Cullison v. Thiessen

• Decision Date: 17 July 2001
• Citation: Cullison v. Thiessen, 51 S.W.3d 508 (Mo. App. 2001)
• Parties: (Mo.App. W.D. 2001) Charles Cullison, Appellant v. Tina Thiessen, Respondent. WD58699 0
• Court: Missouri Court of Appeals

51 S.W.3d 508 (Mo.App. W.D. 2001)

Charles Cullison, Appellant v. Tina Thiessen, Respondent.

WD58699

Missouri Court of Appeals Western District

07/17/2001

Appeal From: Circuit Court of Vernon County, Hon. Gerald D. McBeth

Counsel for Appellant: Allen S. Russell, Jr.

Counsel for Respondent: Chris Hoberock

Opinion Summary: Charles Cullison appeals from the judgment of the trial court allowing his ex-wife, Tina Thiessen, to relocate their two minor children with her from the State of Missouri to the State of Ohio where Ms. Thiessen's new husband is employed.Mr. Cullison also appeals the trial court's judgment ordering Mr. Cullison to pay Ms. Thiessen attorney's fees in the amount of $3,500.00 and all transportation expenses for the children's visitation.

The trial court's judgment granting Ms. Thiessen permission to relocate the parties' children to Ohio with her is affirmed.The portion of the trial court's judgment ordering Mr. Cullison to pay Ms. Thiessen's attorney's fees is reversed, and the portion of the judgment requiring Mr. Cullison to pay the entire cost of transporting the children from Ohio to Western Missouri to visit their father is affirmed.

Division Three holds: (1) Where the trial court, in accordance with the legislative mandate of section 452.377.9, determined that the relocation of the children to the State of Ohio was in the children's best interests and that the proposed relocation decision was made by Ms. Thiessen in good faith, and these determinations are supported by substantial evidence in the record, the trial court was correct in granting Ms. Thiessen permission to relocate the parties children to Ohio.

(2) Where Mr. Cullison contests the admission of certain evidence detailing events that occurred prior to the last modification order, but failed to object to the admission of such evidence at the time the evidence was offered at trial, Mr. Cullison failed to preserve the claim of error for review by this court.

(3) Where section 452.377.13 provides that any party who objects in good faith to the relocation of that party's children shall not be ordered to pay the attorney's fees of the party seeking to relocate and the evidence in the record indicates that Mr. Cullison's opposition to the proposed relocation of his minor children was made in good faith and is reasonable under the circumstances presented, the trial court erred in ordering Mr. Cullison to pay Ms. Thiessen's attorney's fees.

(4) Where the trial court allocated all of the expenses associated with the transportation of the children for visitation to Mr. Cullison rather than increasing Mr. Cullison's child support obligation the trial court's allocation was not based on a finding that Mr. Cullison opposed the relocation in bad faith, and is therefore affirmed.

Lowenstein, P.J. and Hanna, S.J., concur.

Robert G. Ulrich, Judge

Charles Cullison appeals from the judgment of the trial court allowing his ex-wife, Tina Thiessen, to relocate their two minor children with her from Missouri to Ohio where Ms. Thiessen's new husband is employed.Mr. Cullison also appeals the trial court's judgment ordering Mr. Cullison to pay Ms. Thiessen attorney's fees in the amount of $3,500.00 and all transportation expenses for the children's visitation.The trial court's judgment granting Ms. Thiessen permission to relocate the parties' children to Ohio with her is affirmed.The portion of the trial court's judgment ordering Mr. Cullison to pay Ms. Thiessen's attorney's fees is reversed, and the portion of the judgment requiring Mr. Cullison to pay the entire cost of transporting the children from Ohio to Western Missouri to visit their father is affirmed.

I.Facts

Mr. Cullison and Ms. Thiessen were divorced on April 11, 1988.The court awarded Ms. Thiessen sole custody of the parties two minor children, Elizabeth Joann Cullison and Jonathan Michael Cullison.Mr. Cullison was granted visitation rights, consisting of every other weekend, alternate major holidays, and two separate two-week stays in the summer.In addition, Mr. Cullison was ordered to pay child support in the amount of $200.00 per month per child for the care and support of the minor children.

In July 1997, Ms. Thiessen filed a motion to modify in the Circuit Court of Vernon County seeking an order increasing Mr. Cullison's child support obligation.During the proceedings on the motion, Mr. Cullison requested a reduction in his visitation with his children.On July 24, 1997, the circuit court entered a judgment modifying the visitation and child support obligation ordered in the parties' original divorce decree.The Judgment of Modification reduced Mr. Cullison's visitation with the children from every other weekend to one weekend per month, as proposed by Mr. Cullison.In addition, Mr. Cullison's holiday and summer visitations were eliminated.The Judgment of Modification additionally increased Mr. Cullison's child support obligation to the total sum of $700.00 per month.

