Lavalle v. Lavalle

• Decision Date: 23 November 1999
• Parties: (Mo.App. E.D. 1999) . Tonja Lee Lavalle, n/k/a Feingold, Petitioner/Respondent, v. Brian Allen Lavalle, Respondent/Appellant. Case Number: ED75177 Missouri Court of Appeals Eastern District Handdown Date:
• Court: Missouri Court of Appeals

11 S.W.3d 640 (Mo.App. E.D. 1999)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Tonja Lee Lavalle, n/k/a Feingold, Petitioner/Respondent, v. Brian Allen Lavalle, Respondent/Appellant.

Case Number: ED75177

Missouri Court of Appeals Eastern District

Handdown Date: 11/23/99

Appeal From: Circuit Court of the City of St. Louis, Hon. Thomas J. Frawley

Counsel for Appellant: Richard J. Eisen and Michelle J. Spirn

Counsel for Respondent: Lisa A. Herder and Curtis O. Poore

Opinion Summary: Brian Allen Lavalle (Father) appeals from the trial court's "Findings of Fact, Conclusions and Judgment of Modification of Decree of Dissolution" (Judgment), which awarded Tonja Lee Lavalle (Mother) physical custody of the parties' minor child (Daughter), allowed Mother and Daughter to relocate to the State of Maryland, set forth a visitation schedule, and increased Father's child support obligation to $537.00 per month. Mother appeals from the Judgment insofar as it limited to two years the period for relocation of Daughter from the State of Missouri to the State of Maryland. We consolidated these appeals.

AFFIRMED AS MODIFIED.

Division Four holds: The Judgment modifying the parties' dissolution decree and awarding Mother primary physical custody of Daughter, permitting them to relocate to Maryland, revising the visitation schedule in light of Daughter's relocation, and increasing the monthly child support is not against the weight of the evidence and does not reflect an erroneous declaration or application of the law. The trial court did err, however, in limiting Mother's and Daughter's relocation to two years. That limitation is stricken and the judgment as modified affirmed.

Opinion Author: Mary K. Hoff, Judge

Opinion Vote: AFFIRMED AS MODIFIED. Crandall, Jr., P.J. concurs. Karohl, J. dissents in separate opinion.

Opinion:

Brian Allen Lavalle (Father) appeals from the trial court's "Findings of Fact, Conclusions and Judgment of Modification of Decree of Dissolution" (Judgment), which awarded Tonja Lee Lavalle¹ (Mother) physical custody of the parties' minor child (Daughter), allowed Mother and Daughter to relocate to the State of Maryland, set forth a visitation schedule, and increased Father's child support obligation to $537.00 per month. Mother appeals from the Judgment insofar as it limited to two years the period for relocation of Daughter from the State of Missouri to the State of Maryland. We consolidated these appeals. We strike the portion of the Judgment limiting to two years the relocation of the parties' minor child and, as so modified, affirm the Judgment.

The parties were married in 1990 and had one child, Daughter, born on March 30, 1994. The parties' marriage was dissolved on November 2, 1995. In relevant part, by the Judgment and Decree of Dissolution: Separation Agreement (Decree), the court awarded the parties joint legal custody and shared physical custody of Daughter; prohibited Daughter's removal "from the State of Missouri for more than ninety (90) days, without prior specific authorization of the Court or the written consent of both parties"; directed Father to pay child support of $500.00 per month, until Daughter either attended kindergarten or was in day care for less than ten consecutive workdays at which time the support obligation decreased to $365.00 per month; and set forth a detailed visitation schedule.

On December 22, 1997, Mother filed a "Motion to Modify for Removal of the Minor Child from the State of Missouri and for Child Support" (Original Motion). Father filed a "Cross-Motion to Modify" (Cross-Motion). In his Cross-Motion, Father sought modification of the Decree to award him the primary physical and legal custody of Daughter, "subject to appropriate visitation and temporary custody with" Mother, and to award him a reasonable sum of child support. Mother subsequently filed a "First Amended Motion to Modify for Removal of the Minor Child from the State of Missouri and for Child Support" (Amended Motion). In her Amended Motion, in relevant part, Mother asked for modification of the Decree: allowing her to remove Daughter from Missouri; granting Mother primary legal and physical custody of Daughter "subject to reasonable and liberal temporary custody periods to" Father; setting forth provisions for the expense and transportation of Daughter during those temporary custody periods; directing Father to pay child support "in accordance with the Missouri Child Support Guidelines, retroactive to the date of filing"; and requiring Father to pay Mother's reasonable attorney's fees and costs.

