author: THOMAS H. NEWTON, Judge.

text:
    Tracey BLUE, Appellant-Respondent, v. HARRAH’S NORTH KANSAS CITY, LLC, Respondent-Appellant, B.L. Sweiger, Respondent.
    Nos. WD 63948, WD 63975.
    Missouri Court of Appeals, Western District.
    June 7, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 2, 2005.
    Application for Transfer Denied Sept. 20, 2005.

      George S. Miller, Maryville, MO, for appellant-respondent.
    Joseph M. Fridkin, Kansas City, MO, for respondent-appellant.
    Theodore A. Bruce, Jefferson City, MO, for respondent.
    Before THOMAS H. NEWTON, P.J., HAROLD L. LOWENSTEIN and PATRICIA A BRECKENRIDGE, JJ.
   THOMAS H. NEWTON, Judge.

Mr. Tracey Blue was arrested at Har-rah’s Casino for the theft of some roulette gaming chips. Mr. Blue brought suit for false arrest against Harrah’s and against Officer B.L. Sweiger, the Missouri Gaming Commission (MCG) agent who was on duty that night and actually arrested him. Officer Sweiger was granted summary judgment and dismissed from the ease. Har-rah’s was found liable for the false arrest. The jury did not award Mr. Blue any actual damages but did award him punitive damages. The trial court granted Har-rah’s a judgment notwithstanding the verdict on the punitive damages award. Both Mr. Blue and Harrah’s appealed.

Mr. Blue did present a submissible case for Harrah’s liability, so the trial court correctly denied Harrah’s motion for judgment notwithstanding the verdict on the question of liability. The trial court correctly denied Mr. Blue’s request for a new trial based on the inconsistent verdict because he waived that issue. The trial court correctly denied Mr. Blue’s motion to amend the judgment to award him nominal damages because he did not request the nominal damages before the jury was dismissed. The trial court correctly granted Harrah’s motion notwithstanding the verdict on the punitive damages award because Mr. Blue failed to show by clear and convincing evidence that Harrah’s had an evil motive or acted with reckless indifference to his rights. The trial court incorrectly granted Officer Sweiger’s motion for summary judgment because it is a jury question whether he had probable cause and, although he is entitled to official immunity, it is a jury question whether he lost that immunity by acting in bad faith or with malice. Affirmed in part, reversed and remanded in part.

I. Factual and PROCEDURAL Background Mr. Blue, an African-American, arrived at Harrah’s at about 3:00 a.m. on April 1, 2003, with a friend from work, Mr. Darren Houcks. Mr. Blue was wearing a solid navy pullover sweatshirt and gold pants. He got a gaming card once he arrived at Harrah’s. He initially played slots. Then he and Mr. Houcks played at the craps tables. Mr. Houcks left at some point and went back to playing slots. Mr. Blue played craps for a little while longer and then went to where Mr. Houcks was playing slots and played slots until he ran out of money. He then sat in front of the escalators, which were near both the craps and roulette tables, waiting for Mr. Houcks to finish playing and cash out.

During that time, another patron reported that her chips, worth $85 — $90, were stolen when she temporarily left them at the roulette table. Harrah’s surveillance personnel reviewed the tapes and after confirming that the theft did occur, Mr. Eric Jarvis, the senior surveillance officer that morning, contacted the MGC agent on duty, Officer B.L. Sweiger. Officer Sweiger went to the surveillance department and reviewed the videotape of the theft. The tape was in black and white and did not show the thief s face, but Officer Sweiger and Mr. Jarvis could tell that he was an African-American male and that his clothing had a contrasting collar.

While they were reviewing the videotape in another room, Ms. Karen Crabtree, another surveillance department employee, was scanning the casino looking for anyone who might fit the minimal description of the thief. She noticed Mr. Blue sitting by the escalators and called Officer Sweiger and Mr. Jarvis into the main room to see if he looked like the thief. While they were looking at him, Mr. Blue got up and headed toward the exit with Mr. Houcks. Officer Sweiger decided that Mr. Blue looked enough like the suspect that he wanted to talk to him before he left. So he asked the surveillance department to call the security department and have them stop Mr. Blue before he left. Mr. Jarvis did not think that Mr. Blue looked like the thief because his collar did not match the one shown in the videotape. Mr. Jarvis testified that he told Officer Sweiger of his doubts, but Officer Sweiger did not recall that statement. Officer Sweiger admitted that he did not have sufficient information to arrest Mr. Blue when he left the surveillance office.

Mr. Blue and Mr. Houcks were stopped at the turnstile exit, as instructed by Officer Sweiger. They were told that the gaming officer wanted to speak with them. While there, Ms. Kathy Martin, the security supervisor on duty, talked with Mr. Blue and asked for his identification. After several minutes, Officer Sweiger arrived. He tried to talk with Mr. Blue but Mr. Houcks kept interrupting, so he took Mr. Blue off to the side to talk with him and no one else heard their exchange. Officer Sweiger told Mr. Blue that he was seen stealing chips at the roulette table. Mr. Blue replied that he never played roulette, did not know how to play roulette, and was at the craps table and slot machines all night. Officer Sweiger believed that Mr. Blue was being evasive when he claimed that he did not know how to play roulette. Mr. Blue also asked to see the tapes but was refused. At some point in the conversation, Officer Sweiger decided that he would get no further in questioning and he arrested Mr. Blue. He used a pair of handcuffs provided by a Harrah’s employee. He then walked Mr. Blue through the casino to the MGC office. On the way he stopped near the roulette table and Ms. Martin asked the dealer whether Mr. Blue was the thief; the dealer said that he was. Once in the office, Officer Sweiger removed the handcuffs, issued Mr. Blue a citation, and Mr. Blue was released. Ms. Martin told him that he was banned from the casino until this was resolved.

During the day the tapes were reviewed more thoroughly and Mr. Blue was seen at the craps table during the time of the theft. The surveillance department determined that someone else had stolen the chips and the thief was seen leaving before the theft was reported. Officer Sweiger sent Mr. Blue a letter informing him of the mistake and letting him know that the summons had been dismissed.

Mr. Blue brought a claim for false arrest against Harrah’s and Officer Sweiger. There was no dispute that he was falsely arrested; the dispute was over who was liable for that false arrest. He asserted that Officer Sweiger was acting as an employee or agent of Harrah’s and that Har-rah’s and Officer Sweiger were acting in concert when Mr. Blue was falsely arrested. Officer Sweiger moved for summary judgment, claiming that he had probable cause to arrest Mr. Blue and that he was entitled to official immunity for the arrest. The trial court granted Officer Sweiger’s motion for summary judgment. A trial was had on Mr. Blue’s claim against Har-rah’s. During trial, Harrah’s moved for a directed verdict claiming that Mr. Blue failed to show an agency relationship between Harrah’s and Officer Sweiger and that Harrah’s engaged in any independent acts that would give rise to liability. The jury found in favor of Mr. Blue but did not award him any actual damages. It awarded him $250,000 in punitive damages.

After the jury was dismissed, Mr. Blue moved the court to amend the judgment by entering nominal damages to support the punitive damages award or, in the alternative, to grant him a new trial because the verdict was against the weight of the evidence. Harrah’s filed a motion for judgment notwithstanding the verdict on both the liability finding and the punitive damages award. The trial court granted Harrah’s motion on the punitive damages award, but denied all other motions by both parties. Mr. Blue and Harrah’s appeal.

Mr. Blue brings three points on appeal. He first claims that the trial court erred in not amending the judgment to include nominal damages. He next claims that the trial court erred in not granting him a new trial as an alternative to amending the judgment. And he finally claims that the trial court erred in granting Officer Sweiger’s motion for summary judgment. Har-rah’s brings one point on cross-appeal, claiming that the trial court erred in denying its motion for directed verdict and for judgment notwithstanding the verdict on liability.

II. Legal Analysis

This case involves liability for a false arrest. There is no dispute that Mr. Blue was not the thief and should not have been arrested. The only dispute is who, if anyone, is liable for any harm from that false arrest and, if someone is liable, to what damages Mr. Blue is entitled. A plaintiff has a cause of action for false arrest if the plaintiff is confined, without legal justification. Rankin v. Venator Group Retail, Inc., 93 S.W.3d 814, 819 (Mo.App. E.D.2002). So there are only two elements: restraint of the plaintiff against his will, and the unlawfulness of that restraint. Bramon v. U-Haul, Inc., 945 S.W.2d 676, 680 (Mo.App. E.D.1997). And a defendant may be liable for false arrest even if he did not actually confine the plaintiff, if that defendant instigated, caused, or procured the arrest. Id. Merely providing information to the police is insufficient to find that the defendant caused the arrest. Id.

A. Harrah’s Cross-Appeal — The Trial Court Correctly Denied the Motion for Directed Verdict and for Judgment Notwithstanding the Verdict on Liability.

We address Harrah’s cross-appeal first because if we had found in Harrah’s favor, we would not need to consider Mr. Blue’s first two points. The question under this point is whether Harrah’s could be found liable for Mr. Blue’s arrest.

