BY HIS NEXT FRIEND JOSEPH WALTEMATH AND JOSEPH WALTEMATH INDIVIDUALLY v. SHELBY HERBERT (2026)

Joseph Waltemath (“Father”) and Shelby Herbert (“Mother”) are the parents of a minor child. In January 2022, the Circuit Court of Gentry County entered a judgment in a paternity action, awarding the parties joint legal and physical custody over their child, and ordering Father to pay child support. In June 2023, Father filed a motion to modify the child custody and child support arrangements. The circuit court dismissed Father's motion, based on the court's conclusion that the motion failed to state a claim for modification. The court also awarded Mother attorney's fees of $13,266.65. Father appeals. We reverse.

Factual Background

Father and Mother are co-parents of one minor male child, E.H. (“Child”), who is currently twelve years old. In January 2022, the circuit court entered its original Judgment for Declaration of Paternity, Custody, Visitation and Child Support.

The original judgment granted Father and Mother joint legal custody of Child. As we discuss below, however, the Judgment was internally inconsistent as to whether it awarded sole physical custody to Mother, or instead awarded joint physical custody to both parents.

The parenting plan incorporated into the original paternity judgment awarded Father parenting time with Child on alternating weekends, as well as four non-consecutive weeks in the summer. The parenting plan also provided that Father's and Mother's parenting time during holidays would alternate on an annual basis.

The original judgment also ordered Father to pay Mother $451.00 in monthly child support.

On June 9, 2023, Father filed a motion to modify child custody and child support. Father's motion alleged that the “parties were granted joint legal and joint physical custody” of Child in the original judgment. The motion requested that the court increase Father's parenting time, decrease his child support obligation, and change the child's surname to Father's surname. Father's motion included a proposed parenting plan which provided each party with parenting time on a week-on, week-off basis throughout the year except for holidays, which would continue on an alternating schedule.

To justify modification of the terms of the original judgment, Father's motion alleged:

9. That the continuing and substantial changed circumstances undergone by the minor child in relation to [his] parents include, but are not limited to the following:

a. The minor child has now spent a significant amount of time with [Father], such that he is comfortable in [Father]’s home and with his siblings in that home, where previously he had not spent any time with them.

b. [Father]’s employment has changed so that he is home around 4:30pm each evening and able to spend more time with the minor child. The minor child has come straight home to [Father]’s home from school and [Father] has spent time with the child during the school week without interruption.

c. The minor child has expressed a desire to spend more time with [Father] and his siblings in [Father]’s home in order to learn more about farming, machinery and equipment, and livestock maintenance.

d. That due to the minor child spending more time in [Father]’s home, the child support amount should be changed to give [Father] credit for that change. [Father] has also had another child since the entry of Judgment and such should be calculated into the child support determination.

Mother responded to Father's motion on June 22, 2023. Her response acknowledged that the parties shared joint legal and joint physical custody of Child. Mother moved to dismiss Father's motion to modify, contending that his motion failed to sufficiently allege a change in circumstances which would justify modification of the original judgment. Mother filed motions for attorney's fees and for contempt, and a counter-motion to modify the original Judgment to increase Father's child support payments.

The parties conducted discovery. A succession of guardians ad litem were appointed for Child, based on Mother's allegations that Father was coercing and psychologically abusing Child.

An evidentiary hearing on Father's motion to modify was scheduled for May 6, 2025, almost two years after the motion's filing. At the start of the hearing, the circuit court took up Mother's motions to dismiss for failure to state a claim and her motion for attorney fees. The circuit court heard argument on the motion to dismiss from Mother's and Father's attorneys, after which the court stated its intention to dismiss Father's motion to modify. From the bench, the court stated that it found that two separate grounds justified dismissal of the motion to modify: Father's failure to state a claim for modification of the decree; and Father's discovery violations. Mother voluntarily dismissed her counter-motion to modify and her motion for contempt. The court then heard argument on Mother's motion for attorney fees and ruled that Mother was entitled to an award of attorney's fees, in an amount to be determined following the hearing.

