Opinion
No. ED77314
Filed: October 3, 2000
APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY, HONORABLE MARTIN SCHIFF, JR.
Margo L. Green and Elliot I. Goldburger, counsel for appellant.
Alan W. Cohen, counsel for respondent.
Before Clifford H. Ahrens, P.J. and James R. Dowd, J.
Mother, Barbara Jeanne Brethorst, appeals from that part of the trial court's judgment denying her motion to modify the decree of dissolution of her marriage to father, Jon Matthew Brethorst. We affirm.
Father does not appeal from that part of the trial court's judgment denying his motion for change of physical custody of the children to him and for child support.
In February 1996, the trial court entered a decree of dissolution of the parties' marriage. The court awarded mother primary physical custody of the parties' two children, a daughter born November 1990 and a son born March 1994. The court awarded both parties joint legal custody of the children and ordered father to pay child support.
In December 1998, mother filed a motion to modify the decree to permit her to remove the children from the state because she intended to move to Raleigh, North Carolina. Father filed a cross-motion to modify, seeking primary physical custody of the children and an order for mother to pay child support. At the hearing on the motions, mother testified that in March 1999, she moved to Raleigh, North Carolina, because she accepted a promotion with her employer, IBM. She received a raise in her base salary of about 19 percent plus a bonus of 10 to 15 percent. She stated that no positions were available in St. Louis, because IBM was downsizing its office there. She bought a four-bedroom home in North Carolina. Her gentleman friend also moved to North Carolina, but maintained a separate residence. He was self-employed and worked out of his home, managing his money. He and mother did not intend to marry in the near future.
Father testified that for fifteen years, he had been a police officer in a St. Louis County municipality. He lived in a one-bedroom apartment in the basement of a synagogue. Because of father's varied work schedule, his sister helped him care for the children. Father was active in coaching the children's soccer and baseball teams. Both parties testified that prior to mother's move to North Carolina, the visitation schedule worked well and they cooperated in adjusting visitation to accommodate father's work schedule.
The trial court denied father's and mother's motions to modify. The court did not make specific findings of fact and conclusions of law, but did discuss in its judgment its reasons for not permitting the children to move.
Our review of this case is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976). On appeal, we do not retry the case, but accept as true the evidence and reasonable inferences therefrom in the light most favorable to the prevailing party and disregard contradictory evidence.Pokrzywinski v. Pokrzywinski, 8 S.W.3d 222, 223 (Mo.App.E.D. 1999). We will affirm the trial court's judgment even if there is evidence that would support a different result. Carter v. Schilb, 877 S.W.2d 665, 667 (Mo.App.W.D. 1994).
In her first point, mother claims that the trial court erred in failing to apply the four-pronged test enunciated in Riley v. Riley, 904 S.W.2d 272 (Mo.App.E.D. 1995), to determine the propriety of mother's request to relocate the children.
In a modification proceeding, the trial court determines whether, based on facts that have arisen since the previous decree, a substantial change has occurred in the circumstances of the children or the children's custodian. Pokrzywinski, 8 S.W.3d at 224. Next, the court considers whether, in light of the changed circumstances, a modification is necessary to serve the best interests of the children under section 452.410, RSMo (1994). Id. Because modification involves child custody, the trial court is accorded greater deference than in other cases. Id.