The standard of review for a decision on a motion for a directed verdict or a judgment notwithstanding the verdict is the same. First State Bank v. Frankel, 86 S.W.3d 161, 169 (Mo.App.E.D.2002). The defendant is entitled to have the motion granted only if the plaintiff fails to make a submissible case. Porter v. Toys “R” Us—Del., Inc., 152 S.W.3d 310, 315 (Mo.App.W.D.2004). “To make a submissible case, a plaintiff must present substantial evidence for every fact essential to liability. Substantial evidence is that which, if true, has probative force upon the issues, and from which the trier of fact can reasonably decide the case.” Id. (internal quotation marks and citations omitted). When deciding whether the plaintiff made a submissible case, we view the evidence and all reasonable inferences from it in the light most favorable to the plaintiff and disregard all evidence to the contrary. Brockman v. Regency Fin. Corp., 124 S.W.3d 43, 46 (Mo.App. W.D.2004).

Granting a judgment notwithstanding the verdict is drastic, and we will not overturn a jury’s verdict unless there are no probative facts to support it. Porter, 152 S.W.3d at 316. There is, in fact, a presumption in favor of reversing a judgment notwithstanding the verdict. Brockman, 124 S.W.3d at 46.

Harrah’s presents several reasons that it is not liable. It first claims that because Officer Sweiger was granted summary judgment, it cannot be held liable for his actions. Because we are reversing on that issue, that would not provide Harrah’s protection from liability. Further, we do not know why the trial court granted his motion for summary judgment. Because there was no probable cause for arrest, we have to assume that it was based on official immunity. But an officer’s immunity does not extend to an individual who gives the officer information about a crime and encourages and requests the officer to arrest an innocent party. Winegar v. Chicago, B. & Q. R.R. Co., 163 S.W.2d 357, 365 (Mo.App.1942). So whether Officer Sweiger is liable is irrelevant to Harrah’s liability.

Harrah’s claims that it cannot be liable for bringing the theft of the chips to Officer Sweiger’s attention and for then following his directions. It claims that under Missouri Regulations 11 CSR 45-10.030, it was required to notify the MGC agent on the property and to follow his directions.

In the event that a licensee or employees of the licensee knows or should have known that an illegal or violent act has been committed on or about the licensed premises, they shall immediately report the occurrence to law enforcement authorities and shall cooperate with law enforcement authorities and agents of the commission during the course of any investigation into an occurrence.

11 CSR 45-10.030(3). Harrah’s claims that all that it did was report the theft to Officer Sweiger, the MGC agent on duty, once the surveillance department confirmed that the theft actually occurred. After that, Harrah’s was simply “cooper-at[ing] with ... [the] agent[ ] of the commission during the course of any investigation” by stopping Mr. Blue on Officer Sweiger’s orders and providing handcuffs when Officer Sweiger requested them. As such, Harrah’s asserts that it cannot be held liable for following the law. Further, if it did not follow these regulations, then it would lose its gaming license.

Because Harrah’s did not actually arrest Mr. Blue, Officer Sweiger did, the real question is whether or not Har-rah’s employees’ actions constitute instigation of the arrest. Providing information that forms the basis of a false arrest may make one liable for instigating the arrest. Rankin, 93 S.W.3d at 819. But when a person merely states facts to an officer, while leaving it to the officer to act as he sees fit, that person is not hable for false arrest. Rustid v. Weidemeyer, 673 S.W.2d 762, 767 (Mo. banc 1984). Further, “a person may not be held liable for stating the truth to one who ultimately effects another’s arrest.” Id. The truth justifies and is a complete defense to the cause of action. Id.

Since this is a question of denial of a motion for judgment notwithstanding the verdict, we are only concerned with whether Mr. Blue made a submissible case that Harrah’s instigated his arrest. We do not actually weigh the evidence that he presented. He presented evidence that Har-rah’s told Officer Sweiger about the theft, showed him the videotape of the theft that was readily available, and searched for anyone who resembled the thief. Harrah’s employees then followed Officer Sweiger’s directions, which ultimately resulted in Mr. Blue’s arrest. Security Supervisor Ms. Martin then became involved. But there is also evidence that Mr. Jarvis tried to dissuade Officer Sweiger from arresting Mr. Blue because he did not believe that Mr. Blue looked like the thief. And it was Harrah’s employees who continued to review the tapes and confirmed that Mr. Blue did not commit the theft.

Although some of this evidence is in Harrah’s favor, some of it is not. This creates two possible interpretations about what happened; so a submissible case was made, and it was for the jury to decide whom to believe. Altenhofen v. Fabricor, Inc., 81 S.W.3d 578, 584 (Mo.App. W.D.2002) (“The jury is the sole judge of the credibility of the witnesses and the weight and value of their testimony and may believe or disbelieve any portion of that testimony.”); see also Frank v. Wabash R.R. Co., 295 S.W.2d 16, 22 (Mo.1956) (plaintiff has the burden of proof to show that the unlawful arrest occurred, then defendant has the burden to present evidence to show a justification; if this is shown, the question of whether the arrest was justified is for the jury); Hunt v. Ruterbusch, 38 S.W.2d 503, 504 (Mo.App.1931) (there was sufficient proof of instigation to require submission of the case to the jury, which could decide whom to believe). The jury obviously found that there was sufficient evidence of Harrah’s liability. Har-rah’s cross-appeal is denied.

B. Mr. Blue’s Second Point — The Trial Court Correctly Denied his Motion for a New Trial.

We address this point next because it is easily dismissed. The law is very clear that Mr. Blue missed his opportunity to have the verdict corrected by the jury and is not now entitled to a new trial.

The trial court has broad discretion in deciding whether to grant a new trial. Moses v. Halstead, 144 S.W.3d 309, 311 (Mo.App. W.D.2004). When reviewing denial of a new trial, we consider only the evidence that supports the trial court’s decision, and the denial is conclusive unless the verdict is shockingly inadequate. Id.

Mr. Blue claims that he should have been granted a new trial because the verdict was inconsistent and against the weight of the evidence since the jury found in his favor and awarded him punitive damages but failed to award him actual damages. He claims that if the trial court will not amend the judgment then he should get a new trial. By awarding him punitive damages but not actual damages, the jury returned an inconsistent verdict. O’Brien v. Mobil Oil Corp., 749 S.W.2d 457, 458 (Mo.App. E.D.1988). The general rule is that no punitive damages can be awarded without an award of actual or nominal damages. Williams v. Williams, 99 S.W.3d 552, 556 (Mo.App. W.D.2003). And since 1986, the rule in Missouri is that a claim that a verdict is inconsistent to the point of being self-destructive must be presented to the trial court before the jury is discharged or that claim is waived. Douglass v. Safire, 712 S.W.2d 373, 374 (Mo. banc 1986).

It does not matter that Mr. Blue got a judgment in his favor, and it does not matter that he received punitive damages. It also does not matter that he believes that this problem could be resolved by giving him an award of nominal damages, which will be considered below. The only basis for a new trial is that a verdict in his favor without an award of actual damages is an inconsistent verdict. Once that inconsistent verdict was given, the burden was on Mr. Blue to ask the court to instruct the jury to award him nominal damages if it did not find that he suffered actual damages, and he failed to do so. Jacobs v. Bonser, 46 S.W.3d 41, 47 (Mo.App. E.D.2001). The law is very clear that Mr. Blue’s failure to raise that problem before the jury was discharged means that he has waived that claim and is not entitled to a new trial. See e.g., Ivy v. Wal-Mart Stores, Inc., 777 S.W.2d 682, 684 (Mo.App. W.D.1989) (the verdict should not have been accepted because the jury found in plaintiffs favor on her false imprisonment claim but did not award her actual damages; but under Douglass her failure to complain about this inconsistency before the jury was discharged resulted in waiver of that claim); O’Brien, 749 S.W.2d at 458 (verdict in false arrest case was inconsistent because it found for plaintiff and awarded him punitive damages but no actual damages; plaintiffs failure to ask that the jury resolve that inconsistency before being discharged resulted in his claim of inconsistency being waived). Mr. Blue’s second point is denied.

C. Mr. Blue’s First Point — The Trial Court Correctly Refused to Enter a Nominal Damages Award.

Mr. Blue claims that the trial court should be able to amend the judgment, by post-trial motion, to include an award of nominal damages. If he is given nominal damages, then the punitive damages award would be supported and Har-rah’s would no longer be entitled to a judgment notwithstanding the verdict. See Williams, 99 S.W.3d at 556 n. 1 (nominal damages can support an award of punitive damages in actions for false imprisonment).

Under Rule 75.01, the trial court retains control over judgments for thirty days after the entry of the judgment. Rule 75.01; Scott v. Scott, 147 S.W.3d 887, 892 (Mo.App. W.D.2004). After giving the parties an opportunity to be heard, the court may amend the judgment for good cause. Id. Good cause is interpreted liberally, and we review the determination of good cause for an abuse of discretion. Stroup v. Leipard, 981 S.W.2d 600, 603 (Mo.App. W.D.1998).

Harrah’s argues two things. First, because Mr. Blue failed to even instruct the jury on nominal damages, he is not entitled to now ask that they be awarded. Second, the trial court cannot now give him an award of nominal damages that was not given by the jury.

We do have one case which holds that, although nominal damages are appropriate for a particular cause of action, we cannot reverse the trial court for failing to award them when the plaintiff did not request any jury instructions on nominal damages. Clark v. Beverly Enters.-Mo., Inc., 872 S.W.2d 522, 527 (Mo.App. W.D.1994). But Clark is so factually different because the defendant won that it does not apply to this case. So we focus only on Harrah’s second argument.

