Melton v. Collins

• Citation: 134 S.W.3d 749
• Decision Date: 20 May 2004
• Docket Number: No. 25340.,25340.
• Parties: Robin MELTON, Respondent, v. Catherine COLLINS, et al., Appellant.
• Court: Court of Appeal of Missouri (US)

134 S.W.3d 749

Robin MELTON, Respondent, v. Catherine COLLINS, et al., Appellant.

No. 25340.

Missouri Court of Appeals, Southern District, Division I.

May 20, 2004.

Elizabeth H. Chastain, Wilson & Chastain, L.C., Cape Girardeau, MO, for Appellant.

Lew Polivick, Legal Services Of Southern Missouri, Charleston, MO, for Respondent.

ROBERT S. BARNEY, Presiding Judge.

Appellant Catherine Collins ("Mother") appeals from the judgment of the Circuit Court of Stoddard County modifying the court's judgment of custody by changing the primary physical custody of her son, Ethan Cole Melton, from her to his father, Respondent Robin Melton ("Father").

Father and Mother have one minor child together, Ethan, born November 12, 1992. The parties were never married, but they lived together for a period of time after Ethan was born. On September 21, 1998, the Circuit Court of Stoddard County entered a paternity judgment establishing that a father-child relationship existed between Father and Ethan and granting Mother and Father joint legal custody of Ethan. Mother was accorded the primary physical custody of Ethan. The judgment also provided that Father have periods of visitation with Ethan, pay Mother $400 per month in child support, and maintain certain health insurance for Ethan.

In February 2001, Mother decided to remove Ethan from the Puxico Public Schools because she did not feel it was in his best interest to attend school there; however, she never discussed this decision with Father. At this time, Mother also made plans to relocate to Cape Girardeau, approximately 50 miles from Puxico. Mother sent Father a certified letter dated February 16, 2001, informing him that she and Ethan were already living in Cape Girardeau. The letter read, in pertinent part:

This is to inform you that Ethan Melton, and I Cathy Collins, are currently residing in Cape Girardeau Mo

You may pick up Ethan at the following address

1514 Scott St.

Cape Girardeau

Visitation will be exercised as stated in the Robin Melton v. Cathy Collins settlement agreement case # CV498-75R as follows

Weekend—Every other weekend

Weekday— If the parents lives in the same county, one evening each week from 6:00 pm on Wednesday until 6:00 pm on Thursday.

/s/ Cathy Collins

(All errors in original.) Despite the contents of the foregoing letter, Mother continued to maintain her apartment in Puxico. Mother admitted at trial that she moved back to Puxico no later than June 2001 and remained there until August 2001.

Shortly after sending the letter, Mother commenced to home school Ethan. She filed her declaration of withdrawal of Ethan with the Puxico Public Schools by letter dated February 20, 2001. She also filed a declaration of home schooling, dated February 21, 2001, with the Stoddard County Recorder of Deeds Office, all pursuant to section 167.042.¹ The Juvenile Office received a copy of the declaration of home schooling on February 23, 2001.

Then, on August 29, 2001, Mother sent Father another certified letter, which read:

This is to inform you, Ethan is living in Cape Girardeau

Our temporary address is

1514 Scott St.

Cape Girardeau MO

63701

You may pick him up for visitation at the address above You will be informed of our perminit address as soon as possible

/s/ Cathy Collins

(All errors in original.) When this letter was sent, Mother had completely moved out of her apartment in Puxico and was living with her mother in Cape Girardeau. Mother continued home schooling Ethan.

On December 11, 2001, Father filed a motion to modify custody and requested that he be awarded primary physical custody of Ethan. Mother filed a motion to dismiss and a motion for contempt for Father's failure to maintain health insurance for Ethan and failure to pay child support. On its own motion, the trial court appointed a guardian ad litem.

The trial court entered a final "Judgment of Modification" on November 19, 2002, having made extensive findings of facts and conclusions of law. The trial court found, inter alia, that Mother had failed to provide Father with the notice required by section 452.377.2 prior to her relocation to Cape Girardeau. The trial court further found that Mother's conduct regarding the unauthorized relocation was "irresponsible parenting, unfair to [Father]," and in violation of the statute.