The court entered a written Judgment of Dismissal on May 7, 2025. The judgment repeated the court's conclusion that Father's motion to modify failed to state a claim for relief. The circuit court's dismissal judgment also concluded that Father's “discovery responses were woefully inadequate, not seasonably supplemented and resulted in unfair surprise to” Mother. The judgment did not specify, however, what (if any) consequence would flow from Father's deficient discovery responses. The Judgment of Dismissal found that Mother's “attorney fee bill was greatly increased by [Father's] omissions as set forth above,” and awarded her $13,266.55 in attorney's fees. The judgment also ordered the payment of guardian ad litem fees by the parties.

Following the denial of his motion to set aside and/or reconsider the Judgment of Dismissal, Father filed this appeal.

Discussion

Father raises three Points on appeal. His first two Points challenge the circuit court's dismissal of his motion to modify. Point I argues that his motion to modify sufficiently stated a claim for modification of the original paternity judgment, while Point II argues that, in deciding to dismiss, the circuit court improperly considered matters beyond the allegations of the motion itself. In his third Point, Father contends that the circuit court abused its discretion in awarding Mother $13,266.55 in attorney's fees. We find it necessary to address only Point I.

Mother contends that we lack appellate jurisdiction, because Father could “file a new Motion to Modify wherein he [c]ould properly plead facts to support a modification.” As a general proposition, judgments deciding motions to modify paternity judgments are considered to be final, appealable judgments. See, e.g., J.R.M.-J. ex rel. S.J. v. R.T.M., 674 S.W.3d 516 (Mo. App. E.D. 2023); B.S.-S. ex rel. Snowden v. Callahan, 604 S.W.3d 342 (Mo. App. W.D. 2020); Robertson v. Nelson, 502 S.W.3d 627 (Mo. App. W.D. 2016). Moreover, even if a party could refile their action by making different allegations, “Missouri courts have held that a dismissal without prejudice for failure to state a claim is final and appealable where the plaintiff elects to stand on their existing petition and appeal, rather than seeking to amend the petition to cure any pleading deficiency.” Est. of Williams v. Bauman, 660 S.W.3d 658, 662 (Mo. App. W.D. 2023). In this case, the circuit court concluded that Father's motion to modify failed to state a claim for relief. Because Father has chosen to appeal rather than seeking to amend his motion, this Court has jurisdiction despite the fact that Father could file a new motion to modify making different allegations.

This is a paternity action filed under the Uniform Parentage Act, §§ 210.817 through 210.854.¹ “[S]ection 452.375 ․ ‘governs the initial award of custody in paternity cases, as well as dissolution cases.’ ” A.E.B. v. T.B., 354 S.W.3d 167, 170 (Mo. 2011) (quoting Day ex rel. Finnern v. Day, 256 S.W.3d 600, 602 (Mo. App. E.D. 2008)); see also, e.g., Irving v. Angstrom, 702 S.W.3d 248, 253 (Mo. App. W.D. 2024). The Supreme Court has likewise applied the standards for modification of a child-custody decree found in chapter 452 in a paternity action. See Hightower v. Myers, 304 S.W.3d 727, 734 (Mo. 2010).

Chapter 452 provides different substantive standards depending on whether a non-custodial parent seeks a modification of their visitation time, see § 452.400.2, or a parent seeks to modify a prior custody decree. See § 452.410; see generally Russell v. Russell, 210 S.W.3d 191, 196 (Mo. 2007) (discussing circumstances in which each statute applies); Morgan v. Morgan, 497 S.W.3d 359, 364-66 (Mo. App. E.D. 2016) (same); J.T.P. v. P.F., 440 S.W.3d 497, 500-01 (Mo. App. E.D. 2014) (same). Thus, before addressing whether Father's modification motion adequately alleged a basis for modification, it is necessary to determine whether the original paternity judgment awarded sole physical custody to Mother (thereby rendering Father a non-custodial parent), or instead awarded the parents joint physical custody.

The original paternity judgment contained conflicting statements concerning physical custody. At one point, the Judgment purported to award Mother “physical and residential custody, subject to reasonable periods of visitation with [Father] as set out in the parties’ Joint Parenting Plan as approved by this Court.” Later on the same page, however, the Judgment incorporated the terms of a parenting plan which declared that Child's best interest and welfare “will be served by awarding [Father] and [Mother] joint legal and physical custody of the parties’ minor child, subject to reasonable periods of visitation with [Father], with [Mother]’s address to be used for mailing and educational purposes.”