False arrest only has two elements: restraint of the plaintiff against his will, and the unlawfulness of that restraint. Bramon, 945 S.W.2d at 680. A plaintiff is not required to show actual damages. Ivy, 777 S.W.2d at 684. As Mr. Blue asserts, “[g]eneral damages follow as a matter of course from the mere showing of wrongful arrest and imprisonment,” and Mr. Blue was entitled to an award of at least nominal damages once the jury found in his favor. Id. So the fact that Mr. Blue did not show actual damages does not itself prevent him from getting nominal damages and does not prevent those nominal damages from supporting a punitive damages claim. Cf. Williams, 99 S.W.3d at 556 (finding of only nominal damages is not sufficient to support punitive damages because actual damages are a necessary element of a fraudulent misrepresentation claim). Nominal damages “vindicate an invasion of right that otherwise would go without redress,” Simpkins v. Ryder Freight Sys., Inc., 855 S.W.2d 416, 422 (Mo.App. W.D.1993), such as a false arrest where there are no actual damages.

Mr. Blue is claiming that because damages follow as a matter of course from the jury’s finding that he was falsely arrested, Ivy, 777 S.W.2d at 684, the trial court may amend the judgment and give him an award of nominal damages.

We disagree. Although the jury found in Mr. Blue’s favor on his false arrest claim, it did not award him any damages. At that point, it became his responsibility to ask for that inconsistency to be resolved by having the jury award him nominal damages. And because this case also involves the award of punitive damages, it became important for Mr. Blue to have the jury fix this problem. Because as soon as the jury awarded Mr. Blue punitive, but not actual or nominal damages, Harrah’s was entitled to a judgment as a matter of law. Jacobs, 46 S.W.3d at 47. And by failing to resolve this problem, Mr. Blue waived his right to assert on appeal that the judge should have instructed the jury on nominal damages. Id.

In fact, the eastern district considered this exact question in Jacobs and decided it against Mr. Blue’s argument. Id. at 47-48. In Jacobs, the court considered a finding in the plaintiffs favor on a claim of battery where the jury awarded him no actual damages but did award punitive damages. Id. at 45. The eastern district held that the trial court should have entered a judgment notwithstanding the verdict for the defendant. Id. The court held that by failing to ask the court to correct the inconsistency due to the damages verdict before the jury was discharged, plaintiff waived his right to assert on appeal that the judge should have instructed the jury on nominal damages. Id. at 47. The court considered a federal case, Wright v. Jasper’s Italian Rest., Inc., 672 F.Supp. 424 (W.D.Mo.1987), that faced the same question. Id. at 47-48.

In Wright, the jury found that plaintiff was falsely arrested but did not award him actual damages, only punitive damages. 672 F.Supp. at 425. The Wright court held that it could enter an award of nominal damages to support the punitive damages because the jury found that plaintiff was wronged. Id. at 426. It relied on a Missouri Supreme Court case, Herberholt v. dePaul Cmty. Health Ctr., 625 S.W.2d 617 (Mo. banc 1981), where the jury had awarded actual damages for which there was no proof and the Supreme Court set the award aside and directed that one dollar ($1) in nominal damages be awarded, which would then support the punitive damages award. Wright, 672 F.Supp. at 426 (citing Herberholt, 625 S.W.2d at 623-24). The Jacobs court held that the facts of Herberholt did not apply to Wright or its case and “[m]ore importantly,” the jury in Herberholt actually awarded actual damages while the jury did not in Wright or Jacobs. 46 S.W.3d at 47.

We find that vacating an award of actual damages because they are unsupported by the evidence and directing an award of nominal damages instead because a statute was actually violated by an employer [as in Herberholt ], is a very different action from directing an award of nominal damages when no actual damages were found at all by a jury.

Id. at 47-48. As such, the plaintiff in that case could not have the trial court amend the judgment to give him nominal damages after the jury was dismissed. Id. at 47.

This rule is directly on point to our case and is dispositive of the issue. When a plaintiff brings a cause of action, and it is one of the few claims that does not require proof of actual damages, it is still the plaintiffs responsibility to ask for an award of nominal damages. This is true even when the jury finds in the plaintiffs favor. If the jury fails to award nominal damages, the plaintiff must ask that the jury be instructed on nominal damages at that time, and the jury must then decide whether or not to award them before it is dismissed. Only then will any award of punitive damages be allowed to stand. Mr. Blue’s first point is denied.

D. Harrah’s Third Response to Mr. Blue’s Claims — Mr. Blue did not make a Submissible Case for Punitive Damages.

Harrah’s claims that we could also affirm the trial court’s grant of a judgment notwithstanding the verdict because Mr. Blue did not make a submissible case for punitive damages. Punitive damages are appropriate only when the defendant’s conduct is outrageous due to evil motive or reckless indifference to the rights of others. Jacobs, 46 S.W.3d at 45. It is not the commission of the tort that matters, but the conduct or motive that provides the basis for punitive damages. Fabricor, Inc. v. E.I. DuPont De Nemours & Co., 24 S.W.3d 82, 97 (Mo.App. W.D.2000). Punitive damages are extraordinary and harsh, and so the evil motive or reckless indifference must be proven by clear and convincing evidence. Rodriguez v. Suzuki Motor Corp., 936 S.W.2d 104, 111 (Mo. banc 1996). Although we found that the trial court could not amend the judgment after the jury had been dismissed, there is another reason to support the trial court’s grant of Harrah’s motion for a judgment notwithstanding the verdict.

Harrah’s claims that neither an evil motive nor reckless indifference can be shown because it simply provided Officer Sweiger with information about a theft and followed its duties under 11 CSR 45-10.030(3) by cooperating with his investigation. Harrah’s claims that all of the acts after Officer Sweiger was informed of the theft were his own actions, so Harrah’s should not be held responsible for them and it certainly cannot be accused of having an evil motive or acting indifferently to Mr. Blue’s rights.

Mr. Blue counters by pointing to various actions by Harrah’s employees, such as Ms. Martin asking for Mr. Blue’s identification, the roulette dealer identifying him as the thief, and Ms. Martin telling Mr. Blue that he was banned from the casino. But he also mentions the fact that the arrest happened even after Mr. Jarvis told Officer Sweiger that he did not believe Mr. Blue was the thief. And he focuses on other actions that were solely in Officer Sweiger’s discretion, such as choosing to not interview Mr. Houcks or look at other videotapes even after Mr. Blue asserted that he was playing craps.

Although the jury found that Mr. Blue was entitled to punitive damages, we find that there is not clear and convincing evidence that Harrah’s had an evil motive or a reckless indifference to Mr. Blue’s rights. It was required to comply with Officer Sweiger under 11 CSR 45-10.030(3) and that is what it did. Although Mr. Blue was able to present a submissible ease on liability, he simply did not meet the high standard for an award of punitive damages. So the trial court’s judgment notwithstanding the verdict on the award of punitive damages is affirmed.

E. Mr. Blue’s Third Point — The Trial Court Erred in Granting Officer Sweiger’s Motion for Summary Judgment.

The trial court shall enter summary judgment only if “the motion, the response, [and] the reply ... show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Rule 74.04(c)(6). The appellate court reviews the grant of summary judgment essentially de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The record is reviewed in the light most favorable to the party against whom judgment was entered, and the non-movant is given the benefit of all reasonable inferences from the record. Id.

The moving party’s entitlement to judgment as a matter of law revolves to a great extent around whether that party is the claimant or the defending party. Id. at 381. The claimant is the party “seeking to recover,” and the defending party is the party “against whom a claim ... is asserted.” Rule 74.04(a) & (b). Officer Sweiger is the defending party. As the defending party, Officer Sweiger is not required to controvert each element of Mr. Blue’s claim to establish his right to summary judgment. ITT Commercial Fin. Corp., 854 S.W.2d at 381. Instead, Officer Sweiger can establish his right to judgment by showing (1) facts that negate any one of Mr. Blue’s elements; (2) that Mr. Blue, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of his elements; or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support Officer Sweiger’s properly-pled affirmative defense. Id. Officer Sweiger relied on the first and third methods by negating an element of false arrest and by asserting the affirmative defense of official immunity-

To prevent summary judgment, Mr. Blue needed to show that there is a genuine dispute as to the facts underlying Officer Sweiger’s right to judgment on either ground. See id. If the parties disagree on the legal effect and consequences of the facts, and not the relevant facts themselves, there is not a genuine dispute of facts precluding summary judgment. Betts-Lucas v. Hartmann, 87 S.W.3d 310, 322 (Mo.App. W.D.2002).

We will affirm a grant of summary judgment if the decision is correct “under any theory supported by the record developed below and presented on appeal.” Victory Hills Ltd. P’ship I v. NationsBank, N.A., 28 S.W.3d 322, 327 (Mo.App. W.D.2000). “If the trial court’s judgment does not specify the basis upon which summary judgment was granted, we will uphold the decision if it was appropriate under any theory.” Horneyer v. City of Springfield, 98 S.W.3d 637, 639 (Mo.App. S.D.2003).

We do not know whether the trial court granted Officer Sweiger’s motion for summary judgment based on official immunity or because he had probable cause to arrest Mr. Blue. We need find that only one of these bases supports summary judgment to affirm the trial court. Id. Although Mr. Blue tries to argue that Officer Sweiger did not assert either of these in his answer and so they are waived, both were pleaded as defenses in his answer.

