Carter v. Schilb, WD

• Decision Date: 07 June 1994
• Docket Number: No. WD,WD
• Citation: Carter v. Schilb, 877 S.W.2d 665 (Mo. App. 1994)
• Parties: Sharon Kay CARTER, Appellant, v. Dennis Warren SCHILB, Respondent. 48339.
• Court: Missouri Court of Appeals

Page 665

877 S.W.2d 665

Sharon Kay CARTER, Appellant, v. Dennis Warren SCHILB, Respondent.

No. WD 48339.

Missouri Court of Appeals Western District.

June 7, 1994.

Dale C. Doerhoff, Cook, Vetter, Doerhoff & Landwehr, Jefferson City, for appellant.

Lori J. Levine, Douglas W. Hennon, Carson & Coil, P.C., Jefferson City, for respondent.

Before LOWENSTEIN, P.J., and BERREY and SPINDEN, JJ.

LOWENSTEIN, Presiding Judge.

This is an appeal from a bench trial which denied Sharon Carter's (Sharon) motion, as custodial parent, to permit the removal of her daughter (M) from Missouri. Sharon and her new husband proposed a move, with M, from Jefferson City, Missouri to Arizona. Dennis Schilb (Dennis), M's father, objected. The court denied the motion. Sharon's two points on appeal are the court erred in denying her motion to permit removal because: 1) the denial was not in M's best interest; and 2) it violated Sharon's constitutional right to freedom of personal choice in matters of marriage and family life as protected by the Fourteenth Amendment to the Constitution of the United States. This court affirms.

Sharon and Dennis were married in June, 1976. They had two daughters S, born September 20, 1978, and M, born May 2, 1986. Sharon and Dennis separated in September, 1990; the marriage was dissolved May, 1991. At the time of the divorce, S was twelve and M was four years old. S was allowed to choose which parent she lived with, she chose to live with her father in Prairie Home. M lived with her mother in Jefferson City. The dissolution decree provided for joint legal custody of the girls, with primary physical custody of S with Dennis, and M with Sharon. Sharon has remarried, and is now married to Dr. James Carter. Dennis is engaged to Lisa, whom he has dated for several years.

There have been brief periods of estrangement between Sharon and her older daughter following the dissolution. Initially, S was going to join Sharon, M, and Jim in the move to Arizona but, upon further reflection, changed her mind. Additional problems arose due to the proposed move. S feels her mother is leaving her and trying to take her sister away from her.

M is a bright, well adjusted child who gets along well with her peers. She has a close relationship with both parents, as well as her stepfather.

Sharon and Jim began talking about moving to Arizona in the late summer of 1992. The move to Arizona was triggered by Dr. Carter's disability, and the need for his parents, who were ill, to have somebody close take care of them. Dr. Carter had been in private practice as a cardiovascular surgeon. In October, 1992 he had to cease his practice as a cardiovascular surgeon due to serious back problems. The Carters live off Dr. Carter's disability policy, which pays in excess of $10,000 a month. Dr. Carter spoke of trying to find employment, possibly in plastic surgery. He has not tried to find other employment in Missouri. Dr. Carter said if they were unable to leave Missouri he might look for employment in Joplin, Kansas City or St. Louis.

In October, 1992 Sharon and Jim Carter sold their Jefferson City home and bought a new one in Gilbert, Arizona. They immediately moved their belongings to their new home. The home has a swimming pool, is close to an elementary school and church, and is in a neighborhood with children M's age. The Carter's said even if they were unable to move to Arizona, they would keep the house as a second home, or to use as an investment since, if sold, it would return a profit.

Dennis learned of the Carters' plans to move to Arizona from S, and confronted Sharon. He told Sharon he was opposed to M's removal from Missouri. Dennis was not told of their address or where M would be attending school. The Carters rented a condominium in Columbia while waiting for the court's ruling.

Sharon testified her niece and her sister, M's godmother, were in Arizona. There was evidence of family in mid-Missouri as well. M's paternal grandparents are in Prairie Home, and she sees them every weekend she visits her father. Her maternal grandmother, two uncles and three aunts also live nearby.

An extensive visitation schedule was proposed regarding visitation of both girls with their parents. The guardian ad litem, in his review of the situation, and with regard to S, noted the proposed visitation schedule would not be successful if S chose to work during the summer, while maintaining her normal school schedule and athletic activities. The guardian ad litem did not make a recommendation regarding the proposed move.

The trial court, using the best interest of the child standard, denied the motion to permit removal of M from Missouri. No findings of fact were requested. To the parents credit in this case, the record shows they were both interested in doing what they believed best for the children.

Review by this court is controlled by Rule 73.01 and Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). The judgment may be reversed only if: 1) the judgment is not supported by substantial evidence; 2) is against the weight of the evidence; or, 3) results from an erroneous declaration or application of law. Id. at 32. The judgment is to be set aside only if this court has a firm belief the judgment is wrong. Id. at 32. Where there is conflicting evidence, this court defers to the trial court. Id. This court will affirm the trial court's judgment even if there is evidence which would support a different conclusion. Wild v. Holmes, 869 S.W.2d 917 (Mo.App.1994).

Section 452.377, RSMo.1986 states in pertinent part:

"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...."

In determining whether to grant the custodial parent's motion, the paramount concern is the best interests of the child. Tucker v. Tucker, 778 S.W.2d 309, 312 (Mo.App.1989). O'Leary v. Stevenson, 782 S.W.2d 109, 111 (Mo.App.1989). There are four factors which have been recognized in looking at the propriety of allowing the custodial parent to remove a child from the state. Michel v. Michel, 834 S.W.2d 773 (Mo.App.1992).

First, whether the prospective advantages of the move will improve the general quality of life for the parent and the child. Wild, 869 S.W.2d at 919. This point favors the father in this case. Economically speaking, there is no evidence Sharon and Jim will be better off in Arizona. Jim will collect on his disability policy wherever they live. There is no evidence Sharon plans to reenter the work force, and Jim may, or may not begin working again. Additionally, Jim has not tried to find a job in Missouri; Jim said if the court...