McCubbin v. Taylor

• Decision Date: 16 November 1999
• Citation: 5 S.W.3d 202
• Parties: (Mo.App. W.D. 1999) Kenneth Norman McCubbin, Respondent, v. Kim M. Taylor, Appellant WD56572 and WD56939 Handdown Date:
• Court: Missouri Court of Appeals

5 S.W.3d 202 (Mo.App. W.D. 1999)

Kenneth Norman McCubbin, Respondent, v. Kim M. Taylor, Appellant

WD56572 and WD56939

Missouri Court of Appeals Western District

Handdown Date: 11/16/99

Appeal From: Circuit Court of Cole County, Hon. Thomas Joseph Brown, III

Counsel for Appellant: Curtis G. Hanrahan

Counsel for Respondent: Daniel Richard Green

Opinion Summary: Kim M. Taylor (Mother) appeals the trial court's judgment of contempt and modification of child custody based upon her sua sponte intrastate relocation with the child from the city where the natural father resided to another city to obtain full-time employment opportunities. She contends that the trial court erred in modifying custody because neither a substantial and continuing change in the circumstances of the child or the child's custodian was demonstrated, nor was sufficient evidence offered to support the trial court's finding that the transfer was in the best interest of the child. She also contends that the trial court erred in holding her in civil contempt for failing to move back to the city where the natural father resided.

Division Two holds: (1) Where a consent administrative order for child support entered pursuant to section 454.485, RSMo 1994, was docketed with the circuit court clerk and had all the "force, effect, and attributes" of a circuit court order under section 454.490, RSMo 1994, the trial court did not lack subject matter jurisdiction to enter a judgment of contempt or judgment of modification of child custody.

(2) Where insufficient evidence existed to support the trial court's finding that Mother's intrastate move, by itself, constituted a substantial change of circumstances, the trial court erred in modifying the prior custody judgment. Where the trial court's finding that transfer of custody from the parent with whom the child had resided her entire life of eight years to the child's natural father was in the child's best interest conflicted with a clear preponderance of the evidence, the trial court erred in modifying the prior custody judgment.

(3) Where Mother was not specifically prohibited by any court order or statute effective at the time of her relocation from moving to another part of the state with the child, the trial court erred in holding Mother in contempt for relocating with the child and not reestablishing her residence in the city where the Father resided.

Spinden, P.J. and Lowenstein, J., concur

Robert G. Ulrich

Kim M. Taylor appeals the trial court's judgment of contempt for her failure to move the minor child born to the parties from Poplar Bluff back to Jefferson City, the city where the natural father, Kenneth McCubbin, resides. In this consolidated appeal, Ms. Taylor also appeals the trial court's judgment of modification permanently transferring primary physical custody of her minor child to the natural father based upon her sua sponte intrastate relocation. The trial court's judgment of contempt and judgment of modification of child custody are reversed.

Background

Kim M. Taylor ("Mother") and Kenneth Norman McCubbin ("Father") are the natural parents of a child born July 9, 1990. They never married and prior to August 1998 both resided in Jefferson City. On or about April 14, 1993, Father acknowledged paternity of the minor child born to Mother and agreed to pay child support for the child under an Administrative Consent Order. Thereafter, in 1995, Father filed a motion seeking joint custody and visitation with the minor child. The trial court awarded joint legal custody to both Father and Mother with Mother to have primary physical custody. A visitation schedule was mandated, child support to be paid by Father was increased, and Father was ordered to provide health insurance for the child.

Mother petitioned the court for permission to remove the child from the State of Missouri on March 20, 1998, to which Father objected, and filed a counter-motion for contempt. After a hearing on both motions, the parties withdrew their respective motions.

Subsequently, Mother mailed notification to Father that she and the minor child would be relocating to Poplar Bluff, Missouri, on August 18, 1998. Three days after her relocation, Mother and Father attempted a meeting at a half-way point between Poplar Bluff and Jefferson City in Potosi to permit Father's exercise of the next scheduled visitation. Although both parties testified to their respective efforts to meet and transfer physical custody of the child to permit Father's exercise of his visitation rights, visitation between child and father did not occur. Three days after the missed visitation, on August 24, 1998, Father filed an application with the trial court for an order for Mother to show cause why she should not be held in contempt of court for denial of Father's joint custody and visitation rights by Mother's sua sponte move to Poplar Bluff. In addition to the application for the show cause order, Father also filed a motion to modify the amended judgment entry seeking physical custody of the minor child, child support, and attorney's fees.