Police officers are not liable for negligent acts that are related to discretionary functions. Miller v. Smith, 921 S.W.2d 39, 45 (Mo.App. W.D.1996). “A discretionary act is one that requires ‘the exercise of reason in the adapt[at]ion of means to an end and discretion in determining how or whether an act should be done or a course pursued.’ ” Id. (internal citation omitted). This doctrine was established to protect officers from second-guessing based on hindsight. Costello v. City of Ellisville, 921 S.W.2d 134, 186 (Mo.App. E.D.1996). Deciding whether or not to arrest someone is a matter of discretion — the officer must decide what course should be pursued based on the circumstances at hand. “A police officer who has probable cause to believe that a suspect has committed a crime is not liable for the state law tort of false arrest simply because the suspect is later proven innocent or the charges are dismissed.” Kurtz v. City of Shrewsbury, 245 F.3d 753, 757 (8th Cir.2001). The issue in false arrest is not the official capacity of the person making the arrest, but whether there was lawful authority for making the arrest. Sturgeon v. Holtan, 486 S.W.2d 209, 211 (Mo.1972). But official immunity does not apply to discretionary acts done in bad faith or with malice. State ex rel. Twiehaus v. Adolf, 706 S.W.2d 443, 446 (Mo. banc 1986).

Because arresting someone is a discretionary act, the issue here is whether Officer Sweiger acted in bad faith or with malice, removing the protection of official immunity. Bad faith or malice generally requires actual intent to cause injury. Davis v. Bd. of Educ., 963 S.W.2d 679, 689 (Mo.App. E.D.1998).

A defendant acts with malice when he wantonly does that which a man of reasonable intelligence would know to be contrary to his duty and which he intends to be prejudicial or injurious to another. An act is wanton when it is done of wicked purpose, or when done needlessly, manifesting a reckless indifference to the rights of others....
Bad faith, although not susceptible of concrete definition, embraces more than bad judgment or negligence. It imports a dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty through some ulterior motive or ill will partaking of the nature of fraud. It also embraces actual intent to mislead or deceive another.

Adolf, 706 S.W.2d at 447 (internal quotation marks and citations omitted). The official immunity defense can also be overcome by showing conscious wrongdoing. Rozell v. Stiefermann, 726 S.W.2d 342, 344 (Mo.App. W.D.1987). Mr. Blue presented several facts that might suggest a “conscious wrongdoing”: Mr. Jarvis allegedly told Officer Sweiger that he did not believe that Mr. Blue was the thief; Officer Sweiger admitted that he did not have probable cause to arrest Mr. Blue when he stopped him from exiting; Mr. Blue explained that he was at the craps table and asked for the surveillance tapes to be reviewed, but Officer Sweiger refused; and Officer Sweiger only decided to arrest him because he thought Mr. Blue’s answers about not knowing roulette were suspicious and he was belligerent. Officer Sweiger then presented facts to show that he did not act in bad faith or with malice: he thought that Mr. Blue looked enough like the suspect that he wanted to talk to him; there was no one else in the casino who looked like the suspect; he believed that Mr. Blue was being intentionally deceptive when he said that he did not know anything about roulette; and he felt that he had no other avenues of investigation available and had to decide whether he had probable cause to arrest Mr. Blue.

These facts create a genuine dispute about whether Officer Sweiger acted in bad faith or with malice, thereby precluding him from claiming official immunity. Because the facts are unclear, the question should not have been taken away from the jury. Summary judgment was not appropriate here because the facts do not support a finding that Officer Sweiger was entitled to a judgment in his favor as a matter of law. Rule 74.04(c)(6). A jury should be given an opportunity to consider all the evidence that both sides can present and decide whether or not Officer Sweiger acted in bad faith or with malice when he arrested Mr. Blue.

Because Officer Sweiger did not have official immunity as a matter of law, we must also consider whether the arrest was justified by probable cause. “The arrest of an innocent person by an officer empowered to make an arrest is justified if the officer has a reasonable belief that the person is guilty of the offense for which he is arrested.” Edwards v. McNeill, 894 S.W.2d 678, 683 (Mo.App. W.D.1995). And justification is a complete defense to false arrest. Id.

Officer Sweiger claims that he had probable cause to arrest Mr. Blue, and he claims that Mr. Blue conceded that in his response to the motion for summary judgment. Mr. Blue contests that characterization of his response to the motion for summary judgment, claiming that he did not concede that probable cause existed. We agree; he objected to Officer Sweiger’s statements of uncontroverted facts about probable cause, claiming that they were legal conclusions and not facts.

To have probable cause to arrest, “[a]t the time of the arrest, the officer must have known facts sufficient for a prudent person to believe that the subject committed, or was committing, an offense.” Palcher v. J.C. Nichols Co., 783 S.W.2d 166, 169 (Mo.App. W.D.1990). The officer must have a reasonable belief that an offense is occurring. Id. We do not think that as a matter of law Officer Sweiger had probable cause to arrest Mr. Blue when he did so. There was no specific description of the thief from the videotape; Mr. Blue’s clothing looked different from that of the suspect; Officer Sweiger admittedly did not have probable cause to arrest Mr. Blue when he stopped him; and Officer Sweiger’s probable cause apparently arose because Mr. Blue became belligerent and said that he did not know how to play roulette. Those are not “facts sufficient for a prudent person to believe” that Mr. Blue committed the theft. “As a general rule the defense of probable cause is a question of fact for the jury.” Vaughn v. Sears Roebuck & Co., 643 S.W.2d 30, 33 (Mo.App. E.D.1982). So this is also a jury question and not a basis to grant summary judgment. Mr. Blue’s third point is granted. His claim against Officer Sweiger is remanded for a trial on the merits.

III. Conclusion

We affirm the trial court’s denial of a judgment notwithstanding the verdict on the issue of Harrah’s liability and the trial court’s grant of a judgment notwithstanding the verdict on the punitive damages award. We affirm the trial court’s refusal to amend the judgment to award nominal damages. We reverse the trial court’s summary judgment in favor of Officer Sweiger and remand for a trial on his liability to Mr. Blue. Affirmed in part and reversed and remanded in part.

HAROLD L. LOWENSTEIN and PATRICIA A. BRECKENRIDGE, JJ. concur.

      . Officer Sweiger is a Missouri State Highway Patrol Trooper with the gaming division of the Highway Patrol; he is assigned to Har-rah's.

      . See subsection E, infra.

      . Mr. Blue claims that Officer Sweiger is basically Harrah's employee because although Officer Sweiger is a Missouri Highway Trooper and is paid by the State of Missouri, Harrah’s must reimburse Missouri for his salary and benefits because he is stationed in the casino. Further, Harrah’s provides all of his equipment and office space. But this is required under the MGC regulations, so it is not enough to create liability in Harrah's.

      . See subsection C, infra.

      . Unless otherwise indicated, all rules refer to Missouri Court Rules (2004).

      . In the majority of cases, proof of actual damages is an element of the cause of action; so this question will not arise because if the plaintiff fails to prove damages, then he or she will have lost the case.

      . We also note that Mr. Blue seems to be arguing that Officer Sweiger is claiming probable cause and justification as two separate defenses, and that both must be pled. But they are one defense: probable cause is the justification for the arrest, and justification is the affirmative defense to false arrest. See Palcher v. J.C. Nichols Co., 783 S.W.2d 166, 168-69 (Mo.App. W.D.1990).


source: Caselaw Access Project

license: Public Domain

text:
    Walter L. COOK, Appellant, v. Marie L. TURNER and Joan C. Brunsvold, Respondents.
    No. WD 64624.
    Missouri Court of Appeals, Western District.
    June 7, 2005.
    Application for Transfer to Supreme Court Denied Aug. 2, 2005.
    Application for Transfer Denied Sept. 20, 2005.
    Bradley Constance, Independence, for Appellant.
    Dennis Palmer, Kansas City, for Respondent.
    Before JOSEPH M. ELLIS, Presiding Judge, PAUL M. SPINDEN, Judge, and VICTOR C. HOWARD, Judge.
   ORDER

Walter L. Cook appeals the circuit court’s summary judgment for Marie L. Turner and Joan C. Brunsvold on Cook’s action to set aside deeds and quiet title. We affirm. Rule 84.16(b).


text:
    Amy HALLIN, Appellant, v. Sean MITCHELL, Jeffrey Jaax, Jane Doe and Robert Roe, Unknown Employees of Westport Anesthesia Services, P.C., Westport Anesthesia Services, P.C., and Saint Luke’s Hospital of Kansas City, Respondents.
    No. WD 64427.
    Missouri Court of Appeals, Western District.
    June 14, 2005.
    Application for Transfer to Supreme Court Denied Aug. 2, 2005.
    Application for Transfer Denied Sept. 20, 2005.
    David Greis, Kansas City for Appellant.
    B.K. Christopher and Thomas Wagstaff, Kansas City for Respondent.
    Before JOSEPH M. ELLIS, Presiding Judge, PAUL M. SPINDEN, Judge, and VICTOR C. HOWARD, Judge.
   ORDER

Amy Hallin appeals the circuit court’s judgment dismissing her petition claiming medical malpractice against the defendants. We affirm. Rule 84.16(b).


author: VICTOR C. HOWARD, Judge.

text:
    In the Matter of the CARE AND TREATMENT OF Jess HEIKES, a/k/a Jess H. Heikes, a/k/a Jesse Heikes, a/k/a Jessie H. Heikes, a/k/a Jessie Herman Heikes, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64088.
    Missouri Court of Appeals, Western District.
    June 14, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 2, 2005.
    Application for Transfer Denied Sept. 20, 2005.

