Jones v. Jones

• Decision Date: 01 August 1995
• Docket Number: No. WD,WD
• Citation: Jones v. Jones, 903 S.W.2d 277 (Mo. App. 1995)
• Parties: Susan Gale JONES, Appellant, Juveniles, Plaintiff, v. Michael Dennis JONES, Respondent. 50565.
• Court: Missouri Court of Appeals

Page 277

903 S.W.2d 277

Susan Gale JONES, Appellant Juveniles, Plaintiff, v. Michael Dennis JONES, Respondent.

No. WD 50565.

Missouri Court of Appeals Western District.

Aug. 1, 1995.

Gary Lee Stamper, Columbia, for appellant.

Lori J. Levine, Jefferson City, for respondent.

Terri Gonder, Columbia, Guardian ad litem.

Before FENNER, C.J., P.J., and BRECKENRIDGE and ELLIS, JJ.

FENNER, Chief Judge.

Susan Gale Jones (Mother), appeals from an order modifying a decree of dissolution from her marriage to Michael Dennis Jones (Father), as it pertained to the removal of the minor children from the State of Missouri and from the denial of her request for an increase in child support. Mother presents three points on appeal claiming the trial court erred by: (1) ordering the minor children be returned to Missouri because mother argues that she is entitled to custody, having previously been granted permission to remove the children from the State, and she further contends that permission to remove is non-modifiable where custody is not at issue under section 452.377, RSMo 1994; ¹ (2) ordering the minor children be returned because she alleges no substantial evidence supports a change in circumstances and the parties are collaterally estopped from relitigating the issue of removal; and (3) denying her counter-motion to modify child support because she represents that application of Rule 88.01 would result in a change in support by 20% or more and the court has not expressly stated the necessity of a downward departure from the guidelines. The judgment of the trial court is affirmed.

The marriage of the parties was dissolved on September 23, 1993. The parties had entered into a separation agreement on August 17, 1993. In this agreement, Mother and Father agreed that they would share joint legal custody of their minor children, Michael, born March 26, 1984; Atlantis, born September 29, 1986; and John, born September 15, 1988. Mother was given primary physical custody of the children. The separation agreement also contained a clause stating:

The parties further agree that Wife shall have the right to remove the minor children from the State of Missouri to reside in Charleston, South Carolina. Husband further agrees that Wife shall have the right to move with the children to any other place in the continental United States upon no less than sixty days' advance notice to Husband.

Shortly after signing the agreement, Mother went to Charleston, South Carolina to look for a house and find a school for the children. Mother called Father from Charleston asking that he take her back. Father testified that Mother told him that she had made a horrible mistake and that it was important for the children to be close to him. Mother returned to Missouri and enrolled the children in Christian Chapel Academy, a private Christian school in Columbia, Missouri. At the date of the dissolution decree, she was residing in Columbia, Missouri. Father resided in Mexico, Missouri, where he practiced medicine as an obstetrician-gynecologist. Mother purchased a home in Mexico, Missouri and Father believed that no further move would occur. Before Mother moved to Mexico, Missouri, Father saw the children nearly every day. After the move, Father saw the children every weekend and, at times, during mid-week.

At the time of the dissolution Mother had not held employment outside of the home since Michael's birth. Father testified that at the time he signed the separation agreement, he felt that removal of the children from Missouri was in their best interests. The reason Father felt this way was because of the circumstances surrounding Mother's affair with another man. Father was instrumental in trying to establish a new school in Mexico, the Cornerstone Christian Academy. Mother had an affair with Pete Greenwell, the man Father hired for the position of principal at the school. According to Father, the affair was a very public matter and he felt that the children would suffer repercussions from it.

While the children lived in Columbia, Father established a close relationship with the children, participating in many activities with them, especially after his move to a farm. In March, 1994, Mother resumed her relationship with Pete Greenwell. Father, fearing that Mother would remove the children from the state, filed a motion to modify the dissolution on April 7, 1994, claiming a substantial and continuing change in circumstances rendering certain portions of the separation agreement as not in the best interests of the children. His request for an injunction was denied however, and Mother moved to South Carolina on May 19, 1994. The children joined her there at the completion of Father's summer custody period.

