Abraham v. Abraham

• Decision Date: 26 October 2011
• Docket Number: No. SD 31099.,SD 31099.
• Parties: In re the Marriage of: Susan Z. ABRAHAM, Petitioner–Appellant, v. John L. ABRAHAM, Respondent–Respondent.
• Court: Missouri Court of Appeals

352 S.W.3d 617

In re the Marriage of: Susan Z. ABRAHAM, Petitioner–Appellant,

v.John L. ABRAHAM, Respondent–Respondent.

No. SD 31099.

Missouri Court of Appeals, Southern District, En Banc.

Oct. 26, 2011.

J. Matthew Miller, Springfield, for Appellant.

James R. Sharp, Springfield, for Respondent.

NANCY STEFFEN RAHMEYER, Judge.

Susan Z. Abraham (“Mother”) appeals from the trial court's judgment sustaining John L. Abraham's (“Father's”) motion to prohibit her attempted move with their minor child. Mother contends she had an absolute right to move with the minor child because Father's motion was not filed within thirty days of the receipt of the notice of relocation and that her notice of relocation complied with section 452.377 ¹ and, therefore, the trial court was without jurisdiction to hear Father's objection to the relocation.

Father and Mother were granted a dissolution in April 2006; the parties were granted joint legal and physical custody of the minor child born of the marriage. At the time of the dissolution, all of the parties resided in Springfield, Missouri. Mother relocated to Columbia, Missouri, in August 2007, for employment in Fulton, Missouri. The parties apparently agreed to a change in the parenting schedule at that time without court involvement.

Mother sent a letter by certified mail on September 13, 2010, in which she proposed to relocate the residential address of the child to Orlando, Florida. Father received the letter on September 14, 2010, and filed a motion to prohibit the relocation on October 22, 2010; on November 4, 2010, Father filed a motion to modify ² the decree. Mother filed a motion to dismiss Father's motion to prohibit relocation, in which she argued that his motion was filed eight days after the thirty-day period set forth in section 452.377.7 expired and, therefore, she had an absolute right to move with the minor child to Florida. The trial court denied Mother's motion to dismiss on the basis that the notice was inadequate and thus did not address the legal significance of Father's late filing of his motion to prohibit the relocation of the child. ³ We agree and affirm the judgment.

This Court's review of a trial court's judgment denying or granting a motion to relocate a minor child is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); therefore, we will affirm the trial court's ruling if it is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law. Cortez v. Cortez, 317 S.W.3d 630, 633–34 (Mo.App. S.D.2010).

Section 452.377 states, in pertinent part:

1. For purposes of this section and section 452.375, “relocate” or “relocation” means a change in the principal residence of a child for a period of ninety days or more, but does not include a temporary absence from the principal residence.

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.

Mother relies upon Baxley v. Jarred, 91 S.W.3d 192, 199 (Mo.App. W.D.2002), for the proposition that there are only two modes by which a parent is permitted to relocate with a child. In the first instance, the “non-court-ordered” track, if the non-relocating parent does not object by filing a motion with the court within a strictly enforced thirty days, the relocating parent has an absolute right to relocate. The second mode contemplates a properly filed objection within thirty days and a subsequent court order allowing the relocation based upon a determination that the proposed relocation is being made in good faith and is in the best interest of the child. Mother quotes Baxley:

While clearly recognizing the need of the nonrelocating parent for notice and an opportunity to be heard before relocation is permitted, the statute, by limiting the time within which a nonrelocating parent can object to a proposed relocation, also recognizes that the relocating parent should not be unduly delayed from relocating where the nonrelocating parent does not affirmatively object in a timely fashion.

Id.

Mother claims that this case comes within the “non-court-ordered” track because she contends her notice was in compliance, or at least substantial compliance, with section 452.377 and that, as a result, Mother had an “absolute right to relocate.” Mother claims that “strict compliance” with the elements of a relocation letter is not required; she further argues that any ambiguities complained about in the letter did not prejudice Father. Father challenged the contents of Mother's relocation letter and argued that, if strict compliance with section 452.377 is required for the party opposing relocation, then it is also required for the party proposing relocation.⁴ We agree.

In so finding, this opinion is in conflict with Baxley and its progeny. We believe the legislature intended that the date for any legal obligation to begin for the nonrelocating party was the date of the receipt of the certified letter which strictly complies with the provisions of the statute; it was intended as a bright line for parents, practitioners and the court. To hold otherwise causes confusion in the courts and the practicing bar as to whether a motion to prevent relocation needs to be filed.⁵ Parents should not have to file motions to prevent relocation based on rumors of potential moves. As noted in Melton v. Collins, 134 S.W.3d 749, 756–57 (Mo.App. S.D.2004) (Rahmeyer, J., concurring):

The legislature set forth a specific procedure for a parent who seeks to relocate with a minor child. In pertinent part, Section 452.377.2 states: “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.” (emphasis added). The requirement that the notice be by certified mail is restated in Section 452.377.11:

After August 28, 1998, every court order establishing or modifying custody or visitation shall include the following language: ‘Absent exigent circumstances as determined by a court with jurisdiction, you, as a party to this action, are ordered to notify, in writing by certified mail, return receipt requested, and at least sixty days prior to the proposed relocation, each party to this action of any proposed relocation of the principal residence of the child, including the following information.’ (emphasis added).

The language continues, “your failure to notify a party of a relocation of a child may be considered in a proceeding to modify custody or visitation with the child.” § 452.377.11. Without citing to any authority, and with serious consequences to the parent who did not receive the authorized notice, the Baxley court waived the requirement that the notice be by certified mail. Baxley, 91 S.W.3d at 205. To compound the matter, after refusing to require the relocating parent to strictly comply with the statute, the Baxley court then [inexplicably] required strict compliance by the non-relocating parent in the filing of an objection within thirty days of receiving notice. Id. at 206. Because the father did not file an objection with[in] thirty days, the court reasoned that mother, as a matter of law, could move the child out of state and not even the court could challenge that decision. Id. That conclusion is simply not warranted by the plain language of the statute, nor by the intent of the statute,¹ and leads us to the present case wherein a parent claims that any sort of “actual notice” waives the statutorily-mandated notice and allows relocation as a matter of law, a relocation that is essentially unreviewable by the court. See In re Wright, 129 S.W.3d 882 (Mo.App.W.D.2004); see also Heslop v. Sanderson, 123 S.W.3d 214 (Mo.App. W.D.2003).

Id.

If, indeed, section 452.377 grants “an absolute right to relocate the residence of the child, without the express consent of the [other parent] or court order,” Baxley, 91 S.W.3d at 205, the notice requirement of section 452.377 must be strictly complied with.⁶ When section 452.377 is read in harmony with the public policy of the State to provide frequent, continuing and meaningful contact with both parents, pursuant to section 452.375.4, RSMo Cum.Supp.2011,⁷ we find the trial court did not err in requiring strict compliance by Mother in her notice.

We next address Mother's claim that the trial court's finding that her notice was inadequate is erroneous. She claims that her notice was in actual or substantial compliance with section 452.377. We have reviewed the trial court's determination that the notice was not in strict compliance with section 452.377 and find no error. Mother admits that she did not give Father the actual, specific address and mailing address of her intended new residence but rather claims that her statement that she would move to “Orlando, Florida” was sufficient. To reach that conclusion, Mother ignores the language “if known,” as set forth in section 452.377.2(1). Mother indicated in her letter that she did not have a specific mailing address in Orlando at the...