      Emmett D. Queener, Assistant State Public Defender, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Daniel L. Massey, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before: ELLIS, P.J., and SPINDEN and HOWARD, JJ.
   VICTOR C. HOWARD, Judge.

Appellant Jess Heikes (“Heikes”) appeals from a judgment in the Circuit Court of Buchanan County finding Heikes to be a sexually violent predator and confining Heikes to a secure facility. In his sole point on appeal, Heikes argues the probate court plainly erred in admitting evidence that Heikes has antisocial personality disorder and in committing Heikes to involuntary civil commitment based on that disorder. Heikes claims that omission of personality disorders from the statutory definition of a sexually violent predator indicates a legislative intent that personality disorders not serve as the basis for subjecting a person to involuntary civil commitment as a sexually violent predator. For the reasons set forth below, the judgment of the probate court is affirmed.

Background

The State of Missouri filed a civil commitment petition in the Circuit Court of Buchanan County, Probate Division, pursuant to sections 632.480 through 632.513, requesting that the court find Heikes to be a sexually violent predator and commit Heikes to the custody of the Department of Mental Health for treatment until he is no longer a threat to society.

Several witnesses testified for the State at the bench trial. The State’s witnesses testified that Heikes had been engaging in predatory sexual behavior since 1971. Heikes’ behavior included inappropriate touching and fondling of females, verbally and physically threatening females who did not acquiesce to his sexual demands, spying on females in restrooms and locker rooms, and exposing himself to females.

Heikes was convicted of assault in 1971, assault with intent to rape in 1973, arson in 1976, burglary in 1981, third degree assault in 1997, invasion of privacy in 1999, and first-degree sexual assault in 2000. Heikes was also charged with open and gross lewdness in 1974 (disposition of charges unknown) and 1976 (charges dismissed). Another woman testified that Heikes raped her when she was twelve years old and that Heikes threatened to slit her throat if she told anybody. This case was never charged or prosecuted.

The State called Dr. James Reynolds (“Dr. Reynolds”), the medical director of the Northwest Missouri Psychiatric Rehabilitation Center, who conducted a sexually violent predator evaluation of Heikes. Dr. Reynolds examined some of Heikes’ probation and parole records and prepared a written report detailing the findings. Dr. Reynolds testified to the following: Heikes was diagnosed as having both anti-social personality disorder (“APD”) and voyeurism. Voyeurism is a condition causing an individual, for a period of greater than six months, to have powerful and recurring fantasies of watching unsuspecting people undressing or having sex or actually engaging in such behavior on at least one occasion. Several factors are considered in determining whether an individual has APD: (1) evidence of a conduct disorder by the age of fifteen; (2) caring only about one’s own needs; (3) failing to consider the rights of others; (4) deceitfulness; (5) irresponsibility; and (6) lack of remorse. Records revealed that Heikes had problems prior to the age of fifteen, such as fighting, school suspensions, stealing, and running away from home. Heikes tended to be deceitful by denying things he had done in the past, even if he had previously admitted to doing them. Heikes had never held a job for more than eleven months and was not diligent about seeking jobs or remaining employed once he had a job, indicating a lack of responsibility. Heikes’ being unapologetic about being unfaithful to his wife and making excuses about his criminal behavior also indicated a lack of responsibility. Heikes also showed a lack of remorse for prior indiscretions, indicating both a lack of responsibility and disregard for the rights of others. Heikes’ personality and his deviant sexual interests indicate that he is predisposed to commit sexually violent acts. Heikes has a long-term pattern of sexually criminal behavior, and it appears that Heikes’ sex crimes are becoming more serious and violent. Dr. Reynolds concluded with reasonable medical certainty that Heikes suffers from a mental abnormality that makes him more likely than not to engage in predatory acts of sexual violence if not confined in a secure facility and that Heikes meets the definition of a sexually violent predator.

Heikes did not introduce any evidence and did not testify on his own behalf. The probate court determined that Heikes is a sexually violent predator because he suffers from a mental abnormality making him more likely than not to engage in predatory acts of sexual violence if he is not confined in a secure facility. The probate court entered judgment on March 10, 2004, committing Heikes to the custody of the Department of Mental Health to be held in a secure facility until such time as his mental abnormality is changed so that he can be safe at large. This appeal follows.

Discussion

In his sole point on appeal, Heikes argues the probate court plainly erred in admitting evidence that Heikes has antisocial personality disorder and in committing Heikes to involuntary civil commitment based on that disorder. Heikes claims that omission of personality disorders from the statutory definition of a sexually violent predator indicates a legislative intent that personality disorders not serve as the basis for subjecting a person to involuntary civil commitment as a sexually violent predator.

“Objections to the admission of evidence must be timely and specific.” Connour v. Burlington N. R.R., 889 S.W.2d 188, 141 (Mo.App. W.D.1994). Heikes concedes that he did not object to the admission of evidence regarding the presence of APD. Therefore, our only review is for plain error.

Under plain error review, an appellate court “should first examine whether the claim of plain error is one that, on its face, establishes substantial grounds for believing that manifest injustice or miscarriage of justice has occurred.” State v. Rogers, 51 S.W.3d 879, 880 (Mo.App. W.D.2001). If plain error is facially established, an appellate court should then review the claim “to determine whether manifest injustice or a miscarriage of justice actually occurred.” Id. If a claim of plain error does not facially establish substantial grounds for believing manifest injustice or miscarriage of justice has occurred, an appellate court should decline to review for plain error. Id.

Plain error review is seldom granted in civil cases and “may not be invoked to cure the mere failure to make proper and timely objections.” Guess v. Escobar, 26 S.W.3d 235, 241 (Mo.App. W.D.2000). The plain error rule “ ‘does not justify a review of every alleged trial error that has not been properly preserved for appellate review.’ ” Messina v. Prather, 42 S.W.3d 753, 763 (Mo.App. W.D.2001) (quoting State v. Valentine, 646 S.W.2d 729, 731 (Mo.1983)).

Section 632.480 provides, in relevant part:

As used in sections 632.480 to 632.513, the following terms mean:
(2) “Mental abnormality”, a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others;
(3) “Predatory”, acts directed towards individuals, including family members for the primary purpose of victimization;
(5) “Sexually violent predator”, any person who suffers from a mental abnormality which makes the person more likely than not to engage in predatory acts of sexual violence if not confined in a secure facility and who:
(a) Has pled guilty or been found guilty, or been found not guilty by reason of mental disease or defect pursuant to section 552.030, RSMo, of a sexually violent offense; or
(b) Has been committed as a criminal sexual psychopath pursuant to section 632.475 and statutes in effect before August 13,1980.

In support of his point on appeal, Heikes argues that APD is not a mental abnormality that falls within the definition of section 632.480(5), so evidence of APD was inadmissible at trial on this issue. Heikes claims that it was manifest injustice for the probate court to admit evidence of APD, because Dr. Reynolds stated that the presence of voyeurism in combination with the presence of APD was a mental abnormality. Heikes ai'gues that without evidence of APD, involuntary civil commitment is not justified. Heikes claims that because section 632.480(5) does not include “personality disorder” in its definition of “sexually violent predator,” this indicates that the Missouri legislature specifically chose to omit the presence of a personality disorder from the type of conditions that bring Missouri citizens under the law. Heikes concludes that this means the Missouri legislature specifically chose to exclude people suffering from personality disorders from the definition of a sexually violent predator, so the State may not now confine Heikes as a sexually violent predator on the basis of a personality disorder.

The Eastern District recently decided this issue in In re Pate, 137 S.W.3d 492 (Mo.App. E.D.2004). The appellant in Pate was diagnosed with narcissistic personality disorder with antisocial features. Id. at 495. The appellant argued that “because the phrase ‘personality disorder’ is not encompassed in the [Sexually Violent Predator] statutes, the legislature meant to exclude those disorders from the category of ‘mental abnormality.’ ” Id. at 497. Pate rejected the appellant’s argument, finding that (1) the appellant’s disorder was a “congenital or acquired condition” pursuant to section 632.480(3); (2) the appellant’s disorder affected his “emotional or volitional capacity which would predispose the person to commit sexually violent offenses” pursuant to section 632.480(3); and (3) the appellant had serious difficulty controlling his behavior. Id. at 497-98. Pate concluded that the appellant’s personality disorder qualified as a mental abnormality under Missouri’s Sexually Violent Predator statute and affirmed the probate court judgment of civil confinement. Id. at 498.

We agree with the Eastern District that a personality disorder can constitute a mental abnormality if all of the statutory elements are met. In the instant case, Heikes displayed all three statutory elements of a mental abnormality pursuant to section 632.480(3). First, Heikes’ APD is an acquired condition in that he displayed serious behavior problems prior to turning fifteen. Second, Heikes’ disorder affects his emotional and volitional capacity to the point that he is predisposed to commit sexually violent offenses because he is sexually aggressive and fails to exhibit victim empathy or to take any responsibility for his behavior. Third, Heikes’ numerous sex offenses (both convictions and uncharged offenses) indicate that he has serious difficulty controlling his behavior. Therefore, Heikes qualifies for commitment as a sexually violent predator.