Disputes concerning the relocation of children must be resolved on their particular facts rather than by rigid application of rules. Green v. Green, No. 75746, slip op. at 2 (Mo.App.E.D. June 30, 2000). When determining whether to allow a parent to remove children from the state, the paramount concern is the best interests of the children. Puricelli v. Puricelli, 969 S.W.2d 289, 296 (Mo.App.E.D. 1998). This court has consistently applied four factors to decide the propriety of the relocation of children by the custodial parent. See, e.g., Pokrzywinski, 8 S.W.3d at 225. These four factors are: (1) the prospective advantage of the move in improving the general quality of life for the custodial parent and the children; (2) the integrity of the custodial parent's motives in relocating; (3) the integrity of the non-custodial parent's motives for opposing relocation and the extent to which it is intended to secure a financial advantage with respect to continuing child support; and (4) whether there is a realistic opportunity for visitation that can provide an adequate basis for preserving and fostering the non-custodial parent's relationship with the children if relocation is permitted. Riley, 904 S.W.2d at 277. All four factors of the test, however, need not favor a particular party. Green, slip op. at 2. The primary concern is how each factor tends to shed light on the best interests of the children in a particular case. Id. In applying these factors, we are mindful that in our highly flexible society, it is unrealistic to confine a custodial parent to a fixed geographical area, if removal to another area for reasons such as change of employment, remarriage, etc., is consistent with the best interests of the children.Riley, 904 S.W.2d at 276.
We disagree with mother's assertion that the court did not apply the four-pronged Riley test. Although the court did not specifically refer to the Riley decision, the court did address the factors in its judgment. The court in essence found that the second and third factors of theRiley test favored mother:
Each side presented credible and compelling evidence in support of his or her position on the [relocation], and the real problem is that both parties have substantial merit regarding their respective positions. Each party is a fine, caring and loving parent. The Court is persuaded from the evidence that each parent's motive in advocating or opposing relocation was in total good faith, that each had bona fide reasons for the position taken, and that neither party was being arbitrary or unreasonable in the approach being urged.
As to the first factor, the trial court was equivocal on the issue of whether the move would improve the quality of life for the children. Thus, the court did not find that the first factor favored either parent:
Whether the general quality of life for the children would improve if relocation were permitted is not totally clear, although it was certain that their financial status, educational opportunities, religious schooling and training, and extra-curricular activities would not be impaired through relocation and might very well be improved.
Those findings on the first three factors of the Riley test were supported by substantial evidence.
The court, however, found that the fourth factor favored father:
Measured against this advantage [the possibility of an improved quality of life] is the loss the children, if relocated, would necessarily incur in their frequent and consistent contacts throughout the entire year that they now enjoy with their father, who plays and has played a major part in their life, especially in their soccer and baseball activities, and whose family members that also are close to the children all reside in Missouri, as does [Mother's] family.
The court further found that although the denial of mother's request to remove the children to North Carolina would "cause her much loss of freedom . . . and . . . financial detriment both personally and professionally," the court reasoned that given "her background and work experience and her obvious employment skills," she would be "able to find appropriate . . . employment in the St. Louis vicinity if she elects to return." Finally, when the court weighed the disadvantages of permitting relocation and the interruption of the children's relationship with their father against mother's need to relocate, it concluded that it was not in the children's best interests to relocate.
Because the trial court based its denial of mother's request to relocate solely on Riley's fourth factor, we focus on that factor in determining the propriety of the trial court's decision. The fourth factor directs the trial court to consider the realistic opportunity for visitation that could provide "an adequate basis for preserving and fostering the noncustodial parent's relationship with the child" if the move is permitted. Riley, 904 S.W.2d at 277. In a recent case, the Western District suggested that in light of the amendment to section 452.377, RSMo (Cum Supp. 1999), the fourth factor should be revised to direct the trial court to consider the realistic opportunity for visitation that could provide the child with "frequent, continuing and meaningful contact with the nonrelocating party" if the move is permitted. Sadler v. Favro, 23 S.W.3d 253, 258 (Mo.App.W.D. 2000). Despite the difference in wording between these two tests, the meaning of the phrases is essentially the same. Both tests require the court to focus on whether the nonrelocating parent can continue and foster his or her relationship with the children if the move is allowed.
Under the previous version of section 452.377, RSMo (1994), the custodial parent had to receive the court's permission to relocate the minor child's principal residence only if the relocation was going to be outside Missouri. The amended version of Section 452.377, RSMo (Cum. Supp. 1999) requires the custodial parent to receive the court's permission to relocate the minor child's principal residence anywhere, including within the state. If the nonrelocating party objects to the relocation, the amended version of section 452.377 sets forth the procedure for obtaining permission from the court to relocate. The amended statute addresses visitation after relocation as follows:
If relocation is permitted:
(1) The court shall order contact with the nonrelocating party including custody or visitation and telephone access sufficient to assure that the child has frequent, continuing and meaningful contact with the nonrelocating party unless the child's best interest warrants otherwise. . . . (Emphasis added).
