Allen v. Gatewood

• Decision Date: 22 January 2013
• Docket Number: No. WD 74799.,WD 74799.
• Citation: 390 S.W.3d 245
• Parties: Sidney Danielle ALLEN By Her Next Friend Cap Duke ALLEN, Individually, Respondent, v. Deena GATEWOOD, Appellant.
• Court: Missouri Court of Appeals

390 S.W.3d 245

Sidney Danielle ALLEN By Her Next Friend Cap Duke ALLEN, Individually, Respondent,

v.Deena GATEWOOD, Appellant.

No. WD 74799.

Missouri Court of Appeals, Western District.

Jan. 22, 2013.

Christy L. Fisher, Plattsburg, MO, for appellant.

Michele C. Puckett–Burkhead, Cameron, MO, for respondent.

Before Division Two: LISA WHITE HARDWICK, Presiding Judge, JAMES M. SMART, JR. and KAREN KING MITCHELL, Judges.

LISA WHITE HARDWICK, Judge.

Deena Gatewood (“Mother”) appeals from the circuit court's judgment sustaining Cap Duke Allen's (“Father”) motion to prevent her from relocating with their daughter (“Child”) and finding Mother in contempt. Mother contends the court erred in granting relief because Father's motion was untimely and there was substantial evidence that relocation was in the best interests of Child. Mother also asserts the court erred in denying her motion for continuance of the trial setting. For reasons explained herein, we affirm.

Factual & Procedural History

On July 17, 2009, the Circuit Court of DeKalb County entered a paternity judgment declaring Father to be the natural father of Child and granting Mother and Father joint legal and joint physical custody of Child. Pursuant to the paternity judgment, Child was to reside with Mother, subject to a custodial schedule for Father. At the time of the judgment, all of the parties lived in Cameron, Missouri. The judgment ordered the parties to follow the statutory notification requirements, Section 452.377,¹ pertaining to relocation. Under the judgment, Mother and Father were also required to consult with each other in making decisions regarding Child's education.

On March 25, 2011, Mother sent Father a letter by certified mail notifying him that she intended to “relocate with [Child] to 13480 NW Burlington Drive, Breckenridge, Missouri 64625 on June 1, 2011.” The notice stated that Mother wished to relocate because her then fiancée David Sanson, now her husband, had recently inherited a “4000 square foot home with 180 acres” in Breckenridge. The letter went on to state: “Currently we rent a home in Cameron and we believe it's unreasonable to continue residing in a rental that is one-half the size of what he has inherited.” Cameron is located approximately 27 miles from Breckenridge.

Upon receipt of Mother's letter on March 26, 2011, Father attempted to visit the property where Mother intended to relocate. The address Mother provided in the relocation notice was an open field with no dwelling. Father contacted Mother “several times” asking for the correct address, and each time Mother responded by instructing Father to refer to the relocation notice.

Eventually, on April 27, 2011, Father was able to locate the actual residence by driving around Breckenridge—with the aid of a plat map—until he spotted Sanson's car. The residence was actually located at 13100 NE Burlington Drive. Additionally, instead of being a “4000 square foot home with 180 acres,” the residence was a modular home located on “considerably less than 180 acres.” Father later discovered that Sanson's mother also would be living in the modular home. Mother did not actually confirm “13100 NE Burlington Drive” as the correct address until June 2011.

On April 27, 2011, the same day Father located the correct address and thirty-two days after he received Mother's relocation notice, Father filed a motion to prevent relocation. In response, Mother filed a motion to dismiss Father's motion to prevent relocation, asserting that Father waived any objection to relocation by failing to file his objection within thirty days of receiving Mother's notice, as required by Section 452.377.7. Father subsequently filed a motion for contempt, arguing that Mother's relocation notice failed to comply with the requirements of Section 452.377 and, therefore, Mother violated the 2009 paternity judgment.

On June 1, 2011, Mother relocated with Child to Breckenridge and, without first consulting Father, enrolled Child in the Breckenridge School District. At that time, Child was five years old and ready to start kindergarten in August. Child had attended preschool and summer school at Park View Elementary in Cameron and would have continued with kindergarten at that school if the relocation had not occurred.