Accordingly, Heikes’ claim that the trial court erred by admitting evidence that Heikes suffered from APD does not, on its face, establish substantial grounds for believing that manifest injustice or miscarriage of justice has occurred.

Conclusion

For the foregoing reasons, the judgment of the probate court is affirmed.

ELLIS, P.J., and SPINDEN, J., concur.

      . Statutory references are to Revised Statutes of Missouri Cumulative Supplement 2004, which incorporates the 2002 amendments to section 632.480.

      . The Rule of Civil Procedure regarding plain error (Rule 84.13) and the Rule of Criminal Procedure (Rule 30.20) regarding plain error are substantially similar such that cases construing one may be equally applicable to plain error review under the other.

      . Heikes points out that in Kansas, the statutory definition of sexually violent predator
      does include personality disorders. Kan. Stat. Ann. § 59-29a02(a) Cum.Supp. 2004, defines "sexually violent predator” as: "any person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in repeat acts of sexual violence.”


author: PATRICIA BRECKENRIDGE, Judge.

text:
    Holly A. BATHER, Respondent, v. William J. BATHER, Appellant.
    No. WD 64138.
    Missouri Court of Appeals, Western District.
    June 21, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 2, 2005.
    Application for Transfer Denied Sept. 20, 2005.

      J. Michael Murphy, Liberty, MO, for appellant.
    Steven D. Wolcott, Liberty, MO, for respondent.
    Before HOLLIGER, P.J., BRECKENRIDGE and ELLIS, JJ.
   PATRICIA BRECKENRIDGE, Judge.

William J. Bather (Father) appeals the trial court’s judgment modifying, on the motion of his former wife, Holly A. Bather, now Logan (Mother), physical custody parenting time of their daughter. Father claims that there was insufficient evidence of a change in circumstances that would authorize modification of custody under section 452.410, RSMo 2000. He further claims that there was insufficient evidence to permit restricting his visitation under section 452.400.2, and that the court erred in failing to make the findings he requested on the issue of restricting his visitation.

This court finds that, because the custodial arrangement in the judgment modified was designated as joint physical custody, the modification of the parenting time provisions was a modification of custody, governed by section 452.410. This court further finds that there was sufficient evidence that the modification of the parenting plan to establish a graduated schedule from short periods of supervised visitation to longer periods of unsupervised parenting time would serve the child’s best interests. There was insufficient evidence, however, that the modification of the schedule for parenting time in paragraph 1, subparagraphs (f) and (g), permitting Father to have unsupervised parenting time only on alternating weekends and holidays, would serve the child’s best interests. Therefore, the trial court erred in a portion of its modification of the physical custody parenting time provisions. The judgment is reversed, and the cause is remanded to the trial court with directions to modify the parenting plan to eliminate the provisions for unsupervised alternating weekends and holidays in paragraph 1, subparagraphs (f) and (g) and to, instead, substitute the physical custody parenting time provisions for unsupervised parenting time as ordered in the February 2001 modification judgment, which alternated weeks between parents. In addition, given the interrelatedness of child custody and child support, the trial court is directed to reconsider the issue of child support on remand. Father’s remaining points on appeal are without merit and, therefore, are denied.

Factual and Procedural Background

Father and Mother were married on March 8, 1991. Their daughter, Lauren Elizabeth Bather, was born on June 15, 1995. Father and Mother separated in February 1996, and their marriage was dissolved on December 30, 1997. The dissolution judgment provided that Father and Mother share joint legal and physical custody of Lauren. Mother was to have parenting time with Lauren each weekend from 8:30 am. Saturday until the following Monday at 5:30 p.m., and Father was to have parenting time at all other times. Additionally, Father had the right to select up to thirteen non-consecutive weekends per year when Lauren would remain with him through Saturday. On those weekends that Lauren would remain with Father, Lauren was to return to Mother at 8:30 am. Sunday and stay with Mother until 8:30 am. the following Tuesday. The judgment also set out a parenting time schedule for the holidays. Because the parties equally divided their parenting time, no child support was ordered.

Mother married David Logan in November 1998. Subsequently, on February 6, 2001, the trial court entered a judgment modifying the physical custody parenting time provisions to implement an agreement reached by Mother and Father. Under the agreement, Mother and Father alternated weeks with Lauren, beginning at 5:30 p.m. each Sunday. During the weeks that Lauren was with Father, Mother had parenting time on Thursday evenings from 3:30 p.m. to 8:00 p.m. During weeks that Lauren was with Mother, Father also had this same two and one-half hour parenting time on Thursday evenings.

The parties abided by this parenting time schedule until June 2002, when Mother claimed that Lauren disclosed that Father had sexually abused her. Mother called the Division of Family Services Abuse Hot Line and the Liberty Police Department. Two days later, Mother emailed Father and told him that Lauren had reported being sexually abused in his home and that, on the advice of DFS and the Liberty Police Department, Mother was not going to allow Father, or anyone acting on his behalf, to have contact with Lauren.

Mother took Lauren to Children’s Mercy Hospital to have her examined. The examination revealed no physical evidence to confirm sexual abuse. Nevertheless, the Clay County Prosecuting Attorney filed criminal charges against Father based upon the allegations of sexual abuse. As a special condition of his bond, Father was not allowed any contact with Lauren while the criminal charges were pending.

On August 29, 2002, Mother filed a motion to modify joint legal and physical custody. In her motion, Mother alleged that, on June 7, 2002, a referral was made to DFS alleging that Father had sexually abused Lauren, and an investigation was occurring between the police department, the prosecuting attorney’s office and others, including a determination by DFS “of a reason to suspect.” Mother further alleged that the Clay County grand jury had issued an indictment charging Father with multiple felony counts, and a condition of Father’s bond was that he have no contact with Lauren at the present time. Mother asked the court to modify the February 2001 judgment by ordering that Father have no parenting time with Lauren. Mother also asked for the appointment of a guardian ad litem.

Some of the criminal charges against Father were dismissed before the trial, and Father was acquitted of the remaining criminal charges in March 2003. In July 2003, Father filed a motion to modify custody. In his motion, he alleged that, since the February 2001 judgment, facts had arisen constituting a change of circumstances. Specifically, he alleged that Mother had “influenced said child into making false statements that [Father] improperly touched and abused his child”; Mother had “herself improperly touched and abused the parties’ child”; Mother had “willfully deprived [Father] of his court-ordered custody and visitation and custody [sic]”; and “[t]he child’s best interests, happiness, and welfare dictate and mandate that the primary custody of said child be granted to [Father], with reasonable visitation being granted to [Mother].” Father asked that custody be modified to grant him the majority of parenting time with Lauren, with Mother having parenting time on every other weekend, alternating holidays, and two weeks in the summer.

One week after filing his motion to modify, Father filed a motion asking that Mother be held in contempt. In this motion, Father alleged that he had not been able to see Lauren since June 9, 2002. He further alleged that, despite his having been acquitted of the criminal charges, Mother still refused to let the child see Father “to even begin ‘break in’ visitation periods.” According to Father, he made “numerous attempts to work out these visitation periods with [Mother], but [he was] still unreasonably, willfully, and without good cause being denied any visitation with his daughter, despite this court’s order.”

The court held a hearing on Father’s motion for contempt. On August 28, 2003, the court entered a temporary order requiring Mother and Father to participate in the Transitions Program. The court ordered Mother to deliver Lauren to the Transitions Program facility so that Father could have a series of eight visits with the child. The court also ordered Mother to produce Lauren for one ninety-minute visit with Father and the guardian ad li-tem. The trial court took the motion for contempt under advisement. In a separate order, the court ordered Mother, Father, Lauren, Lauren’s paternal grandmother, and Lauren’s stepfather to submit to psychological evaluations. In December 2003, Father filed a family access motion, and noticed the motion for hearing on December 10, 2003. The court declined to take up the motion at that time and set all motions for trial on February 25, 2004.

Trial was held on the parties’ motions to modify on February 25 and March 8-10, 2004. Father testified that the only way to ensure Lauren did not make false allegations in the future was to have 24-hour supervised visitation whenever she was with either party. Rosalyn E. Inniss, M.D., the psychiatrist the court appointed to evaluate the parties, also recommended supervised visitation as a measure of protection for all parties. On April 6, 2004, the court entered its judgment of modification. In the judgment, the court found that a substantial and continuing change of circumstances had occurred that rendered the prior physical custody order unreasonable. Specifically, the court stated:

Said change of circumstances includes the following:

a. Insufficient evidence was presented to the Court to support [Motherj’s allegation of abuse of the minor child by [Father];
b. Despite insufficient evidence to support said allegation, [Mother] is convinced that [Father] abused the minor child;
c. The minor child likewise appears to believe that said abuse occurred.

The court further stated that, “[a]s the result of the beliefs of [Mother] and the minor child, it is in the best interest of the minor child that both parties continue to have joint legal and joint physical custody of the minor child with. changes in the physical custody arrangement.”

