Hahn v. Hahn, 39775

• Decision Date: 11 July 1978
• Docket Number: No. 39775,39775
• Parties: Cletus Raymond HAHN, Movant-Appellant, v. Linda Fay HAHN, Respondent. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 775

569 S.W.2d 775

Cletus Raymond HAHN, Movant-Appellant, v. Linda Fay HAHN, Respondent.

No. 39775.

Missouri Court of Appeals, St. Louis District, Division One.

July 11, 1978.

Buerkle, Lowes & Beeson, Albert C. Lowes, David G. Beeson, Jackson, for movant-appellant.

Schnapp, Graham & Reid, John W. Reid, II, Fredericktown, for respondent.

McMILLIAN, Judge.

Appellant appeals from a judgment of the circuit court of Madison County denying appellant's motion to modify the child custody provision of a divorce decree entered May 2, 1974. The motion prayed for permanent custody of the child born of the marriage between appellant Cletus Hahn and respondent Linda Hahn. The appellant contends that (1) the trial court erred in failing to take into account the well established "policy of law" that one who has custody of a minor child must, absent unusual circumstances, seek approval of the court prior to the removal of the said child from the court's jurisdiction; (2) the trial court erred as a matter of law in refusing to honor the timely request by counsel for the appellant for findings of fact and conclusions of law pursuant to Supreme Court Rule 73.01(1)(b); and (3) the court abused its discretion by requiring appellant to pay $2,082.50 of respondent's attorney's fees. For reasons hereinafter stated we affirm, but remand for the trial court to reassess appellant's visitation rights in light of the respondent's move from the jurisdiction and appellant's present inability to visit his child.

When appellant and respondent were divorced on May 2, 1974, the court awarded custody of the couple's minor child, age one at the time, to respondent and granted appellant visitation rights. The court provided that appellant could not keep the child overnight. According to the appellant, this limitation and the respondent's refusal to allow appellant visiting rights on Sundays, made it possible for appellant to see his son on only fifteen different occasions after the dissolution and before respondent removed the child from the jurisdiction.

On January 22, 1975, the respondent and the child began living in Texas, where she is presently employed at the Continental Bus Station in Houston. She has a savings account of $66.51 and a checking account of $472.92.

Appellant is employed by Mississippi Lime Company, located at Ste. Genevieve, Missouri. He has a savings account of $700.00 and a checking account of $351.00. He is remarried and lives in a two-bedroom mobile home. Appellant has a 1973 Ford pickup truck with $900.00 remaining to be paid, carries life insurance on himself payable to his current wife, and maintains health insurance for his child.

On June 18, 1975, appellant filed a motion to modify the dissolution decree alleging that the move of his ex-wife and son from Missouri to Texas was a change in circumstances justifying a modification, especially since it was now virtually impossible for him to visit his son on a regular basis. Appellant's present wife stated at the hearing that she would be glad to stop working and to take care of her husband's son.

After several motions and hearings by the parties, the trial court denied appellant's motion for a change in custody and awarded respondent $2,082.50 in attorney's fees. ¹ This appeal followed.

First, appellant contends that the court failed to take into account the well established "policy of law" which requires one who has custody of a minor to seek approval of the court prior to the removal of the child from the jurisdiction. Appellant claims that by not recognizing this "policy of law" the trial court prejudiced the rights of the appellant and denied the minor child the opportunity to know his father. Appellant further contends that there has been a sufficient change in the circumstances to warrant a modification of the previous decree.

It is important to note that in deciding matters of child custody "we are bound by the fundamental tenet that in matters relating to child custody, the (child's) welfare dominates all other considerations. . . . " J.L.W. v. D.C.W., 519 S.W.2d 724, 729 (Mo.App.1975); See also § 452.410 and § 452.375, RSMo 1973. The question becomes whether it is in the best interests of the child to permit his removal to another jurisdiction.

The general rule that in matters affecting the custody of a child the court will be governed primarily by welfare and best interests of the child applies in determining whether to permit or prohibit removal of the child from the jurisdiction. (See 24 Am.Jur.2d, Divorce and Separation § 798)

The best interests of the child require that a change of custody occur only if such a change will be a positive improvement for the child because "a change of custody disrupts the child's living arrangements, and the channels of its affection." 42 Am.Jur.2d, Infants § 57. In the case at hand, custody of appellant's minor child was awarded to respondent. There is no evidence to show that respondent is not a fit parent, that the child is not receiving good care, or that the child is living in anything but a healthy environment. Appellant claims that the fact that respondent left the jurisdiction and thereby denied appellant the right to visit his son provides a sufficient justification for changing custody. This court has recently ruled on a similar case. In Agne v. Agne, 565 S.W.2d 799 (Mo.App.1978) appellant contended that a wife's action in removing the child from Missouri to Oregon without court approval and which defeated the non-custodial parent's right to exercise temporary custody required that custody be changed. This court disagreed and stated that, "(w)hile this is a factor which may warrant a change, it is only one factor and does not compel the court to modify custody." A change in custody should not be ordered as a punitive measure ² or because a parent's visitation rights will be infringed

(T)he court's primary concern in choosing between a resident and nonresident applicant is the welfare and interest of the child. Thus, where it was shown that the welfare and interests of the child would be better promoted, the courts have awarded custody to a nonresident, or permitted a resident custodian to remove the child to another jurisdiction in which such custodian intended to establish a new residence. And this conclusion has not been affected by the fact that the parent's right of visitation would be curtailed or destroyed by the removal of the child from the jurisdiction or that the child will be taken to and live in a foreign country. 42 Am.Jur.2d Infants, § 52.

See also Hart v. Hart, 539 S.W.2d 679, 682 (Mo.App.1976); Northrup v. Sieve, 517 S.W.2d 470, 474 (Mo.App.1974).

Appellant relies on Dupree v. Dupree, 357 S.W.2d 241 (Mo.App.1962) which correctly states that

(T)he courts encourage the continued interest, love and affection of the divorced parents for the child and strive to afford the child ample opportunity to have close contact with both parents as it grows up.

This result, however, is not possible in the case at hand, even if custody was to be awarded to appellant. Respondent-mother has moved to Texas, making the close contact with both parents impossible. We find that the trial court had sufficient evidence to conclude that it would be in the best interests of the child to permit the mother to remove the child from the state.

Appellant next contends that the court erred in refusing to honor the timely request by c...