Baxley v. Jarred
| Decision Date | 17 December 2002 |
| Docket Number | No. WD 59761.,WD 59761. |
| Parties | Patricia A. (Mansell) BAXLEY, Appellant, v. Russell L. JARRED, Respondent. |
| Court | Missouri Court of Appeals |
R. Gregory Gore, Independence, MO, for Appellant.
Caroline Carnes Gnefkow, Independence, MO, for Respondent.
Before HOWARD, P.J., and EDWIN H. SMITH and NEWTON, JJ.
Patricia A. (Mansell) Baxley appeals the judgment of the Circuit Court of Jackson County: (1) denying her permission to relocate to South Carolina with the parties' minor child, Russell L. Jarred, Jr. (Junior); Wand (2) modifying the court's judgment declaring the respondent, Russell L. Jarred, to be the natural father of Junior, by changing primary physical custody of Junior from the appellant to the respondent.
The appellant raises two points on appeal. In Point I, she claims that the trial court erred in preventing her from relocating to South Carolina with Junior because, pursuant to § 452.377,1 governing such relocations, the appellant had an absolute legal right to relocate without the express consent of the respondent or a court order. In Point II, she claims that the trial court erred in modifying its prior child custody decree by changing primary physical custody of Junior from the appellant to the respondent because it was not supported by substantial evidence, was against the weight of the evidence, and misapplied the law.
We reverse and remand.
Junior was born on November 14, 1991. His parents, the appellant and the respondent, were never married. Pursuant to a paternity action filed in the Circuit Court of Jackson County, a judgment was entered on March 4, 1999, declaring the respondent to be the natural father of Junior. In addition, the judgment awarded the parties joint legal custody of Junior with sole physical custody and child support to the appellant, and specific visitation to the respondent.
On February 29, 2000, the respondent received a written notice by regular mail from the appellant advising him that she was relocating with Junior to South Carolina. In response, the respondent filed a motion in the trial court on May 2, 2000, requesting an order of the court preventing the proposed relocation and, in the alternative, seeking a modification of the existing visitation schedule should the court permit the relocation. Sometime after May 2, 2000, the appellant moved to South Carolina with Junior.
On June 19, 2000, the parties appeared in court on the respondent's motions. At that time, the case was continued with the parties stipulating to a temporary visitation order being entered whereby the respondent was to have substantial visitation with Junior during the summer of 2000, which included visitation through August.
On November 6, 2000, the respondent filed, without leave of court, a motion denominated "Respondent's First Amended Motion to Modify as to Custody, and Objection to Child's Relocation," seeking to prevent the appellant from relocating with Junior and changing his primary physical custody to the respondent. Leave to file the motion was granted on December 12 2000. A copy of the motion and notice of the hearing date, January 16, 2001, were mailed to the appellant.
On January 16, 2001, the respondent's amended motion was taken up and heard by Family Law Commissioner, Sherrill L. Rosen. Due to claimed confusion between the appellant and her counsel, neither she nor her counsel appeared for the hearing. Her counsel attempted to obtain a continuance the morning of the hearing, which was denied. The respondent was the only witness to testify at the hearing.
On January 26, 2001, Commissioner Rosen entered her findings and recommendations denying permission to the appellant to relocate with Junior to South Carolina and, inter alia, modifying the prior custody decree by awarding the respondent primary physical custody of Junior. On that same date, the Commissioner's findings and recommendations were adopted by the Honorable Marco A. Roldan as a judgment of the circuit court. On February 9, 2001, the appellant filed a motion for rehearing, which was denied on February 28, 2001.
This appeal follows.
Our review of a court-tried case involving matters of custody is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). In re Marriage of Eikermann, 48 S.W.3d 605, 608 (Mo.App.2001). We will affirm the judgment so long as it is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law. Id.
In Point I, the appellant claims that the trial court erred in preventing her from relocating with Junior to South Carolina, because, pursuant to § 452.377, governing such relocations, the appellant had an absolute legal right to relocate without the express consent of the respondent or court order. Specifically, she claims that she had an absolute legal right to relocate in that it was undisputed from the record that in accordance with the requirements of the statute, she did not relocate until sixty days had elapsed after she had notified the respondent of the proposed relocation and he had failed, within thirty days after receipt of the notice, to file a motion with the court seeking an order to prevent the relocation.
Given the appellant's claim in this point, we necessarily are called upon to interpret § 452.377. "In interpreting statutes, we are to ascertain the intent of the legislature." Pavlica v. Dir. of Revenue, 71 S.W.3d 186, 189 (Mo.App.2002) (citation omitted). In ascertaining the legislative intent, we are to give the language used its plain and ordinary meaning. Id. "Where the legislative intent is made evident by giving the language employed in the statute its plain and ordinary meaning, we are without authority to read into the statute an intent, which is contrary thereto." Id. (citation omitted). If the legislative intent cannot be ascertained from the language of the statute, by giving it its plain and ordinary meaning, the statute is considered ambiguous and only then can the rules of statutory construction be applied. Id.
Section 452.377, which was amended in 1998, reads, 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.
. . .
6. If the parties agree to a revised schedule of custody and visitation for the child, which includes a parenting plan, they may submit the terms of such agreement to the court with a written affidavit signed by all parties with custody or visitation assenting to the terms of the agreement, and the court may order the revised parenting plan and applicable visitation schedule without a hearing.
7. The residence of the child may be relocated sixty days after providing notice, as required by this section, unless a parent files a motion seeking an order to prevent the relocation within thirty days after receipt of such notice. Such motion shall be accompanied by an affidavit setting forth the specific factual basis supporting a prohibition of the relocation. The person seeking relocation shall file a response to the motion within fourteen days, unless extended by the court for good cause, and include a counter-affidavit setting forth the facts in support of the relocation as well as a proposed revised parenting plan for the child.
. . .
9. The party seeking to relocate shall have the burden of proving that the proposed relocation is made in good faith and is in the best interest of the child.
10. 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; and
(2) The court shall specify how the transportation costs will be allocated between the parties and adjust the child support, as appropriate, considering the costs of transportation.
Prior to the 1998 amendment, § 452.377, RSMo 1997, read:
A person entitled to the custody of a child shall not change the residence of the child to another state or remove the child from this state for a period of time exceeding ninety days except upon order of the court or with the written consent of the parties with custody or visitation rights. Where the noncustodial person has been given visitation rights by the custody decree, such court permission may be granted only after notice to the person having visitation rights and after opportunity for hearing. Violation of a court order under this section may be deemed a change of circumstance under section 452.410, allowing the court to modify the prior custody decree.
The prior version of the statute provided for two instances in which the primary physical...
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