The court’s modified parenting plan provides that Mother has “primary physical custody” of Lauren. The plan then set forth a schedule of Father’s parenting time. Under the schedule, Father and Lauren are to participate in the Transitions Program for eight weeks. After those eight weeks, Father is to have parenting time, supervised by the paternal grandmother, every Saturday from 10:00 a.m. to 6:00 p.m., for eight weeks. After this eight-week period, Father is to have parenting time, supervised by the paternal grandmother, on eight alternating weekends on Saturday from 10:00 A.M. to 6:00 p.m. and on Sunday from 10:00 a.m. to 6:00 p.m. and every Wednesday evening from 5:00 p.m. to 7:00 p.m., over a period of sixteen weeks. After this sixteen-week period, Father is to have parenting time, supervised by the paternal grandmother, on eight alternating weekends from Friday at 6:00 p.m. until Sunday at 6:00 p.m. and every Wednesday from 5:00 p.m. to 7:00 p.m„ over a period of sixteen weeks. After this sixteen-week period, Father is to have unsupervised parenting time on alternating weekends from Friday at 6:00 p.m. until Sunday at 6:00 p.m. and every Wednesday from 5:00 p.m. to 7:00 p.m., until further order of the court. The court awarded parenting time with each parent on alternating holidays and, if any of Father’s holidays occurs during Father’s supervised parenting time periods, Father’s holiday parenting time is also to be supervised by the paternal grandmother. Father appeals.

Standard of Review

This court’s review of a court-tried case involving matters of child custody is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Baxley v. Jarred, 91 S.W.3d 192, 196 (Mo.App.2002). Thus, this court will affirm the trial court’s judgment 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. Murphy, 536 S.W.2d at 32. The trial court is afforded greater deference in determining child custody than in other matters. McCubbin v. Taylor, 5 S.W.3d 202, 206 (Mo.App.1999). This court views the evidence and all reasonable inferences therefrom in the light most favorable to the judgment and disregards all contrary evidence and inferences. Cullison v. Thiessen, 51 S.W.3d 508, 511 (Mo.App.2001). The trial court’s determination of custody will not be disturbed on appeal unless this court is firmly convinced it is erroneous and the award is against the child’s best interests and welfare. Newsom v. Newsom, 976 S.W.2d 33, 36 (Mo.App.1998).

Trial Court Modified Custody, Not Visitation

On appeal, Father asserts in one of his points that the court’s judgment constituted a modification of custody and, in his other two points, that the court’s judgment constituted a modification of visitation. This court has recently held that, where the custodial arrangement in the judgment being modified was designated as “joint physical custody,” “an attempt to modify the time that the child mentioned in the judgment is with either parent is an attempt to modify custody and requires proof of the elements in section 452.410.1, i.e. change in circumstances and that modification is in the best interests of the child.” Timmerman v. Timmerman, 139 S.W.3d 230, 236 (Mo.App.2004). Where the judgment being modified designated the custodial arrangement as “sole physical custody with visitation,” “an attempt to modify visitation is governed by section 452.400.2.” Id.

The judgment being modified in this case, the February 2001 modification judgment, designated the arrangement as “joint physical custody” and awarded Mother and Father alternating weeks of parenting time. Thus, any change in the parenting time awarded either parent constituted a modification of custody under section 452.410.1 and will be reviewed as such. See id.

Insufficient Evidence Modified Parenting Plan in Child’s Best Interests

In his first point, Father contends there was insufficient evidence of a change in circumstances permitting modification and insufficient evidence that modification is in Lauren’s best interests. The trial court may modify custody if “it finds, upon the basis of facts that have arisen since 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.” Section 452.410.1. “When parents have joint physical custody, each parent is a custodian within the meaning of the statute.” Timmerman, 139 S.W.3d at 236. A presumption exists that a parent with custody remains suitable. McCubbin, 5 S.W.3d at 207. Thus, the parent requesting the change of custody has the burden of proving the change in circumstances warranting custody modification. Id.

In this case, the court found that a change in circumstances warranting modification has occurred in that, although there is insufficient evidence to support Mother’s allegation that Father abused Lauren, Mother is “convinced” that Father abused Lauren and, likewise, Lauren “appears to believe that said abuse occurred.” Because of Mother’s and Lauren’s beliefs that Father abused Lauren, the court found that it was in Lauren’s best interests to modify the February 2001 judgment to reduce Father’s parenting time and make his parenting time supervised for an initial period, per the schedule set forth earlier in this opinion.

Father first argues that Mother’s and Lauren’s beliefs do not constitute a change in circumstances warranting modification of custody. Contrary to his claim of error on appeal, however, Father filed a motion to modify custody, in which he alleged that since the February 2001 judgment, facts had arisen constituting a change of circumstances. Mother asserted in her motion to modify that the substantial change of circumstance was Father’s sexual abuse of Lauren. Father asserted that the substantial change of circumstance was the fact that Mother had influenced Lauren “into making false statements that [Father] improperly touched and abused” her and Mother’s denial of parenting time to him, as a result of these false allegations. The judgment Father challenges on appeal was entered after a trial on both Mother’s and Father’s motions to modify. In effect, in finding there was insufficient evidence to support Mother’s allegations that Father abused Lauren, the trial court reached the conclusion sought by Father in his motion to modify custody, which is that a substantial change in circumstances had arisen because of the false allegations of sexual abuse. Having pleaded and presented evidence of a change in circumstances warranting modification of custody, Father cannot now be heard to complain that there was no change in circumstances. See, e.g., Howsmon v. Howsmon, 77 S.W.3d 752, 757 (Mo.App.2002) (party bound by position taken in circuit court and cannot complain on appeal of alleged error which party joined in, acquiesced, or invited). Therefore, Father’s only cognizable argument on appeal is that the trial court’s modification of the parenting time was not in Lauren’s best interest.

“In evaluating the best interests of the child for purposes of custody modification, the court is required to consider all relevant factors set forth in Section 452.375.2.” Sanders v. Busch, 123 S.W.3d 311, 314 (Mo.App.2003). The eight factors in section 452.375.2 are:

(1) The wishes of the child’s parents as to custody and the proposed parenting plan submitted by both parties;
(2) The needs of the child for a frequent, continuing and meaningful relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child;
(3) The interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child’s best interests;
(4) Which parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent;
(5) The child’s adjustment to the child’s home, school, and community;
(6) The mental and physical health of all individuals involved, including any history of abuse of any individuals involved. If the court finds that a pattern of domestic violence has occurred, and, if the court also finds that awarding custody to the abusive parent is in the best interest of the child, then the court shall enter written findings of fact and conclusions of law. Custody and visitation rights shall be ordered in a manner that best protects the child and any other child or children for whom the parent has custodial or visitation rights, and the parent or other family or household member who is the victim of domestic violence from any further harm;
(7) The intention of either parent to relocate the principal residence of the child; and
(8) The wishes of a child as to the child’s custodian.

The facts and circumstances of this case concern all of the factors, except (7), the intent of either parent to relocate. The evidence will be discussed generally, without reference to any particular factor.

The relevant evidence, at trial, was Mother’s testimony that, because of her and Lauren’s beliefs that Father sexually abused Lauren, she was seeking not just to reduce Father’s parenting time, but to eliminate it. If the court chose to permit Father to have contact with Lauren, however, Mother believed that she needed to have the legal ability to deny Father contact with Lauren until Lauren is eighteen years old if, in Mother’s opinion, the contact is not “safe.” Mother has acted on her belief that Father abused Lauren and should have no contact with Lauren by repeatedly denying Father and paternal grandmother any contact with Lauren. Mother has denied contact even though Father was acquitted of all criminal charges in March 2003, and even though a mental health professional opined that Lauren would not be harmed by such contact. Father had no contact with Lauren from June 2002 until September 2003, after the court ordered Mother to make Lauren available to participate in the Transitions Program with Father.

Mother attempted to negatively influence the Transitions Program visits by communicating to Betsy Baird, the Transitions Program Director, that Lauren was afraid to see Father and did not want to see him. Mother also told Ms. Baird that Lauren “was angry because she wanted to ask her father some questions about the sexual abuse.” Contrary to Mother’s statements, Ms. Baird, who stayed with Father and Lauren for the entire first visit, observed that Lauren was initially shy and quiet but did not appear to be angry or afraid of Father, and Lauren did not confront him at all. Lauren and Father merely talked, played games, and ate together during the one and one-half hour visit. According to Ms. Baird, all of Father’s eight visits with Lauren through the Transitions Program “went well.” At the close of the Transitions Program visits, Father, Lauren and the guardian ad litem went to dinner together. The guardian ad litem testified that Lauren did not appear to be afraid of Father, nor did she appear to be reluctant to touch him or talk to him. Lauren sat close to Father, leaned on him, laughed with him, and hugged him.

Despite the success of the Transitions Program visits and the dinner with the guardian ad litem, Mother continued to deny Father any contact with Lauren. When Father and Lauren’s paternal grandmother attempted to pick up Lauren from school for a visit on November 24, 2003, Mother became hysterical, cried, and yelled at the school principal and two police officers, who had been called by the school principal. The principal testified that Mother indicated Father had raped and sodomized Lauren. One of the police officers recalled Mother’s saying that Father had “raped his child”; and both officers testified that Mother said that Father had sexually molested Lauren. Mother also indicated to the police that she had an order that barred Father from having custody of Lauren. Despite Mother’s inability to produce such an order, the officers refused to release Lauren to Father and, instead, let Mother take Lauren home.

