Marriage of Cornish, In re

• Decision Date: 13 June 1989
• Docket Number: No. 55431,55431
• Citation: 780 S.W.2d 62
• Parties: In re the MARRIAGE OF Joseph J. CORNISH, Appellant, and Karen A. Cornish, Respondent.
• Court: Missouri Court of Appeals

Page 62

780 S.W.2d 62

In re the MARRIAGE OF Joseph J. CORNISH, Appellant and Karen A. Cornish, Respondent.

No. 55431.

Missouri Court of Appeals,

Eastern District,

Division Three.

June 13, 1989.

Edward C. Vancil, Inc., Clayton, for appellant.

Mark R. Henry, Clayton, for respondent.

HAMILTON, Judge.

Respondent, Karen Cornish (hereafter "Mother"), initiated this action to modify the provisions of a dissolution decree in order to obtain the trial court's permission to move her minor children to the State of Wisconsin. Appellant, Joseph Cornish (hereafter "Father"), responded to Mother's motion by filing a motion to modify the dissolution decree to award him primary custody of the minor children. The trial court granted Mother's motion to modify and denied Father's motion. Father appeals. We affirm.

The dissolution decree, issued January 30, 1987, granted Mother primary care, custody, and control of the minor children, Justin, born May 2, 1980, and Lauren, born March 23, 1984. It granted visitation and temporary custody rights to Father and ordered him to pay child support.

In May, 1988, Mother filed a motion to modify the dissolution decree to permit her to move the minor children from St. Louis County Missouri to New Berlin, Wisconsin. A job transfer by Mother necessitated the move. Mother, an employee of Anheuser-Busch, Inc., testified that her new job would enhance her career and would allow her to spend more time with the children. Mother's former supervisor, a high-ranking employee of Anheuser-Busch, Inc., also testified to the increased opportunity for advancement offered by the new position.

Since the dissolution, the children have resided with Mother. At the hearing on the motion to modify, undisputed evidence established that both children were well-cared for, happy, and well-adjusted.

The trial court heard detailed testimony regarding the proposed new living environment of the two children. The new residence, located within walking distance of the local elementary school, provided more living space than the St. Louis residence as well as a large yard. It was situated in a residential area comparable to that of the former residence in St. Louis County. The area also offered excellent recreational opportunities.

At the time of trial, Father resided with his fiancee in a three-bedroom mobile home in Fenton, Missouri. Between the date of the dissolution and the hearing on the motions to modify, Father held three different jobs. Evidence adduced at hearing tended to show that Father had some problems with alcohol and with control of his temper.

Father and others testified that he had developed a loving relationship with his children and was interested in their upbringing and well-being. Evidence disclosed that Father exercised his right to visitation and temporary custody on a regular basis. Evidence further showed that Father's fiancee took an interest in the children and participated in a variety of activities with Father and the children.

Father asserts the trial court erred by (1) finding that the best interests of the children were served by allowing them to move to Wisconsin with Mother; (2) permitting Mother's former supervisor to testify as an expert on the promotion policies of Anheuser-Busch, Inc.; and (3) finding that the children's best interests were served by remaining in Mother's custody.

We must affirm the trial court's judgment if substantial evidence supports it, it is not against the weight of the evidence, and no error or misapplication of the law is apparent. In re Marriage of Turner, 764 S.W.2d 160, 161 (Mo.App.1989); Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

In his first point, Father contends that the trial court erred in determining that the best interests of the children were served by permitting them to move to Wisconsin with Mother. Where the custodial parent seeks to remove a child from the state for more than ninety days, he or she must obtain court permission unless the non-custodial parent consents to removal. Section 452.377, RSMo.1986. Moreover, a court may permit removal of a minor child from the jurisdiction when it clearly serves the best interests of the child. In re Marriage of Turner, 764 S.W.2d at 163.

Past custody of a child by the moving party and the need of the parent to move from the state are sufficient facts, if proved, to warrant permission to remove a child from the jurisdiction. Pender v. Pender, 598 S.W.2d 554, 556 (Mo.App.1980) (relying on Girvin v. Girvin, 471 S.W.2d 683, 683 (Mo.App.1971)). In the instant case, the trial court found that the mother had exercised custody and control of the children in an exemplary manner since the dissolution. In addition, the trial court found, based upon uncontroverted testimony, that the move to Wisconsin would benefit Mother professionally and would redound to the benefit of the children as well. Having been presented with evidence regarding the new environment of the children, the trial court determined it represented an improvement over the children's former environment.

In support of his position, Father relies heavily on Samuels v. Samuels, 713 S.W.2d 865 (Mo.App.1986). The facts of Samuels, however, are clearly distinguishable from those of the instant case. In Samuels, the mother sought to remove her two children from Missouri to New York where she had relatives and friends. She had no job in New York and planned to live with her married sister. The trial court denied the mother's removal request, concluding that her plan for subsistence in New York, in terms of employment and residence with her sister, was too speculative an experiment and, accordingly, not in the best interests of the children. In contrast, Mother herein has a good job in Wisconsin and improved housing for her children. Moreover, she introduced evidence of solid prospects for economic betterment.

Father argues that the children's move to Wisconsin will preclude him from exercising his rights of visitation and temporary custody to the extent he previously exercised them. He further asserts that Mother is moving primarily to prevent him from visiting his children. While Father is correct that he and other relatives may experience some difficulties in visiting the children due to the increased distance, visitation privileges of the noncustodial...