receiving his orders in June 2024, Father moved to modify physical child custody ⁵ and child support and included his proposed parenting plan in which the Children would move to Arlington, Virginia with Father and his wife.⁶ Mother responded and filed a counter-motion to modify child custody and support with a parenting plan that placed the Children with Mother in Barnard, Missouri.⁷ Father failed to file an answer to the counter-motion.

The parties’ competing motions were heard by the Family Court Commissioner (“Commissioner”) on November 6, 2024. Both parties testified at the hearing. The Commissioner issued her Findings and Recommendations on March 18, 2025, in which the Commissioner found that Father met his burden of proof to show that his desire to relocate the Children was made in good faith pursuant to section 452.377. After undertaking a detailed best interest analysis under the relevant factors pursuant to section 452.375, the Commissioner found that Father's proposed relocation of the Children to Virginia would not serve the Children's best interest. Instead, the Commissioner found that Mother's proposed modified parenting plan, in which the Children would relocate to Mother's home in Barnard, was in the Children's best interest. Father moved to amend, correct, vacate, or modify the Commissioner's findings and reopen the evidence for a new trial. Rehearing was denied. The Commissioner's findings were adopted by the trial court, and judgment was entered April 3, 2025, as a “Judgment and Order of Modification of Custody, Parenting Time, and Support.” Father then moved to set aside and amend the judgment or, in the alternative, for a new trial, specifically raising for the first-time sections 452.412-.413 (“Deployed Serviceperson's Protection Laws”) as a bar to any final order modifying child custody. Prior to the trial court ruling on Father's post-trial motion to set aside or, in the alternative, for a new trial, Father filed this appeal.

Father raises a single point on appeal arguing the trial court erred in entering its judgment as a permanent modification of the prior custody decree, because section 452.412 prohibits courts from issuing anything other than a temporary order modifying child custody arrangements during a servicemember parent's deployment.

Standard of Review

“A trial court's judgment in a child custody case will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law.” Campbell v. Campbell, 716 S.W.3d 10, 15 (Mo. App. W.D. 2025) (internal citations omitted). When determining whether the trial court misapplied the law, our review is de novo. Id.

Nonetheless, to preserve an issue for review on appeal, the trial court must be afforded an opportunity to rule on the issue. Brown v. Brown, 423 S.W.3d 784, 787 (Mo. banc 2014). Here, for the reasons discussed below, Father's point on appeal was not preserved for review. Consequently, Father's point on appeal can only be reviewed, if at all, for plain error.

This Court may review unpreserved claims of error for “[p]lain errors affecting substantial rights” if the Court finds a “manifest injustice or miscarriage of justice has resulted therefrom.” Rule 84.13(c). Plain errors are “evident, obvious and clear.” Plain error review, however, “rarely is granted in civil cases” and only when there are substantial grounds for believing the circuit court committed plain error.

Lange v. GMT Auto Sales, Inc., 708 S.W.3d 147, 154 (Mo. banc 2025) (internal citation omitted).

Analysis

Father's sole point relied on alleges that “the trial court erred in entering its April 3, 2025 modification of custody decision as a permanent judgment, because that judgment amounted to an erroneous application of the law, in that section 452.412 prohibits courts from issuing anything more than a temporary order modifying child custody arrangements during a servicemember parent's deployment.” Father first raised the Deployed Serviceperson's Protection Laws as a barrier to the trial court's order modifying child custody in his April 7, 2025 post-judgment motion seeking to set aside and amend the modification judgment. The trial court did not have an opportunity to rule on Father's post-trial motion before Father filed his appeal. Father now raises the same premise he first raised in his post-judgment motion in his sole point on appeal.

Raising an issue for the first time in a post-judgment motion “does not preserve those newly raised theories for appellate review.” Slavens v. Slavens, 379 S.W.3d 900, 904 (Mo. App. W.D. 2012) (party who moved to modify earlier child custody judgment waived argument that earlier judgment was unenforceable where party first raised issue in post-judgment motion); accord, Davis v. Davis, 582 S.W.3d 100, 106 n.2 (Mo. App. W.D. 2019) (wife did not preserve objection to property division in dissolution action where she first raised the issue in her motion for new trial).

Because the trial court never had the opportunity to correct the error Father alleges in this appeal, our review is limited to plain error. See Lange, 708 S.W.3d at 154. Moreover, Father explicitly acknowledges that, “although he disagrees with the trial court's findings and justification for modifying his custody arrangements with [Mother], he is not challenging them.” Thus, our plain error review is limited to whether the trial court's failure to state that its modification of the child custody order was temporary, and would last only for the duration of Father's National Guard service in Virginia, constituted an evident, obvious and clear error, and the alleged error resulted in manifest injustice or miscarriage of justice. See id.

We note, and the parties agree, that Missouri courts have not previously addressed the interplay between the Deployed Serviceperson's Protection Laws and this state's modification of child custody statutes. Sections 452.412 and 452.413 were enacted by the Missouri General Assembly to protect the parental rights of deployed military service members.⁸ As numerous commentators have noted, “[m]any servicemembers worry, and rightly so, that the temporary changes implemented [in a modification of child custody order] during a servicemember's deployment will become permanent following their return home.” Rachel L. Paquin, Defining the “Fit”: The Impact of Gender and Servicemember Status on Child Custody Determinations, 14 JGRJ 533, 572 (2011). To address those concerns, Missouri, along with every other state, has enacted laws designed to protect deployed servicemembers’ rights in child custody cases. See Military OneSource, Child Custody Considerations For Military Families, https://www.militaryonesource.mil/relationships/separation-divorce/child-custody-considerations-for-military-families/ (last visited May 6, 2026).

