McElroy v. McElroy, 66817

• Decision Date: 21 November 1995
• Docket Number: No. 66817,66817
• Parties: Jeffrey W. McELROY, Appellant, v. Mary M. McELROY, Respondent.
• Court: Missouri Court of Appeals

Page 798

910 S.W.2d 798

Jeffrey W. McELROY, Appellant, v. Mary M. McELROY, Respondent.

No. 66817.

Missouri Court of Appeals,

Eastern District,

Division Three.

Nov. 21, 1995.

Charles E. Bridges, Bridges & Nichols, St. Charles, for appellant.

Michael A. Turken, Cundiff, Turken & Londoff, St. Charles, for respondent.

GARY M. GAERTNER, Judge.

Appellant, Jeffrey W. McElroy ("father"), appeals the judgment of the Circuit Court of St. Charles County, denying his request to remove his minor children from the state, granting respondent's, Mary M. McElroy ("mother"), petition to transfer custody of the minor children to her, ordering father to pay $690.00 in monthly child support in addition to other sums, and granting father specific periods of visitation and custody. We affirm in part, and reverse and remand in part.

Mother and father were divorced on March 1, 1991. Two children were born during the marriage, J.M., born April 17, 1983, and G.M., born March 12, 1986. Pursuant to a stipulation entered into at the time of the dissolution, the parties were to share joint legal custody of the children, while father was to have primary physical custody. The agreement provided this placement would be subject to mother's right to "reasonable custody as the parties may agree." ¹ The agreement was silent as to payment of child support.

Father remarried in January, 1992. Shortly before the marriage, he considered starting his own business as Chris, his new wife, was employed and making $70,000 a year. However, upon returning from the honeymoon, he and Chris learned she had lost her job. Father put his plans on hold in order to maintain a steady income.

In March, 1992, father decided to leave his current job because the travel it required aggravated a serious sinus condition. Father testified he looked for employment in the St. Louis area but was unsuccessful. In early May, he found a job paying $42,000 a year in Fairfield, Iowa. Fairfield is approximately thirty miles from the Missouri border. Father decided he would commute to Fairfield beginning at the end of May. Meanwhile, Chris had found a temporary position in St. Louis. Her job did not become permanent, and in the second week of July, 1992, father moved the family to Kahoka, Missouri, a town fifteen miles from the Iowa border.

In May, 1992, mother filed her motion requesting the court grant her specified rights of visitation and temporary custody. After mother learned of father's and the children's move, she filed an amended motion requesting the court transfer custody of the children to her.

In August, 1992, father enrolled J.M. and G.M. in the Fairfield public school system. This required a fifty-mile commute for the children each way to and from school. In September, upon comments from the children's teachers on the effect of the long drive on J.M. and G.M., father decided to move the family to Fairfield. Although he rented a home in Fairfield and maintained his residence in Kahoka, Missouri, he effectively resided exclusively in Fairfield, Iowa, as of October, 1992. Father filed his motion for leave to remove the children from Missouri on September 4, 1992, but no hearing took place before the move. The hearing took place almost two years later, beginning on April 19, 1994.

Both J.M. and G.M. testified at trial. J.M. was eleven years old at the time of the trial. She testified that she would probably rather live with her mother than with her father, although she would miss her halfbrother (father's and Chris's baby), and would like to see him often. She stated she can confide in her mother while she does not feel she can with her father or his wife. Both J.M. and G.M. testified father questions them about the details of their stays with mother, and testified father has told them that if they live with mother they will have to live in an apartment and go to daycare so that they will hardly see her. G.M. was eight years old at the time of the trial. He testified he really wants to live with mother and always has. He also stated he feels comfortable with mother but not with father.

Mother offered the deposition of Dr. John Forhetz, a psychologist who interviewed the children twice with respect to the custody dispute. Dr. Forhetz stated that, although the children had "a sense of attachment to both parents," the children appeared to have a greater "connectedness" to mother that was missing with father. This connectedness manifested itself in the form of separation anxiety whenever the children left mother to return to father.