It is undisputed that at the time the motions were filed: both parties had remarried; Mother's husband had accepted a clinical associate position in the surgery branch of the National Cancer Institute in Bethesda, Maryland that began in July 1998; Father lived in Illinois with his wife and stepchildren; and the majority of the parties' extended families lived in either New Madrid or Kewanee, Missouri.

In August 1998, the trial court conducted an evidentiary hearing on Father's Cross-Motion and on Mother's Amended Motion. In its Judgment, the trial court granted in part and denied in part each of those motions.

With respect to the relocation and custody requests, the trial court found there was a change in Mother's circumstances and the best interests of Daughter required that Mother "be permitted to remove the minor child from the State of Missouri and establish their residence in the State of Maryland." The trial court expressly noted it must compare "the geographical, material and social aspects of the alternative places of residence and, more importantly, all aspects of the alternative custody offered by each parent." The trial court concluded: Maryland "will have professional advantages for [Mother]'s current husband and . . . will improve in the future, if not immediately, the general quality of life of [Mother] and the minor child"; Mother's present husband had demonstrated "a need that cannot be met in the home community"; "[n]othing impugns [Mother]'s motives in relocating, for she has not interfered with either [Father]'s rights to temporary physical custody with, or telephone access to, the minor child"; "[n]othing impugns [Father]'s motives for opposing [Mother]'s relocation, and . . . notwithstanding the distance and costs of transportation to and from Maryland, any relocation by [Mother] to the State of Maryland would not severely or unnecessarily curtail [Father]'s temporary custody with the minor child."

Therefore, the trial court awarded Mother primary physical custody while retaining the parties' joint legal custody of Daughter. The trial court expressly stated that "effective September 6, 1998, [Mother] shall be, and hereby is, permitted to remove the minor child from the State of Missouri for a period of two (2) years and, during the said period, establish the residence of the minor child in the State of Maryland."

The trial court also set forth temporary physical custody periods for Father. The provisions relevant to this appeal are as follows:

4. Beginning upon the minor child's entry into kindergarten, [Father] shall be, and hereby is, awarded temporary physical custody of the minor child in the state of [Mother]'s residence with the minor child at reasonable times and for reasonable intervals, upon reasonable notice to [Mother], which, in all events, shall include the following:

(a) President's Day weekend from 3:00 p.m. Friday until 7:30 a.m. Tuesday;

(b) Martin Luther King Day weekend from 3:00 p.m. Friday until 7:30 a.m. Tuesday;

(c) Memorial Day weekend from 3:00 p.m. Friday until 7:30 a.m. Tuesday;

(d) Labor Day weekend from 3:00 p.m. Friday until 7:30 a.m. Tuesday.

5. Beginning upon the minor child's entry into kindergarten, [Father] shall be, and hereby is, awarded temporary physical custody of the minor child outside or, at his option, inside the state of [Mother]'s residence with the minor child at reasonable times and for reasonable intervals, upon reasonable notice to [Mother], which, in all events, shall include the following:

(a) Thanksgiving vacation from 3:00 p.m. Wednesday until 10:00 a.m. Monday;

(b) Spring vacation from 3:00 p.m. on the final day of school prior to commencement of the vacation period until 10:00 a.m. on the day on which school resumes upon conclusion of the vacation period;

(c) In even numbered years, Christmas vacation from 3:00 p.m. December 23 until 7:00 p.m. December 31;

(d) In odd numbered years, Christmas vacation from 10:00 a.m. on December 26 until 10:00 a.m. January 2;

(f) [sic] From 5:00 p.m. June 10 until 5:00 p.m. July 15 inclusive and from 5:00 p.m. July 30 until 5:00 p.m. August 24 inclusive. ([Mother] shall have exclusive physical custody of the minor child from 5:00 p.m. July 15 until 5:00 p.m. July 30 inclusive).

The trial court directed that Mother pay "[a]ll costs for transportation of the minor child between the state of [Mother]'s residence and the state of [Father]'s residence for the exercise by [Father] of his periods of temporary physical custody . . . under paragraph[] . . . 5 hereof." Furthermore, the trial court provided that "all costs for transportation of the minor child between the state of [Mother]'s residence and the state of [Father]'s residence for the exercise by [Father] of his [other] periods of temporary physical custody with the minor child shall be paid by [Father]."

With respect to child support, the trial court concluded approximately three years had passed since entry of the Decree and the amount payable by Father under the Missouri Child Support Guidelines had increased at least twenty percent, constituting a change in circumstances making the amount paid by Father unreasonable. The trial court calculated the amount of child support now due as follows: Father had income of $3,816.00 per month; Mother had $0 income;...