The trial court issued its order directing Mother to appear and show cause why she should not be held in contempt of court for "failing and refusing to grant Petitioner his rights of joint custody and visitation." At the show cause hearing, Mother testified that prior to August 15, 1998, she was employed at Wal-Mart in Jefferson City as a part-time employee. In August, she was offered a position and transfer to the Poplar Bluff Wal-Mart store at full-time wages and benefits. Father testified that he was denied visitation on the single occasion of August 21, 1998, three days after Mother's move to Poplar Bluff, but he testified to no other specific denial of visitation except a previous Christmas visit. Father acknowledged that he had not taken his allotted two-week summer visitation for the past three summers due to his busy work schedule. He also acknowledged that his complaint about denial of joint custody and visitation rights accrued subsequent to Mother's move to Poplar Bluff.

After the show cause hearing, the trial court entered an order on September 16, 1998, transferring physical custody of the minor child, but staying execution of the order for thirty days to enable Mother to move back to Jefferson City. When Mother failed to move back to Jefferson City, the trial court issued its final judgment of contempt on October 22, 1998, lifting the previously entered stay and ordered the following sanctions:

[a]s sanctions for her contempt, this Court orders physical custody of the minor child, . . . ., transferred to Petitioner, subject to the Respondent's rights of reasonable visitation, until such time as Respondent purges herself of contempt by re-locating to Jefferson City, Mo. The court further finds that such transfer is in the best interest of the child.

Thereafter, a hearing was held on the motion to modify custody filed by Father, and the trial court issued its judgment of modification, removing the child from the physical custody of Mother and placing the child in the permanent physical custody of Father. In the judgment entry entered on February 18, 1999, the trial court set forth the following rationale for modifying custody: "Taylor has willfully and contemptuously denied Petitioner his rights of Joint Legal Custody as to the minor child, . . . and denied Petitioner regular and meaningful contact with the minor child by sua sponte moving the minor child from her former residence in Jefferson City, Missouri, which is also the city in which Petitioner resides." This appeal followed.

Standard of Review

The standard of review is stated in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The trial court will be affirmed unless it misstates the law, misapplies the law, substantial evidence does not support the judgment, or the judgment is against the weight of the evidence. Id. However, greater deference is accorded to the determination of a trial court on custody matters than in other cases. Mills v. Mills, 939 S.W.2d 72, 75 (Mo.App.W.D. 1997).

Trial Court Jurisdiction

Mother contends that the trial court lacked subject matter jurisdiction to enter either the judgment of contempt against her or to transfer custody of the child because the trial court cannot modify a consent administrative order for child support entered by the Director of the Division of Child Support Enforcement. This consent administrative order was entered pursuant to section 454.485,¹ which permits the Director of the Division of Child Support Enforcement to "enter an order establishing paternity of a child in the course of a support proceeding." Mother argues that because the statute authorizing the administrative order only authorizes orders for child support, the court did not have subject matter jurisdiction to make the custody and visitation determinations requested by Father's original motion for joint custody and visitation.

Section 454.490.1, RSMo Cum. Supp. 1998 provides that:

A true copy of any order entered by the director pursuant to sections 454.460 to 454.997, . . . may be filed with the clerk of the circuit court in the county in which the judgment of . . . paternity has been entered, or if no such judgment was entered, in the county where either the parent or the dependant child resides or where the support order was filed. Upon filing, the clerk shall enter the order in the judgment docket. Upon docketing, the order shall have all the force, effect, and attributes of a docketed order or decree of the circuit court, . . . .

As the administrative order for child support has all the "force, effect, and attributes" of a circuit court order, the trial court had subject matter jurisdiction to modify the administrative order, as the administrative order effectively became the court's order upon being docketed with the trial court. In this case, the Director of the Division of Child...