McIntire, v. Hake (Gerlt)

Decision Date10 October 2000
Citation33 S.W.3d 565
Parties(Mo.App. W.D. 2000) . In Re the Matter of Patience Irene McIntire, a Minor, Personally and by her Next Friend, Shawn A. McIntire, Shawn A. McIntire, Appellant, v. Jennifer Hake (Gerlt), Respondent. Case Number: WD57820 Missouri Court of Appeals Western District Handdown Date:
CourtMissouri Court of Appeals

Appeal From: Circuit Court of Morgan County, Hon. Patricia F. Scott

Counsel for Appellant: John W. Dennis, Jr., and Deborah J. Blakely

Counsel for Respondent: Brian K. Francka and Tobias A. Teeter

Opinion Summary:

Shawn McIntire appeals from the trial court's judgment modifying the custody order with respect to Patience McIntire, his minor child, by transferring primary physical custody of Patience to her mother, Jennifer Hake.

AFFIRMED.

Division IV holds: McIntire's relocation, his alleged failure to provide Hake with his new address and phone number, and one missed visitation weekend did not, by themselves, warrant a transfer of custody. The trial court properly considered the evidence of drug use, and there is no indication that the trial court gave it undue consideration. There was sufficient evidence for the trial court to find that McIntire 1) alienated Patience from Hake; 2) interfered with the relationship between Patience and Hake; and 3) failed to keep Hake informed about what was going on in Patience's life, thereby preventing her from participating in decision-making responsibilities concerning Patience. Furthermore, the trial court did not abuse its discretion in finding that a modification of custody was in Patience's best interests.

Opinion Author: Victor C. Howard, Judge

Opinion Vote: AFFIRMED. Spinden, C.J., and Holliger, J., concur.

Opinion:

Shawn A. McIntire appeals from the trial court's judgment modifying the custody order with respect to Patience McIntire, his minor child, by transferring primary physical custody of the child to her mother, Jennifer Hake. McIntire contends that the trial court erred in 1) modifying the custody decree based on his relocation to Independence, Missouri; 2) finding that he alienated Patience from Hake, interfered with Hake's visitation rights, and inhibited Hake's relationship with Patience; 3) holding that custody should be modified based on drug use by him and his wife; 4) finding that his failure to advise Hake of his address and phone number constituted a change in circumstances sufficient to modify custody; 5) finding that his failure to include Hake in decision-making responsibilities warranted a modification of custody; and 6) determining that a substantial change of circumstances sufficient to warrant a transfer of custody had occurred, and finding that the transfer of custody would be in Patience's best interests.

We affirm.

Facts

Patience Irene McIntire was born on September 26, 1993. Her parents, Shawn McIntire and Jennifer Hake, have never been married. At the time of Patience's birth, both McIntire and Hake lived with McIntire's parents in Versailles, Missouri. Hake eventually moved out of McIntire's parents' home. She now lives in Jefferson City, Missouri.

On June 7, 1996, McIntire filed a petition for determination of father-child relationship and order of child custody. On September 5, 1996, the trial court entered a judgment awarding McIntire and Hake joint legal custody of Patience, with McIntire being awarded primary physical custody.

On April 20, 1999, Hake filed an amended motion to modify seeking a transfer of legal and physical custody to her, alleging that a substantial and continuing change had occurred since the original custody order, in that 1) McIntire moved Patience to Kansas City without prior approval from her or the court; 2) McIntire failed to keep her informed as to Patience's activities, including school, daycare, church, and medical procedures; 3) McIntire failed to provide information concerning health insurance for Patience to her; 4) she was able and willing to care for Patience, and was capable of providing a stable and loving environment for Patience; and 5) she believed it was in the best interests of Patience to reside with her, subject to McIntire's right of visitation.

On July 28, 1999, the trial court entered its modified judgment, in which it found that a substantial and continuing change of circumstance warranted a modification of custody. The trial court found that the following changes warranted a modification of the original judgment: 1) McIntire has moved nearly 120 miles from Morgan County, Missouri to Independence, Jackson County, Missouri; 2) Since the original judgment, McIntire has alienated the minor child from Hake and has interfered with Hake's visitation rights; 3) McIntire has sought to inhibit the minor child's relationship with Hake; 4) McIntire has willfully refused to inform Hake of his address and phone number; 5) McIntire has failed to include Hake in the decision-making responsibilities of rearing the minor child; and 6) McIntire and his current wife have admittedly used illegal drugs, including marijuana, since the date of the judgment. The trial court did not modify the original joint legal custody arrangement, but transferred primary physical custody of Patience to Hake. This appeal follows.

