Opinion
No. 58972
Opinion Filed: January 23, 2001
APPEAL FROM THE CIRCUIT COURT OF CLAY COUNTY, THE HONORABLE JAMES EDWARD WELSH, JUDGE
David K. Holdsworth, Liberty, for appellant
Patrick Beeman, Liberty, for respondent
Before Stith, P.J., Ulrich, J. and Smart, J.
Brian Kelling (Father) appeals the judgment of the trial court entered after this court's remand in Weaver v. Kelling , 18 S.W.3d 525 (Mo.App.W.D. 2000) ( Weaver I ). In Weaver I , the trial court's judgment allowing Deborah Weaver (Mother) to relocate to Texas with the parties' three minor children was vacated and the case was remanded with directions to employ the four-factor test to determine if the relocation serves the best interest of the children. On remand, the trial court made findings of fact and conclusions of law on the four-factor test and again allowed Mother to relocate to Texas with the children. In this appeal, Father contends that the trial court erred in denying his Cross-Motion to Modify because Mother's proposed relocation to Texas was a change in circumstances that was not in the best interest of the children. Father also claims that the trial court erred in permitting Mother to relocate with the children to Texas because (1) the court's finding that relocation was in the best interest of the children was against the weight of the evidence and not supported by substantial evidence and (2) Mother failed to notify him of her proposed relocation as required by section 452.377, RSMo Cum. Supp. 1998.
FACTS AND PROCEDURAL BACKGROUND
Mother and Father were divorced in February 1995. Pursuant to the parties' joint custody agreement, the court awarded the parties joint legal custody of their three minor children with Mother receiving primary physical custody. The court also awarded Father reasonable visitation including one overnight period every weekend and one weekday lunch period per week for the children not enrolled in school full-time. And although not specified in the decree, Father's visitation typically included Monday overnight and Thursday morning with the children not in school. In November 1997, Mother filed a Motion to Modify Visitation Schedule seeking to change the visitation schedule from one overnight every weekend to alternating weekends. Mother remarried in April 1998, and soon thereafter filed her First Amended Motion to Modify Visitation Schedule seeking to change the visitation schedule and to increase Father's child support obligation.
In October 1998, Mother's new husband accepted a promotion requiring him to transfer to Texas. As a result, Mother filed a Motion for Temporary Removal of Children from the State of Missouri seeking to gain a court order granting her permission to relocate the children to Texas. Thereafter, Father filed a Motion to Dismiss Mother's motion and a Motion to Quash. Mother filed her Second Amended Motion to Modify Visitation Schedule in November 1998 again seeking a change in the visitation schedule and permission to relocate the children to Texas. Father filed his answer to Mother's Second Amended Motion and his Cross-Motion to Modify seeking primary physical custody of the children.
Following a hearing on the motions, the trial court entered its First Amended Judgment and Order Modifying Decree of Dissolution in April 1999 ordering, among other things, that Mother retain primary physical custody of the parties' children and permitting Mother to relocate with the children to Texas. Father appealed the trial court's judgment to this court. This court vacated the judgment finding that nothing in the record indicated that the trial court employed the four-factor test to determine if the relocation served the best interest of the children and remanded the case to the trial court for further findings. Weaver I , 18 S.W.3d at 529 .
On remand, the trial court entered its Judgment Pursuant to Appellate Mandate again allowing Mother to relocate to Texas with the children. The court found that relocation was in the best interest of the children because the family income will most likely substantially increase; a consistent visitation pattern will result in a more harmonious, less hectic transfer of custody between the parties; and communication between the parties concerning the children will actually be enhanced. The court also found that neither party had improper motives in requesting or challenging the relocation of the children. Finally, the court found that the new visitation schedule provides Father with a realistic opportunity for visitation that will allow him interaction and input in the children's lives. This appeal by Father followed.
MODIFICATION OF CUSTODY
Father first claims that the trial court erred in failing to grant him primary physical custody of the children because Mother's proposed move to Texas constituted a change in circumstances that was not in the best interest of the children. In child custody matters, an appellate court gives deference to the trial court's assessment of what serves the best interest of the child and that judgment will not be disturbed on appeal unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Suffian v. Usher , 19 S.W.3d 130, 135-136 (Mo.banc 2000); Murphy v. Carron , 536 S.W.2d 30, 32 (Mo.banc 1976); Thomas v. Thomas , 989 S.W.2d 629, 633 (Mo.App.W.D. 1999). A trial court's determination in a child custody proceeding is given greater deference than in any other type of case. Suffian , 19 S.W.3d at 136; Brandow v. Brandow , 18 S.W.3d 584, 587 (Mo.App.W.D. 2000). The evidence and inferences drawn therefrom are viewed in a light most favorable to the judgment. Suffian , 19 S.W.3d at 136 . The judgment of the trial court will not be disturbed unless the welfare of the child requires some other disposition or the judgment is manifestly erroneous. Brandow , 18 S.W.3d at 587; Hicks v. Hicks , 969 S.W.2d 840, 843 (Mo.App.W.D. 1998).