Here, the evidence was that father was actively involved in the children's lives. He coached their soccer and baseball teams, but would be unable to do so if they relocated to North Carolina. His employment as a police officer permitted him to participate in the children's sports and activities, because he was able to take "comp time" to attend their events. If the children moved, he would be denied this additional time to interact with them. In addition, under the decree of dissolution, he exercised his visitation on his days off, which consisted of three days off after nine days of work. Although his employment as a police officer resulted in a varied schedule, he and mother cooperated to accommodate his work schedule so that he could exercise his visitation with the children. If the children relocated, there would be less flexibility for their visitation schedule to conform to father's work schedule. For example, many of mother's proposed visitation dates were around the holidays when father would be required to work.
Mother also argues that where all or most of the Riley factors favor the relocating parent, the trial court's refusal to allow the custodial parent to move constitutes reversible error. See, e.g., Effinger v. Effinger, 913 S.W.2d 909, 912 (Mo.App.E.D. 1996). But, where the factors favor neither parent or where the factors favor the noncustodial parent, the trial court's denial of the request to move will be affirmed.Id. Here, two of the factors favored mother, one favored neither parent, and one favored father. This is not a situation where all or a majority of the factors weighed in favor of mother such that the trial court should have allowed the move.
The trial court's conclusion that it was not in the children's best interests to move to North Carolina was supported by substantial evidence. Mother's first point is denied.
In her second point, mother asserts the trial court erred in failing to make findings specifically related to the fourth factor of the Riley test. We disagree. The court specifically found that the children would suffer a "loss . . . in their frequent and consistent contacts" with father. While this phrase is not identical to the wording of either the Riley test ("basis for preserving and fostering the noncustodial parent's relationship") or the Sadler test ("frequent, continuing and meaningful contact"), the meaning of the court's wording in the instant action is essentially the same as that of the two other tests. Mother's second point is denied.
In her third point, mother argues that the trial court's refusal to permit relocation was against the weight of the evidence because the evidence established not only that there was a change in circumstances but also that relocation was in the best interests of the children.
In a modification proceeding, the court first determines whether a substantial change has occurred in the circumstances of the children or the children's custodian. Pokrzywinski, 8 S.W.3d at 224. Next, the court considers whether, in light of the changed circumstances, a modification is necessary to serve the best interests of the children.Id. Thus, the court does not consider the best interests of the children unless the court makes the initial determination that a change in circumstances has occurred. Where, as here, the trial court did not make specific findings of fact and conclusions of law, all facts upon which no specific findings have been made should be interpreted as having been found in accordance with the result reached. Gerecke v. Gerecke, 954 S.W.2d 665, 668 (Mo.App.S.D. 1997). Thus, implicit in the court's finding that it was not in the children's best interests to move is a predetermination of changed circumstances.
We next address mother's assertion that the evidence established that the move was in the best interests of the children. We decided previously in this opinion that there was substantial evidence to support the trial court's conclusion that the move was not in the best interests of the children. Mother's third point is denied.
In her fourth point, mother challenges the trial court's denial of her motion to modify on the basis that section 452.377 is unconstitutional.
To preserve a constitutional question for appellate review, a litigant must, among other things, raise the question at the earliest opportunity consistent with good pleading and orderly procedure. State ex rel. York v. Daugherty, 969 S.W.2d 223, 224 (Mo.banc 1998). In the instant action, mother admits that she did not raise the constitutional attack in her pleadings, but urges this court to review for manifest injustice or miscarriage of justice. Because mother failed to preserve her constitutional challenge for our review, her fourth point is denied.
The judgment of the trial court is affirmed.
We deny father's motion for attorney's fees pending appeal and motion to strike mother's reply brief.