Because of the judgment's internal inconsistency, we look to § 452.375.1(3), which defines “joint physical custody” as “an order awarding each of the parents significant, but not necessarily equal, periods of time during which a child resides with or is under the care and supervision of each of the parents.” Here, the parenting plan incorporated into the original paternity judgment awarded Father parenting time with Child on alternating weekends; four non-consecutive weeks in the summer; and roughly half of school holidays on an annually rotating basis. The parenting time awarded to Father on holidays provided him with an additional ten overnights or more, depending on the year and on Child's precise school schedule. Because the original paternity judgment awarded significant parenting time to Father, the original paternity Judgment awarded joint physical custody to Mother and Father under this District's caselaw. See J.C.W. ex rel. K.C.G. v. N.R.W., 695 S.W.3d 231, 254-55 (Mo. App. W.D. 2024); Gammon v. Gammon, 529 S.W.3d 350, 355-56 & n.6 (Mo. App. W.D. 2017).

Because the original paternity Judgment awarded the parties joint physical custody, the standard for modification specified in § 452.410.1 applies here. Section 452.410.1 provides in relevant part:

[T]he court shall not modify a prior custody decree unless it ․ finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, 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.

Because Father's motion to modify sought only an adjustment to the parties’ respective parenting time, and did not seek to deprive either party of the custodial status previously awarded to them, it was not necessary for Father to plead or prove a “substantial” change in circumstances. Russell, 210 S.W.3d at 197.

The allegations in Father's motion to modify were sufficient to state a claim for modification of the parenting plan contained in the original paternity judgment. In determining whether modification of a custody decree is appropriate, the circuit court must consider “whether the sort of change in circumstances has occurred that would make a particular aspect of the prior custody decree unreasonable.” J.F.H. v. S.L.S., 550 S.W.3d 532, 537 (Mo. App. E.D. 2017) (citation omitted). “When deciding a physical custody modification, the court only considers changes related to the custodial parents’ abilities to care for the children.” Hark v. Hark, 567 S.W.3d 671, 677 (Mo. App. E.D. 2019) (citation omitted). “[A] modification of the terms of joint physical custody must be supported by a change in the circumstances of the parents’ use of parenting time and their sharing of it in such a way as to assure the child of frequent, continuing, and meaningful contact with both parents.” J.F.H., 550 S.W.3d at 537.

Father's motion to modify alleged that his employment had changed, allowing him to spend more time with Child. Father alleged that, as a result of his change in employment, Child “has come straight home to [Father]’s home from school and [Father] has spent time with the child during the school week without interruption.” Thus, Father's motion to modify alleged that Father was exercising substantial parenting time beyond the time awarded to him in the original paternity judgment.

The changes to Father's employment which permitted him to spend more time with Child, and his exercise of parenting time in excess of that awarded by the original judgment, could constitute changed circumstances warranting a modification of the original paternity judgment. “Changes in employment and marital status are substantial changes that can support modification of a child custody order.” McIntosh v. McIntosh, 400 S.W.3d 860, 863 (Mo. App. E.D. 2013); see also Tienter v. Tienter, 482 S.W.3d 483, 490 (Mo. App. E.D. 2016) (affirming finding of a substantial change in circumstances where “Father obtained a second job after the divorce, worked significant overtime hours at the police department, and changed his marital status,” “result[ing] in the children spending less time with Father”).

Father's modification motion also alleged that, because Child “has now spent a significant amount of time with [Father],” Child was now “comfortable in [Father]’s home and with his siblings in that home.” The motion alleged that this contrasted with the circumstances existing at the time of the original paternity judgment, where Child “had not spent any time with” Father or Child's step- or half-siblings. The motion also alleged that Child “has expressed a desire to spend more time with [Father] and his siblings in [Father]’s home in order to learn more about farming, machinery and equipment, and livestock maintenance.”