The trial court also found that, while a parent has a statutory right to home school a child, Mother's "past actions fully disregard[ed] and circumvent[ed] [Father's] rights ... to participate in education decisions regarding the minor child." Specifically, the trial court found that Mother "in no way attempted to discuss the home schooling of Ethan with [Father] prior to beginning same and has failed to keep [Father] updated on Ethan's educational status or progress."

Finding there had been "substantial and continuing changes in the circumstances of Ethan and [Mother] since the entry of the [paternity judgment]," the trial court concluded the best interests of Ethan required a modification of that judgment. The trial court denied Mother's motion for contempt, finding that Father had been laid off from his job and was unable to pay the full child support amount, but found Father liable for the child support arrearage. The trial court also awarded Father and Mother joint physical and legal custody of Ethan, gave primary physical custody to Father, and granted periods of custody and visitation to Mother. This appeal followed.

Mother's first point on appeal alleges the trial court erred in finding that Mother's relocation was unauthorized and was not in the best interests of Ethan. She maintains that because she complied with the provisions of non-court-ordered relocation, pursuant to section 452.377, her relocation could not have constituted a substantial change in circumstances justifying a modification of the paternity judgment.

In her second point, Mother avers the trial court erred in entering a judgment of modification of custody when it changed the primary custody of Ethan from Mother to Father. She maintains the trial court's determination was not supported by substantial evidence and was based on an erroneous declaration and application of the law. She asserts that under section 452.377 she was permitted to relocate to Cape Girardeau and that her home schooling of Ethan comported with the requirements of state law; hence, any disagreement as to home schooling did not require a change of custody to address the issue.² Because the points are interrelated, we will address the points together.

"Our review of a court-tried case involving matters of custody is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976)." Baxley v. Jarred, 91 S.W.3d 192, 196 (Mo.App.2002). "We will affirm the judgment so long as it is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law." Id.

In assessing the sufficiency of the evidence in a case modifying custody, the court of appeals will examine the evidence and its inferences in the light most favorable to the trial court's order, and defer to the trial court's assessment of the witnesses' credibility and accept the trial court's resolution of conflicting evidence, and presume that the trial court reviewed all of the evidence and based its decision on the child's best interest.

Smith v. Smith, 75 S.W.3d 815, 819 (Mo. App.2002); see also § 452.410.1. We presume the trial court acts in the best interests of the child. In re S.E.P. v. Petry, 35 S.W.3d 862, 867 (Mo.App.2001).

To modify an award of custody, the court must find "upon the basis of facts that have arisen since 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."

Love v. Love, 75 S.W.3d 747, 762 (Mo.App. 2002) (alteration in original) (quoting § 452.410.1); see also § 452.410.1. "Thus, the court's determination is two-fold. It must first find that a substantial change of circumstances has occurred and, once it does, it must then find that the best interests of the child would be served by modifying custody." Love, 75 S.W.3d at 762. We recognize that, in matters of child custody, we are to pay deference to the trial court's discretion. Cutting v. Cutting, 39 S.W.3d 540, 542 (Mo.App.2001).

Mother maintains that she provided Father with the appropriate notices as required by section 452.377 and that Father's failure to file a timely objection resulted in a "permissible non-court-ordered relocation." Further, Mother argues that, as the relocation ultimately was not in violation of any statute, it could not constitute a substantial change in circumstances justifying a modification of custody.

"Section 452.377 governs the `relocation of children' in this state." Herigon v. Herigon, 121 S.W.3d 562, 565 (Mo.App.2003). "Relocation" is defined as "a change in the principal residence of a child for a period of ninety days or more, but does not include a temporary absence from the principal residence." § 452.377.1. Section 452.377.2 requires a parent who desires to relocate to give written notice to the other parent of the proposed relocation. Additionally, section 452.377.2 mandates that the notice:

[S]hall be given in writing by certified mail, return receipt requested, to any party with custody or visitation rights... at least sixty days in advance of the proposed relocation [and] ... shall include the following information:

(1) The intended new residence, including the specific address and mailing address, if known, and if not known, the city;

(2) The home telephone number of the new residence, if known;

(3) The date of the intended move or proposed relocation;

(4) A brief statement of the specific reasons for the proposed relocation of a child, if applicable; and

(5) A proposal for a revised schedule of custody or visitation with the child, if...