Marriage of Daneshfar, In re

• Citation: 953 S.W.2d 95
• Decision Date: 22 August 1997
• Docket Number: 21274,Nos. 21258,s. 21258
• Parties: In re the MARRIAGE OF Zhitana Roxanna DANESHFAR and Michael Robert Sly. Zhitana Roxanna DANESHFAR, Petitioner-Respondent, v. Michael Robert SLY, Respondent-Appellant.
• Court: Court of Appeal of Missouri (US)

Page 95

953 S.W.2d 95

In re the MARRIAGE OF Zhitana Roxanna DANESHFAR and Michael Robert Sly Zhitana Roxanna DANESHFAR, Petitioner-Respondent, v. Michael Robert SLY, Respondent-Appellant.

Nos. 21258, 21274.

Missouri Court of Appeals,

Southern District,

Division One.

Aug. 22, 1997.

Randall J. Reichard, Craig F. Lowther, Lowther, Johnson, Joyner, Lowther, Springfield, for Respondent-Appellant.

J. Kaye Irwin, Guardian Ad Litem, Theodore Von Willer, Jr., Springfield, for Petitioner-Respondent.

Before BARNEY, P.J., and PREWITT and GARRISON, JJ.

PER CURIAM.

Michael Robert Sly (Father) appeals from a judgment entered on his amended motion to modify a dissolution decree, and on Zhitana Roxanna Daneshfar's (Mother) motion, as custodial parent, to move with their child from Missouri. He contends that the trial court erred in permitting Mother to move the child to Louisiana; in not permitting two psychologists to testify; and in denying him custody on his motion to modify.

In the decree dissolving their marriage, entered in September, 1989, the trial court awarded Mother custody of their only child, born on February 17, 1989, and granted Father reasonable visitation rights. That decree was subsequently modified in May, 1994, establishing a more definitive schedule for Father's visitation rights.

On September 7, 1995, Mother filed a motion requesting permission to move the residence of the child to Louisiana. Father was served with the motion on September 11, 1995, and the trial court took it up on September 26, 1995. Father did not appear, and the court sustained it. The trial court subsequently set aside that order on its own motion because it was entered prior to the expiration of thirty days after Father was served with the motion.

Even though Mother knew the court had set aside its order granting her permission to leave Missouri, she nevertheless moved with the child to Lafayette, Louisiana, on November 6, 1995. Father filed a motion to modify and a motion for temporary custody. He subsequently filed an amended motion to modify requesting primary physical custody of the child.

Mother's motion and Father's amended motion to modify were heard together on September 10 and 11, 1996. At the close of the evidence, the child's guardian ad litem (GAL) recommended that primary custody be transferred to Father. The trial court's judgment, however, inter alia, sustained Mother's motion to move with the child to Louisiana, and denied Father's request for primary custody. Both Father and the GAL filed notices of appeal. Those appeals were consolidated by this court, and Father and GAL filed a joint brief. ¹

The scope of appellate review in a court tried case is pursuant to Rule 73.01(c), as construed in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). The judgment of the trial court will be sustained unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Murphy, 536 S.W.2d at 32. Due regard is to be given to the opportunity of the trial court to have judged the credibility of witnesses. Rule 73.01(c)(2). We accept as true the evidence and inferences favorable to the result reached by the trial court and disregard contrary evidence, mindful that the trial court was free to believe or disbelieve all, part or none of the testimony of any witness. T.B.G. v. C.A.G., 772 S.W.2d 653, 654 (Mo. banc 1989). We are also mindful of the familiar axiom that where, as here, no party requests findings of fact and the trial court makes none, all fact issues shall be considered as having been found in accordance with the result reached. Rule 73.01(a)(3); In re Marriage of Fry, 827 S.W.2d 772, 773 (Mo.App. S.D.1992).

In his first point, Father contends that the trial court's judgment sustaining Mother's motion for permission to remove the child from Missouri was against the weight of the evidence and constituted a misapplication of law. In her motion, Mother alleged that she had an employment opportunity in Louisiana which would increase her income, eliminate her exposure to hazardous chemicals, decrease the number of hours she was required to work (thereby increasing the time she had to spend with the child), increase the child's opportunity to have contact with relatives living in Louisiana, and that she had a home available to her there which was equal to or better than the one she had in Missouri. She also alleged that although the move would require an alteration of Father's weekend visitation schedule, his temporary custody during the summer months and holidays could be expanded, which would result in an increase in the amount of time he could spend with the child.