A trial court may not modify a prior custody decree under section 452.410 unless it finds, on 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 modification is necessary to serve the best interest of the child. § 452.410.1, RSMo 1994; Mobley v. Phillips , 942 S.W.2d 399, 400-401 (Mo.App.W.D. 1997). The party awarded custody in the prior decree is presumed to be a suitable custodial parent, and the party seeking to change the custody arrangement bears the burden of proof. Mobley , 942 S.W.2d at 401 . Remarriage and a new spouse's acceptance of employment in another state may constitute changed circumstances sufficient to modify custody. Newell v. Rammage , 7 S.W.3d 517, 521 (Mo.App.W.D. 1999). The transfer of custody, however, must still be in the best interest of the child. Id. ; McElroy v. McElroy , 910 S.W.2d 798, 803 (Mo.App.E.D. 1995).
While Mother's relocation of the children to Texas constituted changed circumstances sufficient to modify custody, the record supported the trial court's determination that Mother's retention of primary physical custody of the children was in their best interest. The evidence showed that the primary concern of both parents was the best interest of the children. Although the evidence showed that Father regularly exercised his visitation with the children and frequently participated in their extracurricular activities, it also revealed that Mother had been the children's primary caregiver since their birth. According to Father's testimony, Mother was a good mother. And Mother's husband's new job in Texas would allow her to stay at home with the children when they were not in school. Father failed to overcome the presumption that Mother was a suitable custodian. The trial court's judgment that the best interest of the children required that Mother be allowed to retain primary physical custody was supported by substantial and competent evidence and was not against the weight of the evidence. The point is denied.
RELOCATION OF CHILDREN TO TEXAS
Next, Father claims that the trial court erred in permitting Mother to relocate with the children to Texas because (1) the court's finding that relocation was in the best interest of the children was against the weight of the evidence and not supported by substantial evidence and (2) Mother failed to notify him of her proposed relocation as required by section 452.377, RSMo 1994.
Under section 452.377, a party seeking to relocate a minor child's principal residence must prove that the proposed relocation is made in good faith and is in the best interest of the child. § 452.377.9, RSMo Cum. Supp. 1998; Sadler v. Favro , 23 S.W.3d 253, 258 (Mo.App.W.D. 2000). When determining whether to allow a parent to remove a child from the state, the trial court's paramount concern is the best interest of the child. Newell , 7 S.W.3d at 522; Shaw v. Shaw , 951 S.W.2d 746, 748 (Mo.App.W.D. 1997). "A good environment and stable home are primary considerations in determining a child's best interests." Shaw , 951 S.W.2d at 748 . The following four factors should be considered in determining the propriety of relocation:
the prospective advantages of the move, including a consideration of whether or not the move will improve the general quality of life for the party seeking to relocate and the child;
the motives of the party seeking to relocate, including a consideration of whether or not he or she is attempting to defeat or to frustrate the nonrelocating party's visitation rights;
the nonrelocating party's motives for opposing relocation, including a consideration of the extent to which it is intended to secure financial advantage in continuing child support; and
the realistic opportunity for visitation which can provide frequent, continuing and meaningful contact for the nonrelocating party with the child if the move is permitted.
Sadler , 23 S.W.3d at 258 .
Substantial evidence revealed that the prospective advantages of the move weighed in favor of Mother moving the children to Texas. Evidence was introduced that Mother's new husband, who had been employed by Yellow Freight System for nineteen years, received a promotion within the company that required his transfer to Texas. Mother's husband was promoted from shift operations manager to general operations manager, which included a pay increase of $7000 per year in his base salary and a potential to earn an additional 40% of his salary in bonuses. The distribution center manager at Yellow Freight testified through deposition that the promotion received by Mother's husband was a five-grade-level jump and "basically unheard of" in the company and that his refusal to accept the promotion may have been detrimental to his career at the company. Even before Mother's new husband was offered and accepted the promotion, Mother sought to modify Father's visitation schedule. At trial Mother testified that the then existing hectic transfer of custody for visitation was not in the children's best interest and the children's activity schedules made Father's visitation unworkable. Finally, Mother testified that she did not plan to work in Texas and would be at home with the children when they were not in school. The evidence supported the trial court's finding that the move to Texas will improve the general quality of life of Mother and the three children and provide them a more stable environment.
As to the parties' motives, both testified that their primary concern was for the children's best interest. While Mother testified that the communication between Father and her was not satisfactory and that Father was often controlling and manipulative, she also testified that Father's equal participation in the decision making for the children was important. Furthermore, Mother testified that her motive in moving the children to Texas was to be with her new husband and to provide the children with a more stable environment. As previously noted, Mother sought modification of Father's visitation schedule before her husband received his promotion citing Father's disruptive "back and forth" visitation schedule. The evidence supported the trial court's finding that Mother's motive in moving to Texas was based on her desire to provide the best possible quality of life for the children and not to deprive Father of his visitation rights with the children. Similarly, nothing in the record indicated that Father had an improper motive for opposing the relocation.
