Maher v. Maher

• Decision Date: 05 August 1997
• Docket Number: No. 70142,70142
• Citation: 951 S.W.2d 669
• Parties: Timothy P. MAHER, Appellant, v. Rosemary McCook MAHER, Respondent.
• Court: Missouri Court of Appeals

Page 669

951 S.W.2d 669

Timothy P. MAHER, Appellant, v. Rosemary McCook MAHER, Respondent.

No. 70142.

Missouri Court of Appeals,

Eastern District,

Division Three.

Aug. 5, 1997.

Christophe Karlen, John J. Diehl Jr., St. Louis, for appellant.

Theodore S. Schechter, Michael Schechter, St. Louis, for respondent.

CRAHAN, Chief Judge.

Timothy Maher ("Father") appeals the judgment modifying the parties' decree of dissolution. Father contends the trial court erred in granting Rosemary Maher ("Mother") primary legal and physical custody of their minor son, Andrew, authorizing Mother to move the child to the state of Florida where Mother now resides with her new husband, and awarding Mother $15,000.00 in attorney's fees. Father also asserts that the visitation schedule established by the court is unreasonable and impractical and that the trial court erred in admitting and excluding certain evidence. We affirm the change in custody, the authorization to move the child to Florida and the award of attorney's fees. We find that the visitation schedule is unreasonable and reverse and remand that portion of the judgment with directions to revise the visitation schedule in accordance with the principles set forth in this opinion.

Mother and Father were married in September 1991. Andrew, born January 24, 1994, was the only child born of the marriage. On May 20, 1994, Mother moved out of the marital home. Dissolution proceedings were instituted shortly thereafter. The decree of dissolution, which incorporated the parties' settlement agreement, was entered on July 11, 1994. The decree provided that the parties were to share joint legal and physical custody of Andrew. The decree also prohibited either party from removing Andrew from the state of Missouri for more than 90 days without prior authorization of the court or written consent of the other party.

About a week prior to entry of the decree, Mother began dating James Liermann, who resided in Florida. Mr. Liermann had worked in the computer industry in Florida for several years but his employer eliminated his position in May 1994. Mr. Liermann was then out of work for about six months while he sought new employment. Although he looked for employment in both St. Louis and in Florida, he received only one offer, as vice president of telesales for a company in Tampa, which he accepted. His new position would allow him to earn about $130,000.00 per year in salary and bonuses and this substantial income would enable Mother to stay home with Andrew instead of working as a travel agent as she had originally planned.

In April 1995 after she and Mr. Liermann became engaged, Mother filed a motion to modify the decree. An amended motion was filed in June 1995. The amended motion alleged that there had been a substantial and continuing change in circumstances including, inter alia, Mother's engagement and imminent plans to marry Mr. Liermann, Mother's desire to live in Tampa with Mr. Liermann, advantages to Andrew and Mother which could result from the move and improve the quality of Andrew's life, Mother's status as Andrew's primary caretaker since his birth, the availability of a secure and stable environment for Andrew in Florida, and Father's cohabitance with a woman who was not his wife. Mother sought modification of the decree to grant her primary legal and physical custody of Andrew, permission to change his residence to Florida, an award of temporary physical custody to Father suitable for a non-custodial, non-resident parent and an award of attorney's fees.

Both parties, Mr. Liermann and Father's fiance, Ms. Sheehan, testified at the hearing and both parties called an expert witness. The trial court later issued extensive findings of fact and conclusions of law as part of its judgment modifying the decree. As noted above, the trial court granted Mother's request for primary legal and physical custody of Andrew, authorized her to move Andrew to her new home in Florida, ordered Father to pay $15,000.00 of Mother's attorney's fees and established a temporary custody and visitation schedule for Father. On appeal, Father presents seven points of error challenging each of these rulings and two related evidentiary rulings.