The evidence indicated that Mother, who has a degree in chemistry, was employed in a laboratory in Springfield. Sometime prior to August 28, 1995, she accepted a job offer from her brother, a physician in Lafayette, Louisiana which increased her annual income from $19,000 to $24,000. She did not, however, look for other employment in Springfield before accepting the job in Louisiana. On August 28, 1995, Mother placed her Springfield home on the market, and at about the same time quit her job at the lab, where she said that she was exposed to harmful chemicals. On September 7, 1995 she filed her motion with the court requesting permission to move the child to Louisiana, and as indicated, the court sustained that motion on September 26, 1995. Mother learned, however, before actually moving to Louisiana that the order granting permission to move from the state had been withdrawn. She testified that by the time she learned that, she had already accepted the job in Louisiana, and no longer had a job in Springfield. She then decided to move to Louisiana, and did so on November 6, 1995 because, according to her, she was "stuck."

In support of his contention that the trial court erred in permitting Mother to move the child to Louisiana, Father argues that she moved the child prior to the judgment, in violation of § 452.377; ² the move has unreasonably inhibited his visitation; Mother has a history of denying him meaningful contact with the child; the child has more relatives in Missouri than Louisiana; the GAL recommended that the child remain in Missouri in his custody; and Mother made no attempt to find other employment in Springfield.

Father cites O'Leary v. Stevenson, 782 S.W.2d 109, 111 (Mo.App. W.D.1989), for the proposition that Missouri courts view the removal of children from this state with "marked displeasure." That case also contains language indicating that the best interests of a child are best served by continued relationships with both parents, and that as a general premise permission to remove a child from this state is denied if the practical consequence is to deny the child reasonable opportunity for contact with the other parent. Id.

The paramount concern in deciding requests to move a child from this state is the best interests of the child. Carter v. Schilb, 877 S.W.2d 665, 667 (Mo.App. W.D.1994). In Michel v. Michel, 834 S.W.2d 773 (Mo.App. S.D.1992), this court reversed the trial court's denial of permission for a mother to move with a minor children to Alabama. In doing so it recognized four factors which are particularly relevant in determining the propriety of relocation by a custodial parent:

1. The prospective advantages 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 (whether primarily to defeat or frustrate visitation and whether the custodial parent is likely to comply with substitute visitation orders) 3. The integrity of the noncustodial 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,

4. The realistic opportunity for visitation which can provide an adequate basis for preserving and fostering the noncustodial parent's relationship with the child if relocation is permitted.

Id. at 777. In applying those factors, the Michel court also noted that "in our highly mobile society it would be unrealistic to inflexibly confine a custodial parent to a fixed geographical area if removal to another jurisdiction was consistent with the best interests of the minor child." Id. (quoting from In re Marriage of Bard, 603 S.W.2d 108, 109 (Mo.App. W.D.1980)).

Provisions to insure a relationship with both parents can be made without confining the residence of the custodial parent. Kline v. Kline, 686 S.W.2d 13, 17 (Mo.App. W.D.1984). Moving a child to another state may be permitted, even though visitation may be made more difficult. In re Marriage of Cornish, 780 S.W.2d 62, 65 (Mo.App. E.D.1989). "[W]here the custodial parent, who has exercised the right of custody and control in a manner conducive to the welfare and development of the [child], demonstrates a need to move from the state in order to achieve employment and financial betterment which will subserve the best interest of the [child], judicial permission to remove the [child] is warranted." Flaton v. Flaton, 777 S.W.2d 948, 950 (Mo.App. E.D.1989).

In the instant case, the trial court, in orally announcing its decision, noted its displeasure with the fact that Mother took the child out of state without authority from the court. It concluded, however, that there was a reasonable basis for her to want to move to Louisiana and to take different employment which provided better pay, hours and benefits, and which was better for her health. In reaching that conclusion, the court said that it considered all of the factors, including the fact that the trial court had originally authorized the move, and the fact that we now live in a mobile society.

Significantly, the trial court also made other orders. Father's previous visitation schedule included alternating...