Finally, substantial evidence was presented that relocation of the children to Texas would not prevent Father from enjoying frequent, continuing, and meaningful contact with the children. Under the parties' original joint custody agreement adopted by the trial court in 1995, Father had visitation with the children Saturday overnight, Monday overnight, and Thursday mornings. He also frequently attended the children's sporting events during the week. Father argues that relocation of the children to Texas will preclude him from exercising similar visitation rights. "Although a child's move to another state obviously complicates the noncustodial parent's visiting the child, interference with the noncustodial parent's visitation privileges is not an `insuperable obstacle'." Shaw , 951 S.W.2d at 749 (quoting Simpher v. Simpher , 770 S.W.2d 488, 489 (Mo.App.E.D. 1989)). Even where relocation will make visitation more difficult, a trial court may properly permit the relocation of the child when it is in the child's best interest. Thomas v. Thomas , 989 S.W.2d 629, 634-635 (Mo.App.W.D. 1999); Shaw , 951 S.W.2d at 749 . In allowing Mother to relocate to Texas with the children, the trial court determined a new visitation schedule for Father that included one weekend per month and most of the children's summer, Christmas, and spring breaks subject to visitation during those periods with Mother. Transportation costs were split between the parties. Mother also testified that Father could visit the children any time he was in Texas. While the move to Texas would prevent Father from seeing the children during the week and participating in their daily activities, the new visitation schedule declared by the trial court was adequate to provide Father with continuing and meaningful contact with his children. "In our highly mobile society, it is unrealistic to inflexibly 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 interest of the minor children." In re Marriage of Greene , 711 S.W.2d 557, 564 (Mo.App.S.D. 1986). The trial court's judgment that Mother's proposed relocation was made in good faith and that the relocation to Texas was in the best interest of the children was supported by substantial evidence and was not against the weight of the evidence. The point is denied.
Father also claims that the trial court erred in permitting Mother to relocate to Texas with the children because Mother failed to notify him of her proposed relocation as required by section 452.377. The notice provision of the relocation statute provides:
2. Notice of a proposed relocation of the residence of the child, or any party entitled to custody or visitation of the child, shall be given in writing by certified mail, return receipt requested, to any party with custody or visitation rights. Absent exigent circumstances as determined by a court with jurisdiction, written notice shall be provided at least sixty days in advance of the proposed relocation. The notice of the proposed relocation shall include the following information:
(1) The intended new residence, including the specific address and mailing address, if known, and if not known, the city;
(2) The home telephone number of the new residence, if known;
(3) The date of the intended move or proposed relocation;
(4) A brief statement of the specific reasons for the proposed relocation of a child, if applicable; and
(5) A proposal for a revised schedule of custody or visitation with the child, if applicable.
§ 452.377.2, RSMo Cum. Supp. 1998. The purpose of the notice provision of section 452.377 is to give a party entitled to custody or visitation of the child the opportunity to challenge the relocation by filing a motion seeking an order to prevent the relocation. § 452.377.7, RSMo Cum. Supp. 1998.
Generally, one having actual notice is not prejudiced by and may not complain of the failure to receive statutory notice. Crawford v. Crawford , 986 S.W.2d 525, 528 (Mo.App.W.D. 1999); Gateway Frontier Properties, Inc. v. Selner, Glaser, Komen, Berger and Galganski, P.C. , 974 S.W.2d 566, 571 (Mo.App.E.D. 1998); Macon-Atlanta State Bank v. Gall , 666 S.W.2d 934, 940 (Mo.App.W.D. 1984). "Statutes that impose technical requirements for notice should not be strictly enforced where the party seeking enforcement had actual notice and cannot show prejudice as a result of failure to follow the technical requirements." Gateway Frontier , 974 S.W.2d at 571 (citing Gall , 666 S.W.2d at 940).
The evidence in this case revealed that Mother and her husband first learned of her husband's job opportunity in Texas the weekend of September 17, 1998. Although a formal offer was not made to Mother's husband that weekend, Mother informed Father of the possibility of relocating with the children to Texas on Sunday, September 19, 1998. On October 15, 1998, Mother filed her Motion for Temporary Removal of Children from the State of Missouri explaining that her husband was offered and had accepted a promotion with his employer on October 5. Mother then filed her Second Amended Motion to Modify Visitation Schedule on November 6, 1998, seeking permission to relocate the children to Texas as of November 29, 1998. Father responded to Mother's motion on November 20, 1998, and filed his Cross-Motion to Modify seeking primary physical custody of the children. While Father did not receive written notice by certified mail of Mother's proposed relocation of the children as required by section 452.377.2, he did receive actual notice as early as September 19, 1998. He filed his answer to Mother's Second Amended Motion to Modify Visitation challenging the relocation and his own cross motion seeking primary physical custody of the children. Because Father received actual notice of Mother's intent to relocate to Texas with the children and had the opportunity to challenge the relocation, and did, Father did not suffer any prejudice as a result of Mother's failure to follow the technical requirements of the notice statute. Father may not, therefore, complain of the technical noncompliance of the statute. The trial court did not err in allowing Mother to relocate to Texas with the children. The point is denied.
The judgment of the trial court is affirmed.