Henry v. Henry

• Decision Date: 02 November 2011
• Docket Number: No. SD 30897.,SD 30897.
• Citation: Henry v. Henry, 353 S.W.3d 368 (Mo. App. 2011)
• Parties: Chad Hunter HENRY, Petitioner/Appellant, v. Kristina Robin HENRY, Respondent/Respondent.
• Court: Missouri Court of Appeals

353 S.W.3d 368

Chad Hunter HENRY, Petitioner/Appellant,

v.Kristina Robin HENRY, Respondent/Respondent.

No. SD 30897.

Missouri Court of Appeals, Southern District, Division Two.

Nov. 2, 2011.

Stephen R. Southard, Cape Girardeau, MO, for Appellant.

H. Marvin Gilmore, Sikeston, MO, for Respondent.

WILLIAM W. FRANCIS, JR., Presiding Judge.

Chad Hunter Henry(“Father”) appeals a judgment denying Father's motion to prevent relocation (and other motions as well), and permitting Kristina Robin Henry's (“Mother”) relocation with their son.We affirm the judgment of the trial court.

Facts and Procedural Background

On April 22, 2008, the marriage of Father and Mother was dissolved.There was one child born of the marriage—Tyler Furgison Henry(“Tyler”)—born March 11, 2006.Pursuant to the court's original judgment and parenting plan, Father and Mother shared joint legal and joint physical custody of Tyler.At the time of the dissolution, Father and Mother both lived in New Madrid County, Missouri.The court's initial judgment of dissolution and parenting plan provided parenting time for Father from 5:00 p.m. on Friday until 5:00 p.m. on Sunday, every Tuesday night from 5:00 p.m. until 9:00 a.m. on Wednesday, and 5:00 p.m. on Wednesday through 9:00 a.m. on Thursday.In addition, Father had visitation for major holidays and events.On September 1, 2009, Mother moved to Memphis, Tennessee, with Tyler. Father initially objected to the move to Memphis, but later agreed.Father and Mother adjusted the visitation schedule once Mother moved to Memphis, but the parties disputed the exact adjustment to that schedule.

Mother began employment in October 2008 at the Memphis Recovery Center earning $15.00 an hour.She kept that employment until January 2009.In January 2009, Mother began employment with the City of Millington.

On October 6, 2009, Mother met Mike McCormick(“McCormick”) and began a romantic relationship with him.McCormick was employed as an attorney with a law firm in Memphis.Mother and McCormick began discussing marriage in December 2009.

In late January 2010, Mother was notified that the house she was renting in Millington, Tennessee, was being foreclosed upon and she needed to move immediately.Mother testified that if forced to move, she did not have funds to pay the first month's rent, utility deposit, security deposit, or movers.Around the same time, McCormick's law firm offered him a promotion if he agreed to work in their Atlanta, Georgia, office.McCormick had previously lived in Alpharetta, Georgia—an Atlanta suburb—and owned a house there.

In February 2010, McCormick accepted his firm's promotion, which required his immediate move to Atlanta, Georgia.At the same time, Mother made the decision to marry McCormick and move with him to Georgia, even though she had only known him for three-and-a-half months.At the time of trial, Mother and McCormick were engaged to be married on October 23, 2010.

Mother and McCormick met with Father on February 7, 2010, at Father's residence and Mother provided Father a verbal two-week notice that she intended to relocate to the Atlanta area with Tyler and McCormick.Father informed Mother that he was not in agreement with the relocation.

Father testified that approximately a week later, he received a letter dated February 7, 2010, informing him that Mother would be relocating to Alpharetta, Georgia, on March 1, 2010—an approximate two-week notice of the relocation.Mother's letter was not certified, did not provide Father with an address or phone number, and did not provide the rationale for Mother relocating to the Atlanta area, as required by the judgment and parenting plan and section 452.377.¹

On February 25, 2010, Father filed a motion to modify judgment, a proposed parenting plan, motion for change of judge, and motion to prevent relocation.The latter motion did not include an affidavit as set forth in section 452.377.7.On March 1, 2010, despite Father's objections, Mother relocated to Alpharetta, Georgia, with Tyler.

On April 5, 2010, Father filed a “Motion for Contempt.”On April 21, 2010, Mother and Father stipulated to a temporary visitation schedule.The order provided Father with visitation for a period of ten days, alternating every ten days with Mother.Mother agreed to be responsible for all transportation costs.