Father offered the testimony of Dr. Wells Hively, a psychologist who tested and conducted several interviews with the children, as well as with father and Chris. Dr. Hively testified that emotionally, both children are "anxious, inhibited, shy and fearful of having things lost in their lives." He stated both children "work very hard to be appropriate and proper and not to offend anyone in their lives, either their mother or their father." Furthermore, the children's "reservedness" had increased since the first time that he interviewed them, in August, 1992. Furthermore, with respect to G.M., Dr. Hively testified that he is very shy and inhibited, expressing a constant loneliness for his mother, and probably has "feelings of depression."

Both mother and father testified. Much of this testimony established the periods of visitation and custody exercised by mother after the divorce and up until the trial. The testimony reflected the difficulty the parties had in setting a custody schedule and revealed father's often recalcitrant attitude or reluctant cooperation.

At the end of the trial, the court denied father's petition to remove the children from Missouri and transferred custody from father to mother, finding this to be in the best interests of the children. While not making detailed findings of fact and conclusions of law, the trial court did note it found father's testimony to be not credible and further found father had interfered with mother's relationship with the children. The court established a visitation and custody schedule, and also ordered father to pay $690.00 in monthly child support, to pay seventy percent of child's medical expenses not covered by insurance, and to pay seventy percent of mother's work-related childcare costs. Father asserts four points on appeal; we will address each point in turn.

Our review is controlled by the standard set out in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We will affirm the judgment of the trial court if it is based on substantial evidence, not against the weight of the evidence, and not based on an erroneous interpretation or application of the law. Id. We set aside the judgment of the trial court only if we have a firm belief the judgment is wrong. Wild v. Holmes, 869 S.W.2d 917, 918 (Mo.App.E.D.1994). Furthermore, in child custody cases, great deference must be given to the trial court, even more so than in other cases. Basler v. Basler, 892 S.W.2d 749, 750 (Mo.App.E.D.1994).

Father first contends the trial court abused its discretion in denying his request to remove the minor children from Missouri. He relies on the apparent trend of the courts to allow such moves, as the courts recognize the need for flexibility in today's mobile society. See In re Marriage of Greene, 711 S.W.2d 557, 564 (Mo.App.S.D.1986). However, each case must be decided on its particular facts, and where the custody of a child is at issue, the child's welfare is the primary concern. Riley v. Riley, 904 S.W.2d 272, 275 (Mo.App.E.D.1995). Thus, we cannot say the trial court erred in denying father's motion.

The court considers four factors when determining whether removal of a minor is in the child's best interest. See Wild, 869 S.W.2d at 919; Michel v. Michel, 834 S.W.2d 773, 777 (Mo.App.S.D.1992). We apply those factors here.

First, the court examines the prospective advantages of the move in improving the quality of life for the children and the custodial parent. In this case, while we cannot say the quality of life improved, it certainly did not diminish. At school, the children performed at the same levels as they did before removal. J.M., who is consistently a straight-A student, was part of an accelerated program, in which she also had the opportunity to participate in St. Louis. G.M., an average student, was likewise performing at his ability. It appeared that, economically, the move may have been necessary. This would tend to maintain if not improve their economic situation. Therefore, the first factor weighs slightly in father's favor.

The second factor considered by the court is the integrity of the custodial parent's motives in relocating and whether one of them is primarily to defeat or frustrate visitation, and whether the custodial parent is likely to comply with substitute visitation orders. We find this factor weighs in favor of mother. Although father testified it was necessary for him to accept employment in Fairfield after an unsuccessful search of the St. Louis area, father was unable to give the names of these prospective employers, nor did he reply to mother's discovery requests for documents concerning this job hunt. Furthermore, the trial court specifically noted it did not find father's testimony credible. Lastly, the difficulty experienced by the parties in setting up visitation schedules after father moved the family, due largely in part to father's refusal to confirm dates ahead of time or to change them after they had been confirmed, defeats father's argument.

The third factor the court examines is the non-custodial parent's motive for opposing relocation and the extent to which it is to secure a financial advantage with respect to child support. The record does not support father's assertion that mother opposed removal of J.M. and G.M. in order to obtain a financial advantage. Neither parent was obligated to pay child support under the stipulation entered...