Although a child's preferences concerning custodial arrangements may not be sufficient to justify modification of a custody decree standing alone,² “the children's wishes and increased age” are “[a]dditional factors” which may establish changed circumstances, in conjunction with other circumstances. Margolis v. Steinberg, 242 S.W.3d 394, 398 (Mo. App. E.D. 2007); see also, e.g., Woolery v. Woolery, 679 S.W.3d 17, 24 (Mo. App. W.D. 2023) (affirming finding of substantial change in circumstances due to “the combination of the children becoming teenagers with their own specific interests,” and travel and scheduling constraints making parenting time with father more difficult). In addition, we note that the factors cited in Father's modification motion were not simply Child's preferences. Instead, Father's motion cited Child's increased familiarity and comfort with Father, Father's home, and Father's family as a result of dramatically increased interaction. Material changes in a child's adjustment to a parent's home may constitute a changed circumstance supporting modification. See, e.g., O'Connell v. Horton, 313 S.W.3d 702, 706 (Mo. App. W.D. 2010) (citing “child's development of anxiety and depression at Mother's home” among factors justifying a finding of changed circumstances).

Father's modification motion also alleged that Child's vocational interest in farming would be fostered by spending additional time at Father's home. This consideration could also support a finding of changed circumstances, in combination with the other factors described above.

Mother asserts that Father was not granted physical custody in the original paternity judgment. Mother then contends that, under § 452.410.1, only changes in “the circumstances of the child or his custodian” – not changes in the circumstances of a non-custodial parent like Father – can justify modification of a custody decree. As we have explained above, however, despite the ambiguities in the original paternity judgment, that judgment granted Mother and Father joint physical custody, since each was awarded substantial parenting time with Child. Thus, changes in Father's circumstances could support modification of the original decree – particularly where those changes impact Father's availability to parent Child.

We recognize that, in announcing its decision from the bench, the circuit court stated that Father's discovery violations constituted an additional, independent justification for dismissal of the motion to modify. The court's written judgment does not expressly state that any discovery violations constituted a separate basis for dismissal, however, and “our review is ordinarily limited to the written judgment and does not extend to oral comments made by the trial court, which are not part of the judgment.” Harvey v. Dir. of Revenue, 371 S.W.3d 824, 826 (Mo. App. W.D. 2012) (en banc) (citation omitted). Moreover, Mother never filed any motions challenging the sufficiency of Father's discovery responses. And while Mother referred to Father's discovery violations during the May 6, 2025 hearing to justify her request for attorney's fees, she never contended – orally or in writing – that Father's inadequate discovery responses justified dismissal of his motion to modify. In her appellate brief, Mother expressly denies that the circuit court relied on Father's discovery violations to justify dismissal of his modification motion. Instead, she contends the court referred to Father's discovery violations in its judgment only as part of the case's procedural background, and to “form the factual predicate for the court's discretionary award of attorney's fees under § 452.355.”

The circuit court's judgment does not state that the court dismissed Father's motion as a discovery sanction, Mother never sought that relief, and Mother denies on appeal that this was a basis for the dismissal order. In these circumstances, any discovery violations cannot serve as an alternative basis supporting dismissal of Father's motion to modify.

Father's motion to modify adequately alleged changes in circumstances which could justify modification of the original paternity judgment, and the circuit court erred by dismissing Father's motion without an evidentiary hearing. The circuit court's award of attorney's fees was based, at least in significant part, on the court's conclusion that Father's motion to modify was meritless, and that Mother should be compensated for her expenses opposing the motion. Because we are reversing the dismissal ruling, we also reverse the circuit court's award of attorney's fees.

Conclusion

The judgment of the circuit court is reversed, and the case is remanded for further proceedings consistent with this opinion.

FOOTNOTES

1.   Statutory citations refer to the 2016 edition of the Revised Statutes of Missouri, updated by the 2025 Cumulative Supplement.

2.   See, e.g., In re Marriage of Eikermann, 48 S.W.3d 605, 612 (Mo. App. S.D. 2001); Johnson v. Lewis, 12 S.W.3d 379, 384 (Mo. App. W.D. 2000), overruled on other grounds, In re McIntire, 33 S.W.3d 565, 568-69 (Mo. App. W.D. 2000).

Alok Ahuja, Judge

All concur.