G.J.R.B. ex rel. R.J.K. v. J.K.B.

Decision Date14 October 2008
Docket NumberNo. 28460.,28460.
PartiesG.J.R.B., by his Next Friend, R.J.K., and R.J.K., Individually, Petitioners-Respondents, v. J.K.B., Respondent-Appellant.
CourtMissouri Court of Appeals

Steven Privette, Willow Springs, MO, for Respondent.

GARY W. LYNCH, Chief Judge.

J.K.B. ("Mother") appeals the trial court's judgment awarding R.J.K. ("Father") joint legal and physical custody of the parties' minor child. Mother raises four points on appeal claiming the trial court erred: (1) in adopting a parenting plan in which the custody arrangement automatically modifies upon the child reaching school age; (2) in denying Mother any reimbursement of necessaries; (3) in changing the child's surname to match Father's surname; and (4) in designating Father's residence as that of the child for educational and mailing purposes. We affirm.

Factual and Procedural Background1

This Court "defers to the trial court's determination of credibility and views the evidence and permissible inferences in the light most favorable to the decree." Mund v. Mund, 7 S.W.3d 401, 403 (Mo. banc 1999) (citing Mehra v. Mehra, 819 S.W.2d 351, 353 (Mo. banc 1991)). With that in mind, we recite the following facts developed at trial.

Father and Mother worked together and began seeing each other romantically in June of 2002. Mother informed Father she was pregnant sometime during the Fourth of July weekend that same summer. Initially, Father suggested Mother consider having an abortion, both because he felt he was not ready to have a child and because he and Mother were not married. Mother refused, and the pair's relationship became strained for a couple of weeks. The two reconciled, however, and a short time later began to plan for the baby and discuss potential names. Mother often brought up marriage, but Father did not want to get married solely because of the baby. About six months into the pregnancy, Mother again broached the subject of marriage, to which Father responded that he wanted to be a part of the baby's life, but still did not want to get married. Father further offered to pay for "half of everything," and reiterated his desire to see the baby and to help Mother raise him. Mother got angry and left, and that was the end of their romantic relationship.

G.J.R.B. ("Child") was born in the early morning hours of April 2, 2003. Although unsure of what to expect, Father went to the hospital later that day to see his son. Mother and her family treated Father respectfully and even took pictures of Father holding Child. Father left for work, but returned to the hospital the next day. This time, Father was told to leave by both Mother and Mother's mother and was threatened with being thrown out. Sometime during the first two weeks of Child's life, Father and his mother went to Mother's home in West Plains to see Child. Father and his mother held Child and played with him for a short time before Mother's friend Sonja arrived. Mother then asked to speak with Father alone, and his mother and Sonja left the house. Once again, Mother asked Father "what [he] planned to do about the ... baby." Father responded that he still did not want to get married but did want to be a part of Child's life, and again offered to pay for half of Mother's expenses. At that point, Mother got angry and told Father she "didn't want anything from [him], didn't want [him] to ever come back ... didn't need anything from [him], and [Child] didn't need anything from [him]." Father left.

Shortly thereafter, Father asked his mother to help him pick out items to give to Mother and Child, as he was unsure of what things they might need and what size to buy. Because he was wary of how Mother would react if he returned to see Child, Father sent the items—including clothes, diapers, burp cloths, blankets, and rattles—with his mother, who delivered them to Mother.

Upon hearing rumors of Mother's infidelity during their romantic relationship, Father had asked her before Child was born to have Child undergo a paternity test, and she agreed. When Father scheduled the test after Child's birth, however, Mother refused to participate, saying she "absolutely would not have a paternity test done." Because of both his suspicion regarding paternity of Child and Mother's warning to stay away, Father did not attempt to see Child again for quite some time.2

Over the course of the next year Mother, Father, and Child crossed paths numerous times, but Mother kept Father and Child apart. Mother would bring Child to work during her maternity leave, or would have Child's babysitter bring him while Mother was working, but Mother would ignore Father, and Father was afraid to approach her. At one point, Mother brought pictures of Child to work with her to show to her coworkers, and specifically instructed them not to show the pictures to Father or tell Father about them. Although he felt unable to approach Mother, Father did drive by her home periodically to make sure she was still living there. Father was fired in September of 2003, and he suspects Mother and her friends were behind it. Shortly after he and Mother stopped seeing each other, Father began seeing another coworker, whom he later married. She, too, was fired.