These laws provide that military service of a parent is not a basis, by itself, to justify a modification in child custody. Sections 452.412-.413.⁹ Section 452.412.2(1) goes on to state that any court order modifying child custody during an out-of-state deployment shall be temporary in nature and shall not exceed the length of the deployment. The law also directs that a party shall have an opportunity to be heard on child custody after the party returns from out-of-state deployment unless the party voluntarily waives the right to such a hearing. Section 452.412.2(2).

Father contends on appeal that the Deployed Serviceperson's Protection Laws preclude the trial court's order granting “permanent” modification of the child custody decree. In order to fall within the protection of the Deployed Serviceperson's Protection Laws, however, Father must establish that he was “deployed.”

Father was aware, prior to filing his motion to modify the custody decree, that he was transferring to a new duty station with the military but failed to allege in any fashion that his transfer in duty station constituted an “activation to military service and deployment out-of-state” or that he was entitled to the protections of section 452.412. He filed his motion requesting modification of child custody and asking permission to relocate to Virginia with the children. Mother filed a cross motion to modify, and Father failed to file an answer to that motion. During trial, Father never mentioned or argued section 452.412 was applicable to this action. Further, a search of the transcripts of the trial and motion hearings shows that the words “deploy” and “deployed” never appear and the word “deployment” appears only once during Father's testimony when he briefly mentions National Guard troops can be deployed overseas. The copy of Father's orders admitted into evidence states that his transfer is “voluntary duty,” and does not refer to Father's transfer as a “deployment.”¹⁰ It is therefore unclear whether Father's transfer constitutes a “deployment” within the meaning of section 452.412. Father bore the burden of proving that he was subject to the protections of this statute and failed to offer any evidence that his transfer fell within the provisions of the statute. For all of these reasons, Father failed to establish that the trial court plainly erred by failing to determine, sua sponte, that he was entitled to the protections of section 452.412, the sole basis under which he claims the trial court erred; thus, his point is without merit.

We also note that, although the circuit court did not formally designate its modification judgment as “temporary,” Father remains free to seek a further modification of the custody arrangements, including a return to the parenting plan previously in effect, upon the conclusion of his assignment to Virginia. The fact that a further modification remains available diminishes any claim that the circuit court's judgment resulted in a “manifest injustice or miscarriage of justice” justifying plain error review under Rule 84.13(c).

Here, the trial court specifically based its decision to modify child custody and adopt Mother's proposed parenting plan on the court's careful and multifaceted assessment of the factors to determine the best interests of the child set out in section 452.375.2. We see nothing, nor has Father identified anything, establishing facially substantial grounds that the alleged error was evident, obvious, and clear or that the alleged error resulted in manifest injustice or miscarriage of justice. We decline further review.

As Father opines in his brief, “nothing about [this case] is complicated.” In that, we agree.

Father's sole point on appeal is denied.

Conclusion

The decision of the trial court is affirmed.

FOOTNOTES

1.   Unless otherwise noted, all statutory references are to the Revised Statutes of Missouri in effect in 2025, the date of the trial court's judgment.

2.   Pursuant to Missouri Supreme Court Operating Rule 2.02(c)(3), we do not include names of witnesses or other individuals who are not parties.

3.   The parties’ original 2020 divorce decree was entered in the Circuit Court of Clay County, Missouri (“trial court”).

4.   Father acknowledged that his orders are for three years but testified that he believed he would need to stay in Virginia only two years.

5.   Neither party asked to modify legal custody.

6.   Both Father and Mother have new spouses and children/step-children with their new spouses.

7.   The parties’ proposed plans largely mirrored one another to propose primary physical custody with one parent, summers with the non-custodial parent, and alternating holidays and vacations.

8.   See H.B. 1678 (2008); H.B. 427 (2009) (addressing child custody orders issued before or during parental deployment); see also Christopher Missick, Note, Child Custody Protections in the Servicemembers Civil Relief Act: Congress Acts to Protect Parents Serving in the Armed Forces, 29 WTLR 857, 873 (2008) (tracing the history and congressional response to the custody dilemmas faced by deployed servicemembers).

9.   We note that on appeal Father abandoned any claim that the judgment was impacted by section 452.413 and relies solely on section 452.412 in his claim of error. This is understandable because section 452.413.1(2), which defines “deployment,” requires that to qualify for the protections of the statute, the “parent is required [by the military] to report unaccompanied by any family member.” (emphasis added). The fact that Father asked the trial court to allow him to relocate with the children to Virginia belies any argument that he was deployed as defined under section 452.413.

10.   Certainly, the voluntary nature of his transfer is not dispositive as many members of the military volunteer to be deployed. However, the lack of any evidence that this transfer was in fact a deployment is critical.

Gary D. Witt, Judge

All concur