On August 9, 2011, Father filed a notice of his request for trial setting, which was heard on August 15, 2011. The partner of Mother's attorney appeared and represented Mother at the August 15th hearing, during which the circuit court scheduled the trial for August 29, 2011.

On August 18, 2011, Mother filed a motion to continue the trial date because her counsel had another trial scheduled for the same day. Father subsequently filed an objection to the continuance, arguing that it was necessary to designate Child's school district as soon as possible. During a phone conference on August 26, 2011, the circuit court denied Mother's motion for continuance, and the trial was held as scheduled on August 29, 2011.

Following the trial, the circuit court entered a judgment sustaining Father's motion to prevent relocation. The court also found Mother in contempt of court for “intentionally and willfully violat[ing]” the 2009 paternity judgment by “failing to consult with [Father] regarding education decisions”and failing to comply with the statutory notification requirements pertaining to relocation. The judgment stated that Mother could “purge her contempt by returning the child to a residence situated in the Cameron School District by September 20, 2011; and by immediately enrolling the child in the Cameron School District.” Mother appeals.

Standard of Review

Our review of a trial court's judgment on a motion for relocation of a child is for whether the judgment “ ‘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.2010) (quoting Herigon v. Herigon, 121 S.W.3d 562, 564–65 (Mo.App.2003)). We defer to the circuit court's credibility determinations and view the evidence in the light most favorable to the court's decision. Haden v. Riou, 37 S.W.3d 854, 860 (Mo.App.2001).

Analysis

Compliance with Relocation Statute

In Point I, Mother contends the circuit court erred in denying the relocation to Breckenridge because Father did not file his opposition motion within thirty days of receiving Mother's relocation notice as required by Section 452.377.7. Based on Father's untimeliness, Mother asserts she had an absolute right to move Child.

“Section 452.377 governs the ‘relocation of children’ in this state.” Herigon, 121 S.W.3d at 565. “Relocation” is defined as “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.” § 452.377.1. Under Section 452.377.2, a parent who intends to relocate must give written notice of the proposed relocation to the other parent. Section 452.377.2 requires the relocation notice to be:

[G]iven in writing by certified mail, return receipt requested ... at least sixty days in advance of the proposed relocation.... [And] 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.

Once the notification is received, the non-relocating parent has thirty days to file a motion to prevent relocation. § 452.377.7. “The non-relocating parent waives any objection to the relocation by failing to object in a timely manner, giving the relocating parent an absolute right to relocate with the child, without the permission of the non-relocating parent or the court.” Dent v. Dent, 248 S.W.3d 646, 648 (Mo.App.2008). In such a case, the child may be relocated sixty days after the non-relocating parent received the relocation notice. Id. at 647–48.

In response to Mother's claim on appeal, Father argues that Mother is not entitled to relief because she failed to provide adequate notice of the relocation pursuant Section 452.377.2. Specifically, Mother's notice did not provide the correct address and an accurate description of the residence where Child would be living. Mother cannot claim an absolute right to relocateChild under Section 452.377.7 without first demonstrating her strict compliance with the notice requirements of Section 452.377.2. Abraham v. Abraham, 352 S.W.3d 617, 621 (Mo.App.2011).

In Abraham, this Court held that “the date for any legal obligation to begin for the nonrelocating party [is] the date of the receipt of the certified letter which strictly complies with the provisions of the statute.” Id. at 620 (emphasis added).² In that case, mother sent father a relocation notice that did not provide a specific address, but instead listed “Orlando, Florida” as the intended new residence. Id. at 618. Father filed a motion to prevent relocation thirty-eight days after receiving the notice. Id. Mother then filed a motion to dismiss, arguing that she had an absolute right to relocate because father filed his motion eight days late. Id. The trial court denied mother's motion to dismiss on the basis that her notice to father was inadequate. Id.

On appeal, mother argued “that her statement that she would move to ‘Orlando, Florida’ was sufficient.” Id. at 621. The court disagreed, affirming the circuit court's holding that mother's notice was inadequate because it did not strictly comply with Section 452.377. The court explained:

Mother ignores the language “if known,” as set forth in section 452.377.2(1). Mother indicated in her letter that she...