Love v. Love

• Decision Date: 05 March 2002
• Docket Number: No. WD 59268.,WD 59268.
• Citation: 75 S.W.3d 747
• Parties: Kimberly S. LOVE, Appellant, v. Karl David LOVE, Respondent.
• Court: Missouri Court of Appeals

75 S.W.3d 747

Kimberly S. LOVE, Appellant, v. Karl David LOVE, Respondent.

No. WD 59268.

Missouri Court of Appeals, Western District.

March 5, 2002.

Motion for Rehearing and/or Transfer to Supreme Court Denied April 30, 2002.

Application for Transfer Denied June 25, 2002.

B. Allen Heeke, Jr., for appellant and Kimberly S. Love, Sanford, FL, pro se.

Karen "Kit" C. Warner, Liberty, for respondent.

Tammy J. Glick, Platte City, Guardian ad litem.

Before: EDWIN H. SMITH, P.J., and HOWARD and HOLLIGER, JJ.

EDWIN H. SMITH, Presiding Judge.

Kimberly S. Love (mother) appeals the judgment of the Circuit Court of Platte County modifying its decree dissolving her marriage to the respondent, Karl David Love (father), by awarding "primary" physical custody of their son, Cameron J. Love, to the father, and finding the mother in contempt.

The mother raises six points on appeal. In Point I, she claims in two subpoints that the trial court erred in entering its judgment of modification, awarding primary physical custody of the parties' minor child to the father because: (1) the court lacked jurisdiction to modify custody on any of the four permissible bases provided in § 452.450.1;¹ and (2) the court did not make the requisite findings to support its determination of jurisdiction. In Point II, she claims that "[t]he Trial Court erred in entering an Order to Show Cause on the Respondent's Petition for Writ of Habeas Corpus because the Respondent was not entitled to a writ of habeas corpus as a matter of law in that the trial court was without jurisdiction to enter an order, the petition was defective on its face, the petition was trying to be enforced outside the jurisdictional limits of the trial court, and the Respondent had no specific right to enforce at the time it was entered." In Point III, she claims that the trial court erred in finding her in contempt for "her willful failure and refusal to allow the minor child to go to the home of the respondent at the conclusion of the child's school year on or about May 18, 2000 as required by the July 9, 1997 Judgment of Modification," and ordering her to pay $750 of the father's attorney's fees incurred in prosecuting her for contempt because the evidence was insufficient to show that she intentionally violated the circuit court's order in the respect found by the court. In Point IV, she claims that the trial court erred in modifying its decree by awarding father primary physical custody of the minor child because its decision was based on evidence not in the record in that the court in modifying its decree relied solely on the report of the GAL, which was not in evidence. In Point V, she claims that the trial court erred in modifying its custody decree to deny joint legal and physical custody to the parties and awarding sole physical custody to the father because the trial court, in doing so, failed to make requested findings concerning its reasoning for denying joint custody and because the record did not support the denial. In Point VI, she claims that the trial court erred in denying her trial counsel's request for closing argument because in doing so it violated her right to due process.

We affirm in part, and reverse and remand in part.

Facts

The parties were married on October 28, 1989. There was one child born of the marriage, Cameron J. Love, born March 25, 1990. The mother filed a petition for dissolution of marriage in the Circuit Court of Clay County on June 27, 1994. On August 8, 1994, the father filed a motion for transfer to Platte County, which was granted on August 16, 1994. On August 26, 1994, the father filed his answer and counterclaim for dissolution of marriage. The Circuit Court of Platte County entered its decree dissolving the parties' marriage on December 16, 1994, and, inter alia, awarded the parties joint legal and physical custody of the minor child, with the child's primary residence to be with the mother and the parties to reside within 50 miles of downtown Kansas City, Missouri, and ordered the father to pay the mother $600 per month in child support.

On July 23, 1996, the mother informed the father that she was moving to Florida on July 28 to be with her fiancé and that she had already found a new job in Florida. She also informed the father of her intention to take Cameron to live with her in Florida and proposed that they modify their custody arrangement so that he would spend his school year during the first and second grades in Florida with her, with the summers being spent with the father, and that he would spend the school year during the third and fourth grades in Missouri with the father, with his summers being spent with her.

