Day ex rel. Finnern v. Day

• Decision Date: 24 June 2008
• Docket Number: No. ED 89972.,ED 89972.
• Citation: 256 S.W.3d 600
• Parties: Taylor Elizabeth DAY, A Minor, by Erin E. FINNERN, Next Friend, and Erin E. Finnern, Individually, Petitioners/Respondents, v. Jacob Franklin DAY, Respondent/Appellant.
• Court: Missouri Court of Appeals

256 S.W.3d 600

Taylor Elizabeth DAY, A Minor, by Erin E. FINNERN, Next Friend, and Erin E. Finnern, Individually, Petitioners/Respondents, v. Jacob Franklin DAY, Respondent/Appellant.

No. ED 89972.

Missouri Court of Appeals, Eastern District, Division One.

June 24, 2008.

Alexandra M. Hart, Clayton, MO, for respondents.

Stephen P. Ahlheim, Ahlheim & Dorsey L.L.C., St. Charles, MO, for appellant.

KATHIANNE KNAUP CRANE, Presiding Judge.

Father appeals from the trial court's judgment in a paternity action. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Father, Jacob Day, and mother, Erin Finnern, are the biological parents of Taylor Elizabeth Day (the child), who was born out of wedlock on August 8, 2000. Mother and father lived together with the child until May 2002. After they separated, the child lived with mother, and father had visitation, without a court order or formal agreement. Father married his current wife on June 11, 2005.

On March 3, 2006, mother filed a petition for declaration of paternity, custody, visitation, child support, and costs. On May 9, 2006, father filed an answer and cross-petition for declaration of paternity, custody, and support. On June 30, 2006, father filed a motion to be awarded sole physical and legal custody of the child and child support pendente lite. Mother married her current husband on July 8, 2006.

On July 20, 2006, the trial court entered, by consent of the parties, a judgment pendente lite (PDL) that granted joint legal custody of the child to mother and father, sole physical custody to mother, and visitation rights to father. It also ordered father to pay child support. The PDL was silent on relocation of the child.

In late November or early December 2006, mother's husband received a job offer that had a higher salary with more potential for advancement than his current position. However, it required him to move to Texas by January 1, 2007. On December 21, 2006, father filed a petition for injunctive relief and a restraining order in the pending action to restrain mother from moving with the child to Texas and to have sole physical custody transferred to him. On December 31, 2006, while this motion was pending, mother and the child moved to Texas. The trial court treated father's petition as a motion to modify the PDL. It conducted a hearing, and on January 9, 2007, it entered a judgment in which it found that it was not in the child's best interests to require her to return to Missouri, to transfer custody to father, or to require mother to return to Missouri. It pointed out that there would be a trial "on the merits" in a few weeks.¹ Father thereafter filed a first amended motion for contempt against mother, alleging that mother had violated the relocation statute.

After a trial in April 2007, the trial court entered a paternity judgment. The court found father to be the natural father of the child. It concluded that mother was not required to comply with section 452.377.2 before she moved to Texas. It found that it was in the child's best interests to award sole legal and sole physical custody to mother with visitation to father. The court also denied father's motion for civil contempt. Father appeals from this judgment.

DISCUSSION

We will sustain the trial court's judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. H.S.H. ex rel. R.A.H. v. C.M.M., 60 S.W.3d 656, 659 (Mo.App.2001); see also Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). In child custody matters, we give greater deference to the trial court's decision than in other cases and will reverse the trial court's custody determination only if the welfare of the child requires a different disposition. C.M.M., 60 S.W.3d at 659. Issues first raised in the argument portion of a brief that are not encompassed by the point relied on are not preserved for review on appeal. In re Adoption of T.J.D., 186 S.W.3d 488, 494 (Mo.App.2006).

For his first point, father contends that the trial court erred in awarding sole physical custody of the child to mother without following section 452.377.2 RSMo (2000)² because this was a child relocation case subject to that statute. Father contends that a PDL custody order is a "court order establishing custody,"³ as referenced in section 452.377.11, and that by virtue of the joint custody awarded to him by the PDL, he was entitled to notice under section 452.377.2. We disagree.

