Brethorst v. Brethorst

• Decision Date: 29 May 2001
• Citation: 50 S.W.3d 864
• Parties: (Mo.App. S.D. 2001) Barbara Jeanne Brethorst, Petitioner/Appellant v. Jon Matthew Brethorst, Respondent/Respondent. ED77314 0
• Court: Missouri Court of Appeals

50 S.W.3d 864 (Mo.App. S.D. 2001)

Barbara Jeanne Brethorst, Petitioner/Appellant v. Jon Matthew Brethorst, Respondent/Respondent.

ED77314

Missouri Court of Appeals Eastern District

05/29/2001

Appeal From: Circuit Court of St. Louis County, Hon. Martin Schiff, Jr., Judge

Counsel for Appellant: C. Michael Bakewell

Counsel for Respondent: Alan W. Cohen

Opinion Summary: Mother appeals from that part of the trial court's judgment denying her motion to modify the decree of dissolution of her marriage to father.

Division Two holds: The trial court did not err (1) in failing to apply the four-factor test set out in Riley v. Riley, 904 S.W.2d. 272 (Mo. App. E.D. 1995), and to make specific findings with respect to that test; and (2) in finding that relocation was not in the best interests of the children.

Ahrens, P.J. and J. Dowd, J., concur.

William H. Crandall, Jr., Judge

Mother, Barbara Jeanne Brethorst, appeals from that part of the trial court's judgment denying her motion to modify the decree of dissolution of her marriage to father, Jon Matthew Brethorst.¹ We affirm.

In February 1996, the trial court entered a decree of dissolution of the parties' marriage. The court awarded mother primary physical custody of the parties' two children, a daughter born November 1990 and a son born March 1994. The court awarded both parties joint legal custody of the children and ordered father to pay child support.

In December 1998, mother filed a motion to modify the decree to permit her to remove the children from Missouri because she intended to move to Raleigh, North Carolina. Father filed a cross-motion to modify, seeking primary physical custody of the children and an order for mother to pay child support. At the hearing on the motions, mother testified that in March 1999, she moved to Raleigh, North Carolina, because she accepted a promotion with her employer, IBM. She received a raise in her base salary of about 19 percent plus a bonus of 10 to 15 percent. She stated that no positions were available in St. Louis, because IBM was downsizing its office there. She bought a four-bedroom home in North Carolina. Her gentleman friend also moved to North Carolina, but maintained a separate residence. He was self-employed and worked out of his home, managing his money. He and mother did not intend to marry in the near future.

Father testified that for fifteen years, he had been a police officer in a St. Louis County municipality. He lived in a one-bedroom apartment in the basement of a synagogue. Because of father's varied work schedule, his sister helped him care for the children. Father was active in coaching the children's soccer and baseball teams. Both parties testified that prior to mother's move to North Carolina, the visitation schedule worked well and they cooperated in adjusting visitation to accommodate father's work schedule.

The trial court denied father's and mother's motions to modify. The court did not make specific findings of fact and conclusions of law, but did discuss in its judgment its reasons for not permitting the children to move.²

Our review of this case is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). On appeal, we do not retry the case, but accept as true the evidence and reasonable inferences therefrom in the light most favorable to the prevailing party and disregard contradictory evidence. Pokrzywinski v. Pokrzywinski, 8 S.W.3d 222, 223 (Mo. App. E.D. 1999). We will affirm the trial court's judgment even if there is evidence that would support a different result. Carter v. Schilb, 877 S.W.2d 665, 667 (Mo. App. W.D. 1994).

In her first point, mother claims that the trial court erred in failing to apply the four-pronged test enunciated in Riley v. Riley, 904 S.W.2d 272 (Mo. App. E.D. 1995), to determine the propriety of mother's request to relocate the children. In her second point, mother asserts the trial court erred in failing to make findings specifically related to the fourth factor of the Riley test.

Disputes concerning the relocation of children must be resolved on their particular facts rather than by rigid application of rules. Green v. Green, 26 S.W.3d 325, 328 (Mo. App. E.D. 2000). When determining whether to allow a parent to remove children from the state, the paramount concern is the best interests of the children. Puricelli v. Puricelli, 969 S.W.2d 289, 296 (Mo. App. E.D. 1998). This court previously applied four factors to decide the propriety of the relocation of children by the custodial parent. See, e.g., Pokrzywinski, 8 S.W.3d at 225. These four factors were: (1) the prospective advantage of the move in improving the general quality of life for the custodial parent and the children; (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; and (4) whether there is a realistic opportunity for visitation that can provide an adequate basis for preserving and fostering the non-custodial parent's relationship with the children if relocation is permitted. Riley, 904 S.W.2d at 277.

Riley reiterated and applied the four-pronged test that was first enunciated in Michel v. Michel, 834 S.W.2d 773, 777 (Mo. App. S.D. 1992). In Stowe v. Spence, No. 82940, slip op. (Mo. banc April 10, 2001), the Missouri Supreme Court expressly rejected the four Michel factors as a test for determining whether relocation was in the best interests of the child. The court stated in part:

Prior to the 1998 amendment to section 452.377, the courts approved a relocation if it was in the best interests of the child. The child's best interests were measured by a four-part test set out in [Michel]. In lieu of this test, section 452.377 now requires the court to determine that the relocation: (1) is in the best interests of the child, (2) is made in good faith, and (3) if ordered, complies with the requirements of subsection 10. Michel's four-part test is inconsistent with these statutory requirements and shall not be used in determining the child's best interests. . . .

In effect, section 452.377, RSMo (2000) has broadened the inquiry in a relocation case to any substantial evidence bearing on the good faith of the custodial parent and/or the best interests of the child. Section 452.377.9. Now, the Michel four factors are simply evidence, rather than a test; the statute provides the test. Based on Stowe, the four-factor Riley test is no longer appropriate and the court did not err in failing to apply that test to the instant action. Mother's first and second points are denied.

In her third point, mother argues that the trial court's refusal to permit relocation was against the weight of the evidence because the evidence established not only that there was a change in circumstances but also that relocation was in the best interests...