On August 26, 1996, the father filed a motion to modify the circuit court's custody decree awarding him primary physical custody and terminating the child support award to the mother. At the same time he filed a "Motion for Temporary Custody, Child Support, Restraining Order, Preliminary Injunction, Attorney's Fees, Suit Money and Costs Pendente Lite," seeking, inter alia, temporary custody of Cameron. On August 29, 1996, the court granted temporary custody of Cameron to the father. On October 8, 1996, the mother filed her answer and motion to modify physical custody, requesting, inter alia, that primary physical custody of Cameron be awarded to her and that she be allowed to move with him to Florida. On October 11, 1996, the circuit court entered a "Consent Order Modifying Temporary Custody, Visitation and Support," finding that the parties had stipulated to the father's retaining temporary custody of the minor child; abating child support to the mother; and dissolving the temporary restraining order against the mother to allow her to take Cameron to Florida for her authorized periods of visitation.

On July 9, 1997, the parties entered into a "Parenting Agreement," which provided that they would share joint legal and physical custody of Cameron as follows:

2. The parties agree that the child shall reside primarily in the home of the Mother during the summer months of June, July, and August of 1997 until the end of his summer break, at which time he will return to the home of the Father for resumption of school classes on or about August or September of 1997. Thereafter, the minor child shall reside primarily in the home of the Father until on or about the 15th day of July, 1998. The child shall then primarily reside with the Mother from on or about July 15, 1998 until the conclusion of the child's regularly scheduled school classes on or about May or June of 1999. The child shall then primarily reside with the Father through the summer of 1999 until the end of his summer break, at which time he will return to the home of the Mother for resumption of school classes on or about August or September of 1999. The child shall then primarily reside in the home of the Mother until the conclusion of the child's regularly scheduled school classes on or about May or June of 2000. The child shall then primarily reside with the Father through the summer of 2000 until the end of his summer break.

...

6. FORUM SELECTION CLAUSE:

The parents specifically recite that it is their intention that they each be designated as a joint custodian for the minor child without regard that they do not each reside within the State of Missouri. They further specifically declare that so long as one of them remains a resident of the State of Missouri, that Missouri shall be deemed and declared the child's "home state" within the meaning of the Uniform Child Custody Jurisdiction Act. The parents further agree that so long as one of them continues to reside within the State of Missouri, the Circuit Court of Platte County, Missouri shall remain the exclusive forum for determining all matters pertaining to the care, custody, control and support of the child, absent an Order of that Court to the contrary. A parent seeking to invoke the jurisdiction of another Court, contrary to these recitals, shall be liable to pay the other parent's reasonable court costs, attorney's fees, and transportation costs incurred in defense of that action.

On that same day, the court entered its judgment of modification awarding joint legal and physical custody of the minor child to the parties in accordance with their agreed-upon parenting plan, which was incorporated in the judgment in its entirety, finding that it was fair and not unconscionable and that the custody arrangement provided therein was in the best interests of the child. The court's judgment also included an arbitration provision, which had been included in the parties' parenting plan and which provided:

7. The parents acknowledge that this agreement contemplates a division of the child's time as between the parents only through the summer of the year 2000. The parents agree that they will commence mediation no later than by June 1, 2000 in an effort to reach a further written agreement no later than August 1, 2000 to further allocate their periods of primary custody with the child. Such mediation shall be for a minimum of two hours before a qualified mediator located in the Kansas City metropolitan area. The parents agree that they shall each pay one-half of the cost of any such mediation. If the parties are not able to reach a further written agreement by August 1, 2000, then, until further order of the court, the parents shall have primary custody of the child in alternate years, with the child residing primarily in the home of the Father in alternate years commencing at the beginning of the school year in 2000 until the end of the summer break in 2001; and with the child residing primarily in the home of the Mother in alternate years commencing at the beginning of the school year in 2001 until the end of the summer break in 2002.

Pursuant to the terms of the approved parenting plan, Cameron attended first and second grades in Kansas City, while primarily residing with his father...