In January 1999, Ms. Thiessen notified Mr. Cullison that she wished to relocate with the parties' children to West Minister, Colorado.Mr. Cullison consented to the proposed relocation.Shortly after arriving in West Minister, Ms. Thiessen again notified Mr. Cullison that she wished to move from West Minister, Colorado to Greeley, Colorado, which relocation would result in a change of schools for the parties' children.Mr. Cullison again did not object to the second relocation.While living in Colorado, Ms. Thiessen drove the parties' children back to Kansas City once a month to allow Mr. Cullison to exercise his visitation with them.

In August 1999, Mr. Cullison filed a motion for a change of custody in the Circuit Court of Jackson County, where he resided.In the motion, Mr. Cullison requested an order transferring physical custody of the minor children to him.In October 1999, Ms. Thiessen moved back to Nevada, Missouri.Upon returning from Colorado, Ms. Thiessen filed a contempt motion and motion to modify with the Vernon County Circuit Court, wherein she requested a court order compelling Mr. Cullison to provide the children with medical insurance.

Mr. Cullison filed an answer to Ms. Thiessen's motions accompanied by a counter-motion to modify requesting an order transferring physical custody of the minor children to Mr. Cullison, an order terminating his child support obligation and requiring Ms. Thiessen to pay child support, an order granting Mr. Cullison the dependency exemptions for the minor children, an order abating Mr. Cullison's child support obligation for the summer of 1999, and an order compelling Ms. Thiessen to satisfy Mr. Cullison's attorney's fees.

While these proceedings were pending, Ms. Thiessen remarried in February 2000.Ms. Thiessen's new husband, Mark Wisecup, relocated to West Union, Ohio to pursue a business endeavor with his family.Ms. Thiessen, accordingly, filed an amended motion to modify on March 20, 2000, requesting a court order permitting her to relocate with the parties' minor children from the State of Missouri to the State of Ohio to be with her new husband.Mr. Cullison filed an answer opposing the proposed relocation on April 21, 2000.

A hearing on the matter was held in the Vernon County Circuit Court on April 26, 2000.At the close of the hearing, the trial court entered judgment modifying the prior decree, which ordered, among other things, that Ms. Thiessen retain physical custody of the parties' children and permitted Ms. Thiessen to relocate the children with her to Ohio.The court further ordered Mr. Cullison to pay Ms. Thiessen's attorney's fees and all expenses incurred in connection with the transportation of the children for visitation purposes.This appeal followed.

II.Points on Appeal

A.Relocation

In his first two points on appeal, Mr. Cullison contends that the trial court erred in permitting Ms. Thiessen to relocate the children from the State of Missouri to the State of Ohio.In his first point, Mr. Cullison alleges that the trial court did not correctly apply the law to determine whether the proposed relocation would be in the best interests of the minor children.Specifically, Mr. Cullison asserts that the trial court failed to consider the four factors detailed in Shaw v. Shaw, 951 S.W.2d 746(Mo. App. W.D.1997), andSadler v. Favro, 23 S.W.3d 253(Mo. App. W.D.2000), in determining whether the relocation was in the children's best interests.

An appellate court must affirm the trial court's judgment in a court tried case unless there is no substantial evidence to support it, it is against the weight of the evidence or it erroneously declares or applies the law.Murphy v. Carron, 536 S.W.2d 30, 32(Mo. banc 1976).The trial court's judgment is presumed correct, and Mr. Cullison bears the burden of proving error.Thomas v. Thomas, 989 S.W.2d 629, 633(Mo. App. W.D.1999).The evidence and all reasonable inferences therefrom are viewed in a light most favorable to the prevailing party and all evidence to the contrary is disregarded.Pokrzywinski v. Pokrzywinski, 8 S.W.3d 222, 223(Mo. App. E.D.1999).

Disputes concerning the relocation of children must be resolved on their particular facts rather than by rigid application of rule.Green v. Green, 26 S.W.3d 325, 328(Mo. App. E.D.2000).The paramount concern in determining whether to allow a parent to relocate children to a different state is the best interests of the children.Puricelli v. Puricelli, 969 S.W.2d 289, 296(Mo. App. E.D.1998).

Mr. Cullison argues that the trial court failed to apply the four factors that this court has previously held are applicable to the determination of the child's best interests.See e.g.Shaw, 951 S.W.2d at 748-49.These four factors include: (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...