Section 452.375 governs the initial award of custody in paternity cases, as well as dissolution cases. Lampe v. Rust, 190 S.W.3d 631, 632 (Mo.App.2006). Section 452.375 requires a court to determine custody in accordance with the best interests of the child after consideration of the relevant factors. The initial determination of custody is based on the best interests of the child and consideration of the eight factors set out in section 452.375. Edmison v. Clarke, 988 S.W.2d 604, 608 (Mo. App.1999). A trial court may not use a modification of custody standard in this situation. Id. The modification statute, section 452.410, does not come "`into play, unless and until there has been an initial determination of custody pursuant to [section] 452.375.'" C.A.W. v. Weston, 58 S.W.3d 909, 912 (Mo.App.2001) (quoting State ex rel. Dept. of Soc. Serv. v. Maher, 976 S.W.2d 75, 79 (Mo.App.1998)).

In DeFreece v. DeFreece, 69 S.W.3d 109, 113-14 (Mo.App.2002), a dissolution case, the court applied Edmison in the relocation context and held that when a court is making an initial custody determination, it does so under section 452.375; it considers the mother's intention to relocate the child's residence under the relevant factors of that statute, and it is not required to apply the relocation statute, section 452.377. In Brown v. Shannahan, 141 S.W.3d 77 (Mo.App.2004), a paternity case, we held that section 452.377 did not apply to the custody determination in a case in which a mother had relocated with the child prior to the filing of the action because "[s]ection 452.377 provides for modification of existing custody or visitation arrangements." Id. at 79.

When a court makes an initial custody determination based on the child's best interest and in accordance with the factors of section 452.375.2, it is not required to make any additional findings under section 452.377 with respect to relocation. Dunkle v. Dunkle, 158 S.W.3d 823, 835 (Mo.App.2005) (citing DeFreece, 69 S.W.3d at 113-14; Shannahan, 141 S.W.3d at 79; Abbott v. Perez, 140 S.W.3d 283, 291-93 (Mo.App.2004)). Specifically, in this situation, a trial court is not required to address the notice provisions of section 452.377.2, because section 452.377 does not apply to an initial custody determination, "even if one parent relocates before that determination is made." Dunkle, 158 S.W.3d at 835 n. 17.

The paternity judgment from which father appeals was the initial custody determination. That determination was governed by section 452.375.2, and the trial court was not required to make any additional findings on relocation under section 452.377.

However, father argues that the consent PDL order was an order "establishing" custody as that term is used in section 452.377.11 and therefore was an order subject to the notice and procedures laid out in section 452.377.⁴ We disagree.

The consent PDL order was not an order "establishing" custody. Section 452.380.1 allows parties to a custody proceeding to move for a temporary custody order. The purpose of a pendente lite proceeding to obtain temporary custody "`is to adjudicate custody on a temporary basis pending final adjudication because no judicial determination of proper custody has been made.'" Adams v. Adams, 812 S.W.2d 951, 954 (Mo.App.1991) (quoting Muegler v. Muegler, 784 S.W.2d 839, 840 n. 1 (Mo.App.1990)). "The purpose of a PDL order is to maintain the status quo pending final judgment." In re Marriage of Kovach, 873 S.W.2d 604, 607 (Mo.App. 1993). See also Landoll by Landoll v. Dovell, 752 S.W.2d 323, 325 (Mo. banc 1988). It is designed "`to provide temporary relief pending a full hearing on the merits.'" Baumgart v. Baumgart, 944 S.W.2d 572, 576 (Mo.App.1997) (quoting D.K.L. v. L.C.L., 764 S.W.2d 664, 666 (Mo. App.1988)). It "is not itself a full decision on the merits of the custody issue." Id.

Because the award of joint temporary custody in the PDL was not a decision on the merits, it was not an order "establishing" custody, and the provisions of section 452.375 for establishing initial custody applied to the custody determination in this case. The trial court did not err in concluding that section 452.377 did not apply to the custody determination in this case. Point one is denied.⁵

For his second point, father contends that the trial court erred in denying his first amended motion for contempt for mother's failure to notify him of her relocation to Texas, as required by section 452.377. This point is moot because, as we held above, section 452.377 does not apply when a mother relocates with a child prior to an initial determination of paternity and custody. Point two is denied.

For his third point, father asserts that the trial court erred in awarding physical custody to mother because it "confused" the best interests of mother with the best interests of the child in that the child would not be able to develop as close and as meaningful a relationship with father as she would if she remained in Missouri.

In making a best interests determination in a custody case, a trial court must consider the eight...