To the degree it exists, Lauren’s hesitancy about resuming contact with Father is not only based on Lauren’s belief that the alleged abuse by Father actually occurred. Rather, Lauren’s hesitance is attributable to Mother’s denying any contact between Lauren and Father for over fifteen months and her telling Lauren that she does not want Lauren to see Father. Mother has acted on her belief that Father abused Lauren by making it clear to Lauren, who was eight at the time of trial, that she did not want her to visit Father. Mother admitted to telling Lauren that she does not think it would be “safe” for Lauren to be alone with Father now, and that she does not think there is a “safe way” for Lauren to have contact with Father. The record of Lauren’s in-camera interview indicates that Lauren is very aware that Mother does not want her to see Father. Despite this, Lauren indicated that the more time she spent with Father, the easier it was for her to do so. In Dr. Inniss’s opinion, “the relationship between father and daughter is salvageable and has the potential to continue.” Dr. Inniss does not consider Lauren to be in imminent danger while with Father and found no reason to prohibit Father from having ongoing contact with Lauren.

Dr. Inniss offered her professional opinion as to the effect of Mother’s belief on Lauren’s welfare. In her report, Dr. In-niss stated that Mother “comes across as on a continual quest to keep things going until someone finds [Father] guilty of abusing Lauren,” and it is Mother’s intent “to try the allegations of sexual molestation of Lauren within the current court setting and in the context of visitation.” Dr. Inniss believed it is “more than likely that [Mother] will continue to try and foster [Father’s] being tried for the alleged abuse in various arenas until he is found guilty of what she believes has occurred.” Indeed, Dr. Inniss opined that “[i]t is the intent and sole purpose of [Mother] [ ] that Lauren have as little contact with her biological father as possible and that Lauren, now at the age of eight, has become her full time child and that Lauren’s family should be mother, [stepfather] and Lauren.”

Dr. Inniss described the negative impact of Mother’s conduct on Lauren thus far:

The saddest part of all is in regards to Lauren. Lauren precipitously lost contact with her father and grandmother after the allegations of sexual abuse. She lives with her mother and stepfather, neither of whom want or support Lauren having contact much less a relationship with her father. For Lauren the issue is not healing from alleged abuse but now the potential to loss [sic] of a parent in this instance her mother if contact is reestablished with her father and the relationship continues and is mended.

Dr. Inniss reiterated this in her testimony at trial, stating that she believed, “very much so,” that Lauren feels caught in the middle between her parents, and that it is possible that Lauren has concerns that “picking one parent loses the other parent! ] somehow.” Moreover, Dr. Inniss testified that she has concerns as to whether Mother could “emotionally be there for [Lauren] if she reattached to dad in a positive fashion.”

Mother’s belief that Father sexually abused Lauren has had a much greater negative impact on Lauren’s welfare than Lauren’s own apparent belief that Father sexually abused her. Although Mother indicated that contact with Father upsets Lauren and is emotionally difficult for her, the Transitions Program director and the guardian ad litem, both of whom witnessed Father with Lauren, testified that Lauren did not appear to be afraid of or angry at Father and, in fact, had a good time laughing and playing with him. Lauren indicated that she is nervous of resuming contact with Father not just because of the sexual abuse allegations, but because she has not seen him in a long time and she knows Mother does not want her to see Father. According to Dr. Inniss, Lauren is torn between her parents and is afraid of losing Mother if she resumes contact with Father.

Indeed, Dr. Inniss recommends that Father’s parenting time with Lauren be supervised solely because of Mother’s conduct. In her opinion, Mother will “overtly and covertly sabotage” Father’s contact with Lauren. Dr. Inniss specifically stated that she is recommending supervision “not because I consider Lauren to be in imminent danger while with her father, but as a measure of protection to all parties.” Dr. Inniss opined that “further allegations are more than likely to occur,” and supervision would be to “everyone’s benefit” and “would also rend early witness to any further allegations.”

On the basis of this evidence, it was proper for the court to restrict the custody plan while the abuse allegations were being investigated. It was proper for the court to slowly reintroduce Lauren to her Father through the Transitions Program and thereafter. Supervision was appropriate as both Father and Dr. Inniss testified that they believed supervision would be necessary and beneficial; There was no evidence to support a restriction of Father’s parenting time, however, once Lauren and Father had an opportunity to reestablish their relationship. The only person who will substantially benefit from the court’s modified parenting plan is Mother. Although Mother did not obtain the parenting plan she was seeking, which was that Father have no contact with Lauren until Lauren is eighteen or that Lauren’s contact with Father be left to Mother’s discretion, Mother did succeed in reducing and restricting Father’s long-term parenting time significantly from the February 2001 modification judgment. Essentially, the trial court’s judgment permits Mother to benefit from her persistence in believing that Father sexually abused Lauren. Her belief, however, has been deemed unsubstantiated in both Father’s criminal trial and the trial in this case and has had a direct and substantial negative impact on Lauren’s welfare.

Therefore, although the trial court’s determination that a change of circumstances has occurred permitting modification is supported by sufficient evidence, there is insufficient evidence that the entirety of the modification ordered by the court is in Lauren’s best interests. The evidence in this case indicates the modification of the schedule for parenting time in paragraph 1, subparagraphs (f) and (g), permitting Father to have unsupervised parenting time only on alternating weekends and holidays is not in Lauren’s best interests. Once Lauren and Father have had an opportunity to reestablish their relationship, the evidence does not support a long-term reduction in the amount of Father’s parenting time. Accordingly, this cause is remanded to the trial court to remove these subparagraphs and, instead, substitute the parenting time provisions of the February 2001 modification judgment.

No Section 452.400.2 Evidence or Findings Required

In his second point, Father asserts that the trial court erred in modifying custody and visitation without any evidence that Father’s visitation would endanger Lauren’s physical health or impair her emotional development. In particular, Father claims that before his visitation can be restricted, section 452.400.2 requires evidence that Father’s visitation would endanger Lauren’s physical health or impair her emotional development. In his third point, Father asserts that the trial court erred in failing to include in its judgment findings concerning whether his visitation would endanger Lauren’s physical health or impair her emotional development. Specifically, Father claims that Rule 73.01(c) requires the trial court to include in its opinion findings on any controverted fact issues specified by the parties. Father contends that he made a request for a finding as to whether his custody and visitation would endanger Lauren’s health or impair her emotional development and the trial court’s failure to include such findings is reversible error. For ease of discussion, this court considers Father’s points two and three together.

Under section 452.400.2, the trial court may modify visitation, “but the court shall not restrict a parent’s visitation rights unless it finds that the visitation would endanger the child’s physical health or impair his or her emotional development.” Section 452.400.2, however, is only applicable to a change in visitation. Timmerman, 139 S.W.3d at 234. As discussed above, the judgment being modified in this case, designated the arrangement as “joint physical custody” and awarded Mother and Father alternating weeks of parenting time. Thus, a change in parenting time awarded either parent constituted a modification of custody and not a change in visitation.

Section 452.410 governs modification of custody decrees, not section 452.400. Id. at 235. See also P.L.W. v. T.R.W., 890 S.W.2d 688, 691 (Mo.App.1994) (“[section] 452.400.2 applies where, as in the instant case, the issue is whether visitation privileges should be restricted as opposed to whether custody should be transferred”). Section 452.410 has no requirement that evidence be adduced that a child’s physical health or emotional development be impaired before custody is modified. Consequently, the trial court did not restrict Father’s visitation within the meaning of section 452.400 and, therefore, evidence that visitation with Father would endanger Lauren’s physical health or impair her emotional development before modifying custody was not required.

Finally, the trial court’s failure to comply with Father’s request for findings concerning whether his visitation would endanger Lauren’s physical health or impair her emotional development does not mandate reversal in this case. “[F]ail-ure of a trial court to issue findings which were properly requested does not always require reversal.” In re Marriage of Find, 926 S.W.2d 201, 204 (Mo.App.1996). The findings made in the trial court’s judgment makes clear the basis for the court’s ruling and permits meaningful review on appeal. Id. (remand not required when record is sufficient to support judgment). Consequently, this court cannot say that the trial court’s failure to make the findings requested by Father is reversible error. Father’s second and third points are denied.

Based on this court’s disposition of the issue of child custody, and the interrelatedness of child custody and child support, the trial court is directed to reconsider the issue of child support on remand. Buschardt v. Jones, 998 S.W.2d 791, 802 (Mo.App.1999). See also Sinclair v. Sinclair, 887 S.W.2d 355, 360 (Mo.App.1992) (“When reversing one portion of a decree, sometimes it is appropriate to reverse other portions of the decree so that, on remand, the trial court can consider all necessary related portions.”). Accordingly, the case is remanded to the trial court for further proceedings consistent with this opinion.

All concur.

      . All statutory references are to the Revised Statutes of Missouri 2000.

      . The record does not specify the number or nature of the sexual abuse charges against Father.

      . This motion was not included in the legal file.

      . It should be noted that "primary physical custody” is not a custodial arrangement authorized under law. See Aurich v. Aurich, 110 S.W.3d 907, 912 (Mo.App.2003) (citing Loumiet v. Loumiet, 103 S.W.3d 332, 338 (Mo.App.2003)) (noting that section 452.375.1(1), RSMo 2000, does not provide for "primary physical custody” or a "primary physical custodian”).