Abernathy, Jr. v. Meier

• Decision Date: 29 May 2001
• Citation: Abernathy, Jr. v. Meier, 45 S.W.3d 917 (Mo. App. 2001)
• Parties: (Mo.App. S.D. 2001) Gerald Abernathy, Jr. Appellant v. Kristine Meier, Respondent ED77586 0
• Court: Missouri Court of Appeals

45 S.W.3d 917 (Mo.App. S.D. 2001)

Gerald Abernathy, Jr. Appellant v. Kristine Meier, Respondent

ED77586

Missouri Court of Appeals Eastern District

05/29/2001

Appeal From: Circuit Court of St. Louis County, Hon. Joseph Goeke, III

Counsel for Appellant: Michael B. Stern

Counsel for Respondent: Philip E. Adams

Opinion Summary: Gerald Abernathy, Jr., (father) appeals the trial court's judgment and order of modification permitting Kristine Meier (mother) to relocate to Portsmouth, New Hampshire with their son, Sean Meier. Father alleges there was no substantial evidence to support the trial court's findings that relocation was in Sean's best interest and that the modified visitation schedule would "assure that the child has frequent, continuing and meaningful contact" with father.

Division Two Holds: The trial court's application of the four-part test from Michel v. Michel, 834 S.W.2d 773, 777 (Mo.App. S.D. 1992), subsequently struck down by the Missouri Supreme Court, was error but not reversible because the judgment: (a) specifically applied the "best interests" standards of § 452.375.2; (b) found substantial evidence to support a finding that the relocation was in the best interests of the child and that the modified visitation schedule assures that the child has frequent, continuing and meaningful contact with father; and (c) unlike the trial court in Stowe v. Spence, No. SC82940 which invalidated the Michel test, the court here specifically allocated the costs of transportation associated with father exercising his visitation rights.

Ahrens, P.J., and Crandall, Jr., JJ., concur.

James R. Dowd, Judge

Gerald Abernathy, Jr., (father) appeals the trial court's judgment which adopted the findings and conclusions of Family Court Commissioner, Ellen Levy Siwak, permitting Kristine Meier (mother) to relocate to Portsmouth, New Hampshire with their son, Sean Meier. We affirm.

We view the facts in the light most favorable to the trial court's judgment. Pokrzywinski v. Pokrzywinski, 8 S.W.3d 222, 223 (Mo.App. E.D. 1999). Kristine Meier gave birth to Sean Meier on February 1, 1994. Eight months later, on November 18, 1994, Ms. Meier and Appellant, Mr. Abernathy, entered into a consent order establishing Mr. Abernathy's paternity. Mother was awarded primary physical and legal custody of Sean and father was granted temporary custody. Father and mother never married, nor did father ever live with mother and Sean.

The consent order granted father custody of Sean every other weekend, for six weeks in the summer and for four hours every Tuesday and Thursday morning. In August of 1996 this custody arrangement was modified so that father obtained custody for three days every twenty- one day cycle and for two weeks each year. At the time of trial, father maintained custody of Sean every Wednesday night, every other weekend, alternating holidays and every other week during the summer.

During the spring and summer of 1998 Sean began exhibiting extreme changes of behavior when father would pick him up for his periods of temporary custody. Sean would cling to his mother, hide behind doors, and even run to a neighbor's house to avoid visits with father. Mother became concerned about this behavior and notified the guardian ad litem, Nathan Cohen. Cohen recommended that Sean see a psychologist and mother followed that recommendation by scheduling consultation with Dr. Lynn Sharp Taylor. Despite being invited, father refused to attend these sessions, even though mother offered to pay for them in their entirety.

In late August 1998, Sean again exhibited this behavior when father attempted to pick him up from tae kwon do class. Sean cried and grabbed onto others to avoid being taken by father. Once father managed to place Sean in his car, he struck Sean once on the face. Mother became even more concerned when she learned of this incident and she contacted the guardian ad litem to ask what measures could be taken.