Standard of Review

Our standard of review in a custody modification case is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Jones v. Jones, 10 S.W.3d 528, 532 (Mo.App. W.D. 1999). We will affirm the judgment of the trial court unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Id.

In assessing the sufficiency of the evidence, we examine the evidence and its inferences in the light most favorable to the trial court's order. We defer to the trial court's assessment of witnesses' credibility and accept the trial court's resolution of conflicting evidence. We presume that the trial court reviewed all evidence and based its decision on the child's best interests.

K.J.B. v. C.A.B., 883 S.W.2d 117, 121-22 (Mo.App. W.D. 1994) (citations omitted). "The trial court's determination in child custody proceedings is given greater deference than in any other type of case." Brandow v. Brandow, 18 S.W.3d 584, 587 (Mo.App. W.D. 2000).

Argument

Section 452.410.11 provides, in relevant part, as follows:

Except as provided in subsection 2 of this section, the court shall not modify a prior custody decree unless it has jurisdiction under the provisions of section 452.450 and it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child.

This court has previously stated that "[u]nder this subsection, before a court can change physical custody of a minor child as being in his or her best interests, it must first determine that there has been a substantial and continuing change of circumstances of the child or custodian." Haus-Gillespie v. Gillespie, 998 S.W.2d 842, 846 (Mo.App. W.D. 1999); see also Johnson v. Lewis, 12 S.W.3d 379, 383 (Mo.App. W.D. 2000); Landry v. Miller, 998 S.W.2d 837, 840 (Mo.App. W.D. 1999). This standard has also been set forth in the southern and eastern districts. See Tilley v. Tilley, 968 S.W.2d 208, 212 (Mo.App. S.D. 1998); Maher v. Maher, 951 S.W.2d 669, 672 (Mo.App. E.D. 1997). However, the southern district of this court, in In re C.N.H, 998 S.W.2d 553, 556-57 (Mo.App. S.D. 1999), recently stated that "a finding of a 'substantial and continuing change' in circumstances is not a prerequisite to the modification of custody decrees. The 'substantial and continuing change' language is part of section 452.370, which concerns a modification of support. 'That particular section . . . [is] not controlling on a modification [of] custody.'" (Citations omitted.) See also Searcy v. Seedorff, 8 S.W.3d 113, 117 (Mo. banc 2000) (stating that a change in circumstances warranting custody modification must be substantial, but not stating that it must be continuing).

In light of the language of section 452.410.1 and logical considerations,2 we find that a change in circumstances of the child or custodian warranting custody modification must be "substantial" or "significant," but it need not necessarily be continuing. To the extent that previous cases hold otherwise, they should no longer be followed in this district.3

Point I

McIntire's first point on appeal is that the trial court erred in modifying the custody decree based on McIntire's relocation to Independence, Missouri, because the modification is not supported by substantial evidence that the relocation interfered with Hake's visitation with Patience or that the move had any adverse effects on Patience or created an unstable lifestyle for her.

Following the original custody order, McIntire relocated with Patience to Independence, Missouri, in October 1996.4 A residential change of the custodial parent to a distant location away from the noncustodial parent does not by itself establish that modification of the prior custody decree is appropriate. Rice v. Shepard, 877 S.W.2d 229, 231 (Mo.App. W.D. 1994); see also McCubbin v. Taylor, 5 S.W.3d 202, 208 (Mo.App. W.D. 1999) (finding that mother's move with minor child from Jefferson City to Poplar Bluff, a distance of 250 miles, and subsequent single missed visitation weekend did not warrant change of custody where there was no evidence that the move affected the parties' ability to comply with the visitation schedule, or to discuss the child's needs and resolution of those needs as effectively as they could if both parents were present in the same city, nor that the move directly affected the welfare of the child by substantially disturbing the...

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