On July 29, 2010, the trial court conducted a hearing on all pending motions.On August 17, 2010, “Findings of Facts, Conclusions of Law and Final Judgment” was entered denying Father's “Motion Seeking an Order to Prevent Relocation,”Motion for Contempt, and “Motion to Modify.”The trial court's findings and conclusions focused on the issue of “whether [Mother] should be permitted to relocate to Georgia....”The trial court also found “that exigent circumstances did exist which prohibited [Mother] from giving 60 days notice of relocation to [Father]....”The judgment ordered the parties to continue to share joint legal and joint physical custody of Tyler, and adopted a minimum schedule for Father's parenting time, which included seven weeks in the summer, spring break, most three-day holiday weekends, any other “long” weekend according to the school schedule, and one-half of Christmas vacation.Mother was also ordered to provide all transportation costs for Tyler's visits back to Missouri.Father timely appealed.

Father argues the trial court erred in that: (1)Mother did not meet the requirements of section 452.377 in that exigent circumstances did not exist; (2)the trial court's finding that exigent circumstances existed to justify waiver of the sixty-day notice requirement was against the weight of the evidence; (3) the judgment was against the weight of the evidence as to the best-interests finding; and (4) the best interests of Tyler would be better served by placing him with Father.The issues pertinent to our resolution of this appeal are:

1.Was there reversible prejudice to Father from Mother's failure to meet the requirements of section 452.377?

2.Was the trial court's best-interests finding erroneous?

Standard of Review

This Court's review of a trial court's judgment denying or granting a motion to relocate a minor child is governed by Murphy v. Carron,536 S.W.2d 30, 32(Mo. banc 1976);Mantonya v. Mantonya,311 S.W.3d 392, 395(Mo.App. W.D.2010).Therefore, we must affirm the trial court's ruling if it is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law.Mantonya,311 S.W.3d at 395.We view the evidence in the light most favorable to the trial court's judgment, disregarding all contrary evidence and inferences.Id.An appellate court should not set aside a judgment as being against the weight of the evidence, unless it firmly believes that the judgment is wrong, or the judgment is clearly against the logic of the circumstances.Id.“A trial court's determination in a child custody matter is given more deference than in any other type of case.”Id.

Points I and II: No Prejudice Resulted From Mother's Failure to Give Proper Notice

Father's first point on appeal alleges the trial court erred in denying Father's motion to prevent relocation because Mother did not satisfy the requirements of section 452.377 to relocate Tyler in that exigent circumstances did not exist.Because this first point pre-supposes exigent circumstances did not exist, we begin by addressing Father's second point alleging error in the trial court's finding of exigent circumstances that justified a waiver of the notice requirement.

Section 452.377 attempts to set forth a more detailed procedure for dealing with relocations to help ensure relocating parents and nonrelocating parents are treated consistently, equally, and fairly, while protecting the best interests of the child.Section 452.377.2 provides:

Notice of a proposed relocation of the residence of the child, or any party entitled to custody or visitation of the child, shall be given in writing by certified mail, return receipt requested, to any party with custody or visitation rights.Absent exigent circumstances as determined by a court with jurisdiction, written notice shall be provided at least sixty days in advance of the proposed relocation.The notice of the proposed relocation shall include the following information:

(1) The intended new residence, including the specific address and mailing address, if known, and if not known, the city;

(2) The home telephone number of the new residence, if known;

(3) The date of the intended move or proposed relocation;

(4) A brief statement of the specific reasons for the proposed relocation of a child, if applicable; and

(5) A proposal for a revised schedule of custody or visitation with the child, if applicable.

The procedural requirements in section 452.377, including the requirements for the initial notice, motion and affidavit opposing relocation, and required response, appear to merely provide a mechanism for promptly framing the merits of the relocation issue for the parties and the trial court.As explained by our supreme court in Heintz v. Woodson,758 S.W.2d 452(Mo. banc 1988):

Procedural rules are but the means through which we seek to ensure the fair and orderly resolution of disputes and to attain just results.They are not ends in themselves.For this reason, we do not generally consider noncompliance with rules or statutory procedures to warrant reversal in the absence of prejudice.

Id. at 454.This prejudice principle was applied to determine the effect of noncompliance with the notice provision of section 452.377.2 in Kell v. Kell,53 S.W.3d 203(Mo.App. E.D.2001).²andWeaver v. Kelling,53 S.W.3d 610(Mo.App. W.D.2001).³

While our analysis focuses on Mother's noncompliance with section 452.377 and any resulting prejudice to Father, it is important to note that Father also failed to fully comply with section 452.377 in that his motion to prevent...