On September 1, 1998, the guardian ad litem filed a Petition for Order of Child Protection in the interest of Sean and against father. On September 22, 1998, the court found that the allegations were not proven, but treated the Petition as a Motion for Relief from Judgment under Rule 74.06(b) and set the matter for presentation of further evidence. On December 9, 1998, the court entered an Interim Consent Order, which continued the matter, limited the father's visitation so that he no longer had overnight visits with Sean, and ordered father and mother to participate in counseling with Dr. Lawrence Kogan. Counseling improved relations between Sean and father. Father apologized to Sean for the incident, and he promised that it would never happen again. On May 10, 1999, the court entered another Interim Consent Judgment of Temporary Custody, restoring father's overnight visitation rights and requiring the parties to continue counseling.

Mother has been Sean's primary custodian since birth, and according to all accounts, she has been an attentive and responsible parent. The record is replete with strong evidence of mother's parenting skills as well as her efforts to create meaningful contact between Sean and his father.

Father is an employee of the Arnold Police Department working as a "School Resource" and "D.A.R.E." officer. In this capacity he teaches a 17 week anti-violence program at Fox High School. Father now lives with his wife Jennifer, her child from a previous relationship, age six, and a child, age two born of the marriage between Father and Jennifer. Father also has another daughter, age five, born of a relationship between father and a third woman whose name does not appear of record. Father became aware of that child's existence within the last year; she does not live in his current household but he sees her every other weekend.

On August 16, 1999, mother notified father in writing that she was accepting a position with Hasbro Interactive, a toy company in Beverly, Massachusetts, and that she intended to relocate there with Sean and her husband, Bernard Jankowski. Father initiated legal action to prevent Sean's relocation, objecting to the change in Sean's principal residence and requesting a transfer of custody if mother relocated.

At the time of trial mother was 28 years old. She had worked for Trendmasters in St. Louis for five years and was earning $50,200 annually, with bonuses ranging from three to four percent of her base salary. The evidence favorable to the judgment established that mother had no further opportunities for advancement at Trendmasters until her boss retired or left the company, and that neither of these would happen in the near future. Trendmasters offered no pension plan or pre-tax childcare. Mother's annual salary at Hasbro would be $55,000, with bonuses estimated to be at least 15% of her base salary. Hasbro offered a pension plan, health insurance that would save mother $3,000 annually, and a pre-tax childcare program. Also, Hasbro offered mother the opportunity for career growth.

After a trial, the court entered a judgment and order of modification permitting mother to move to Portsmouth, New Hampshire. In doing so, the court applied the four-factor test announced in Michel v. Michel, 834 S.W.2d 773, 777 (Mo.App. S.D. 1992) to determine whether the relocation was in the best interests of Sean. Those factors are: (1) the prospective advantage of the move in improving the general quality of life for the custodial parent and child; (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; (4) whether there is a realistic opportunity for visitation which can provide an adequate basis for preserving and fostering the non-custodial parent's relationship with the child if relocation is permitted. Id.

With regard to the first factor, the trial court found that mother's employment at Hasbro provides her with career opportunities that do not currently exist in the St. Louis area and benefits that were unavailable at her former employment. The court also found that there was credible evidence that the curricula of the schools in the Portsmouth area were comparable to or better than the school Sean was then attending in St. Louis. On this basis, and the fact that father presented no evidence regarding the general quality of life in the Portsmouth area, the court concluded that the first factor favored mother.

With regard to the second and third factors, the court found that there was no evidence to suggest bad faith on the part of either mother in seeking to relocate or father in opposing it. The court also found that mother has cooperated with father in the past and shown her willingness to work with father to improve his relationship with Sean.

Treating the fourth factor, the court found that the relocation to Portsmouth, New Hampshire would provide a realistic opportunity for visitation and an adequate basis for preserving and fostering father's relationship with Sean, given the revised parenting plan approved by the court. The revised parenting plan provides that mother remains the sole legal custodian of Sean, but grants father extensive visitation rights. According to that plan, father is afforded visitation one weekend each month between September and May, inclusive, and may select that weekend to include a long weekend. Father is also granted custody of Sean for eight weeks during the summer, one week during Spring Break and Christmas vacation. The court ordered mother to "pay the costs of transportation for Father to exercise" his visitation rights over the summer, Spring and Christmas breaks. Mother is also ordered to pay the transportation costs of every other monthly weekend visitation actually exercised by father between September and May.

Father appeals, arguing...