Mother married Greenwell in July. The two kept their marriage secret for a time allegedly to give the children time to adjust. Father has encountered difficulty in his contact with the children. Mother often refuses to discuss travel plans in advance with Father and the children's telephone conversation with Father are monitored. Mother has discontinued music and dance lessons for the children. Mother apparently moved to South Carolina to put distance between herself and Father. She did not move to be with family or to improve her economic circumstances.

Father paid $2,000.00 per month in direct child support. He maintained health insurance on all of the children, paid the first $1,000.00 annually in uninsured medical costs, paid for routine dental care, maintained life insurance for the benefit of the children and paid for their tuition in a private school.

A hearing was held on Father's motion on November 18, 1994. On November 30, 1995, the trial court entered its order sustaining Father's motion to modify. The court ordered that the children be returned to Missouri on or before February 1, 1995. Furthermore, the trial court denied Mother's counterclaim for an increase in child support. This appeal followed.

STANDARD OF REVIEW

Modification of a prior decree of custody depends upon proof of facts showing that a change of circumstances has occurred since the prior decree in the circumstance of the child or the child's custodian. Lee v. Lee, 767 S.W.2d 373, 375 (Mo.App.1989). Such standard is codified in section 452.410, which states, in pertinent part:

[T]he court shall not modify a prior custody decree unless it has jurisdiction under the provisions of section 452.450 and it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child.

Review of this court tried case is governed by the familiar principles of Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The trial court's decision must be affirmed 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. Id. Furthermore, the trial court has the prerogative to determine the credibility of the witnesses and may accept all, part, or none of their testimony. Randel v. McClanahan, 760 S.W.2d 607, 608 (Mo.App.1988). In our review of a court tried case our chief concern is the correctness of the result reached by the trial court and we will affirm the trial court's judgment if it is deemed correct under any reasonable theory supported by all of the evidence. Id. The trial court is granted broad discretion; the trial court's judgment will be affirmed even if the evidence would support another conclusion. Wild v. Holmes, 869 S.W.2d 917, 919 (Mo.App.1994). Our paramount concern is, of course, the best interests of the child. Carter v. Schilb, 877 S.W.2d 665, 667 (Mo.App.1994); Tucker v. Tucker, 778 S.W.2d 309, 312 (Mo.App.1989).

RETURN OF THE CHILDREN TO MISSOURI

Mother contends that the trial court erred in ordering the children to be returned to Missouri because she had been granted permission to remove the children by order of the court and with the written consent of Father and that such permission is non-modifiable where custody is not at issue. Mother construes the language of section 452.377 in support of her position. The statute provides:

A person entitled to the custody of a child shall not change the residence of the child to another state or remove the child from this state for a period of time exceeding ninety days except upon order of the court or with the written consent of the parties with custody or visitation rights. Where the noncustodial person has been given visitation rights by the custody decree, such court permission may be granted only after notice to the person having visitation rights and after opportunity for hearing. Violation of a court order under this section may be deemed a change of circumstance under section 452.410, allowing the court to modify the prior custody decree.

Mother focuses on the language "except upon order of the court or with the written consent of the parties with custody or visitation rights." She claims that this language imposes only one condition precedent to the removal of the children; either (1) by order of the court or (2) written consent. She further extends the argument claiming that once the parties reach an agreement between themselves, a judicial determination is thereby foreclosed.

Were the question in this case whether or not Mother had the right to take the children to South Carolina, her analysis might be appropriate. However, the question does not concern the right or wrong in the physical act of moving the children to South Carolina, but the propriety of such a move considered in light of Father's motion to modify. To hold that the trial court is foreclosed from considering the issue in light of the separation agreement signed by the parties is repugnant to the care and concern for children...