Father's first point is directed to that portion of the judgment granting Mother's request for primary physical custody of Andrew and authorizing her to move Andrew to her new home in Florida. In his first subpoint, Father urges that Mother failed to demonstrate a change of circumstances so substantial and continuing as to make the terms of the existing order unreasonable as required by section 452.410 RSMo 1994. Father emphasizes that Mother's original motion was filed just nine months after entry of the decree, that Mother began seeing Mr. Liermann fully knowing that he lived and worked in Florida, and that she became engaged to and married Mr. Liermann despite the fact that her request to move the child to Florida was in litigation and was actively opposed by Father. Father further complains that if the trial court had not prevented him from introducing documents and testimony on the subject, rulings which are the subject of separate points, he would have established that Mother had requested a provision authorizing her to move Andrew out of the state be included in the original decree. Although the significance of these contentions is not entirely clear from the argument following this point, Father's premise appears to be that if Mother was contemplating the possibility of remarriage to Mr. Liermann at the time the original decree was entered and proceeded to marry him knowing that she could not move Andrew without court approval or Father's consent, the trial court could not properly find that Mother's remarriage and her new husband's acceptance of substantial employment in Florida constituted a substantial and continuing change in circumstances. If this is Father's position, it is not supported by any authority and is completely without merit. The fact that a party may have contemplated the possibility of a change in circumstances and prudently, albeit unsuccessfully, attempted to provide for the contingency in the original decree does not mean that there is no substantial and continuing change in circumstances if the contingency ultimately comes to pass. Remarriage and a new spouse's acceptance of employment in another state have been specifically recognized as the sort of substantial and continuing change in circumstances that will support modification if shown to be in the best interest of the child. Riley v. Riley, 904 S.W.2d 272, 276 (Mo.App.1995).

In another subpoint, Father urges that the weight of the evidence does not support the trial court's determination that, applying the four factor analysis this court has adopted for evaluating a request to move a child permanently to another state, the move to Florida would be in Andrew's best interest. Those factors are:

(1) The prospective advantage of the move in improving the general quality of life for the custodial parent and child;

(2) The integrity of the custodial parent's motives in relocating (3) The integrity of the non-custodial parent's motives for opposing relocation and the extent to which it is intended to secure a financial advantage with respect to continuing child support; and

(4) Whether there is a realistic opportunity for visitation which can provide an adequate basis for preserving and fostering the non-custodial parent's relationship with the child if relocation is permitted.

Id. at 277; Wild v. Holmes, 869 S.W.2d 917, 919 (Mo.App.1994); Michel v. Michel, 834 S.W.2d 773, 777 (Mo.App.1992).

Citing Riley, the trial court found that the move would improve the quality of life for both Mother and Andrew. Mother would be able to enjoy a meaningful and loving relationship with her new husband. Andrew would have the advantage of Mother staying home and caring for him, living in an emotionally stable environment with two mature adults, a positive role model in Mr. Liermann, living in a stable upscale neighborhood with plenty of young families with children, regular church attendance with Mother and Mr. Liermann and proximity to his maternal grandparents if they carry through with their plans to relocate to Florida.

The trial court further found that Mother's motive in moving to Florida is to be with her new husband and not to deprive Father of his visitation rights with Andrew. Although the trial court believed that Father loves his son and wants a healthy father-son relationship, the court concluded that Father's opposition to the move may be motivated by feelings of resentment. The court found that Father believes that Mother and Mr. Liermann had an affair during the marriage and that Mother always planned to move to Florida, although the trial court found neither to be true. Both parties were found to have substantial means to pay the cost of transportation between St. Louis and Florida and to have demonstrated the ability to cooperate with each other on visitation matters.

We have carefully reviewed the record and find that these findings are supported by substantial evidence and are not against the weight of the evidence. Although Father directs our attention to other evidence he claims supports contrary findings, such contentions misperceive the nature and scope of our review. In reviewing the sufficiency of the evidence, we view the evidence and reasonable inferences from the evidence in the light most favorable to the judgment and disregard all contrary evidence. T.B.G. v. C.A.G., 772 S.W.2d 653, 654 (Mo. banc 1989). We find no error in the trial court's application of the four factor test set forth in Riley.

In his other subpoint, Father claims the trial court erred in failing to consider the factors set forth in section 452.375.2 RSMo 1994 in determining what custodial arrangements are in the best interest of the child. In his second full point he makes a...