In the spring of 2004, when Child was a little over one year old, Mother asked Father's mother to watch Child during the day on the weekends, while Mother was at work. This entailed Father's mother driving twenty miles to pick up Child, another twenty miles to bring him back to her home, and then repeating the drive in the evening to drop off Child at Mother's house, for a total of eighty miles per day, twice per weekend. Mother did not pay Father's mother, but she did occasionally pick up Child from her house. Father's mother was happy to see her grandson and to be able to help Mother care for him. As a condition of allowing Father's mother to babysit, however, Mother stipulated that Father's mother could not allow Father to see or speak with Child; if she violated Mother's rule, Mother would stop allowing her and her family to see Child.

Although he had always wanted to see Child, Father was afraid of Mother's reaction since she had told him to stay away, and he was happy that Mother was allowing his mother and the rest of Father's family to get to know Child; he had hoped that Mother would slowly come around to the idea of him getting to know Child, too. So initially, Father abided by Mother's restriction, although he did call his parents to ask about Child whenever he knew Child was there; as time wore on, however, Father started visiting with Child during babysitting sessions. Shortly after Child's second birthday in April of 2005, Father and his family threw a birthday party for Child during one of those sessions.

Throughout the time when she was babysitting Child, Father's mother gave Mother various food items harvested from the family farm. Additionally, Father's mother purchased a new washing machine and gave it to Mother when Mother mentioned that her old machine had broken.

Whenever she was around Father's mother, Mother berated Father and expressed her hatred for him. Shortly after Child's birthday in April of 2005, Father's mother responded to Mother's ranting, to the effect of Mother having to "get over" Father and get on with her life. Mother abruptly stopped permitting Father's mother to babysit.

When Mother cut off the rest of his family from seeing Child, Father realized Mother would never voluntarily share Child and filed this paternity action in July 2005. Shortly after filing, Father's mother attempted to visit Mother and Child at Mother's home; when she arrived there, however, Mother was gone, and there was a new owner living in the house.

Once aware that Mother had moved, Father attempted to find her by sending a card to Mother's old home and asking the postal service for a forwarding address. The card came back with an address near Viola, Arkansas, which Father later learned was Sonja's address. Father's mother and some family members followed Sonja's car home one night, and saw Mother's car in the driveway.

After contacting an attorney and filing this suit in July of 2005, Father was told to expect the situation to be resolved by December of that same year. Father had hired a special process server to serve the paternity action on Mother in Arkansas, and the papers were served on Sonja's son, but before they were returned to the court, Mother entered her appearance in this case by her attorney's filing of a motion to dismiss on August 5, 2005.

Meanwhile, shortly after Mother left West Plains and apparently moved in with Sonja in Arkansas, she had Father's mother served with a temporary restraining order. In October of 2005, trial was held in Arkansas, and the temporary order was made permanent. At that trial, Mother testified that she was currently living in Arkansas and planned to stay there and establish residency. The month before, however, Mother had begun looking for a place of her own in Willow Springs, Missouri, and days after testifying at the trial in Arkansas, Mother did, in fact, return to Missouri by moving to Willow Springs. Neither Father nor the court in this case was advised of this move.

When Mother could no longer be located at her Arkansas address and there was no new activity in the lawsuit after Mother filed her motion to dismiss, Father started driving by Sonja's address twice a week to see if he could find either Mother or Sonja. Father did not see anyone at the address until February of 2006, when he saw Sonja's car and a pickup truck in the driveway. A month later, a "For Rent" sign had gone up, and Father did not see anyone at that location thereafter.

Father again tried to find Mot...

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