Michel v. Michel, 17751
| Decision Date | 12 June 1992 |
| Docket Number | No. 17751,17751 |
| Citation | 834 S.W.2d 773 |
| Parties | Martha Ann MICHEL, Petitioner-Appellant, v. Mark Christopher MICHEL, Respondent-Respondent. |
| Court | Missouri Court of Appeals |
C.H. Parsons, Jr., Joe Z. Satterfield, Parsons, Mitchell, Wilson & Satterfield, P.C., Dexter, for petitioner-appellant.
Stephen E. Walsh, Summers, Walsh, Pritchett and Blaich, P.C., Poplar Bluff, for respondent-respondent.
In dissolving the marriage of petitioner Martha Ann Michel (Wife) and respondent Mark Christopher Michel (Husband), the trial court took the following action. It placed primary custody of the two children with Wife, but denied her request to move them to Alabama. It granted Husband specific periods of temporary custody and reasonable visitation. It did not require Husband to provide health insurance coverage for the children. It awarded Wife $310.00 per month, per child, for child support. It distributed the marital property. In her appeal, Wife contends the trial court erred in each of those facets of the decree. The following is an outline of the basic facts. Additional evidence will be noted as necessary for the consideration of Wife's points on appeal.
At the time of their marriage on January 29, 1983, Husband was approximately 26 years of age. He had 275 college hours in various fields but no degree. Wife was approximately 24 years of age. She had an Associate Degree in Occupational Therapy. The parties met in Memphis, Tennessee where they had been employed. Husband had worked at Bock Pharmacal, but was a student when they met. Wife worked as an occupational therapist.
After the marriage the parties moved to Poplar Bluff, Husband's family home. He is employed in the Snap Shot one-hour photo business owned by his father. The father also owns and operates a drugstore. There are photo shops in Poplar Bluff, Cape Girardeau, Missouri and Murray, Kentucky. Husband is the general manager of the business. His salary is $1,000.00 each two weeks. He was paid a bonus of $8,251.00 for 1989 and $5,661.36 for 1990. The business was losing money in 1991. Husband did not expect a bonus for that year.
In Poplar Bluff, Wife was employed as an occupational therapy assistant. Her salary varied. In 1990 she earned $15,508.00. At the time of trial, she had temporary employment in her profession. She was paid $12.50 per hour.
The parties had two children. Anthony D. Michel was born on June 27, 1985. Matthew C. Michel was born on July 1, 1988. The parties separated in June 1990. Wife attributes the breakup of the marriage to the fact Husband was seldom at home, inattention to the family and his involvement with Melissa, the manager of the Poplar Bluff shop. Wife's testimony included the following.
"A. The boys and I had made cookies and Chris was working on a Sunday, and we decided we'd go down there and bring cookies. And I knocked on the door, we banged on the door, and he finally came--Five minutes I must have waited, and he came to the door. His shirt [had] mismatched buttons and Melissa followed him out, and their faces were flushed and they had a hard time speaking to me.
Q. Did you notice anything else about their appearance? Their hair.
A. Their hair was disarrayed."
Husband testified that his work demanded his time, he participated in the boys' activities and he became romantically involved with Melissa only after the separation. He did not deny or explain the cookie incident.
As stated, the decree of dissolution placed the two children in the primary custody of Wife and granted Husband temporary custody on alternate weekends from 6 p.m. Friday until 6 p.m. Sunday; on alternate Wednesday's after school or 5 p.m. to 8 a.m. Thursday morning; the last two full weeks of each June and the first two full weeks of each August; and for designated holiday periods. It further provided: "In addition, the Respondent shall be able to see the children at all other reasonable and proper times upon proper notice."
Wife's first point is that the trial court erred in refusing to allow her to change the residence of the minor children to the vicinity of Birmingham, Alabama. Her second point is that the trial court erred in awarding temporary custody of the parties' two minor children on alternate Wednesdays and visitation at all other reasonable times upon notice because such order effectively prevented Wife and the children from relocating within the state of Missouri. These two points are obviously interrelated. Each has to do with the restriction of the place of residence of Wife as a custodial parent.
Wife argues that her points have merit because of the following evidence. She wishes to obtain a bachelor of science degree as an occupational therapist. She had lived and her parents live in Birmingham, Alabama. She had been offered a job at a hospital in Birmingham as a certified occupational therapy assistant with a starting salary of $26,000.00 per year. She would also receive substantial fringe benefits, including medical and dental coverage for herself and the children for $87.00 per month. The hospital would cooperate in permitting the wife to attend the University of Alabama-Birmingham where she could obtain her desired degree. The cooperation also would include $1,000.00 per year toward her educational expenses. After obtaining her degree, she would be paid $36,000.00 per year.
She had arranged to rent a large apartment in an affluent suburb of Birmingham. The apartment complex has a swimming pool, playground and clubhouse for the children. She had made arrangements for Anthony to attend school and Matthew to attend preschool at a day care facility. Wife's parents live in that area. Her parents love the children and the children are affectionate with them. Her parents are willing and desire to assist Wife in caring for the children, when needed, and to help financially. She needs the additional degree and increased salary to be able to provide for the needs of the children, as she anticipates the Husband may be unable to do so. Since the separation the husband paid child support only when and as ordered by the court. She cites evidence of Husband's financial irresponsibility including the following. He purchased on credit a used Rolex wrist watch for $6,000.00. He purchased a one-third interest in a boat and motor for $4,000.00. She also points out that she can obtain the desired degree in Missouri only in Columbia or St. Louis. To her knowledge, the only available employment as an occupational therapist assistant in Missouri, paying $26,000.00 per year, is in Kansas City. From Poplar Bluff it is 380 miles to Birmingham and 360 miles to Kansas City. She argues the decree, in effect, improperly limits her place of residence to Poplar Bluff.
Husband counters by emphasizing the following evidence. His father and mother live in Poplar Bluff. They love and have a close relationship with the children. He has two brothers who also live in Poplar Bluff. One of the brothers has two daughters, ages 14 and 10. The Michel family, including the children, is a close-knit group and engage in many family activities. The parties' children are active in Church and Sunday school in Poplar Bluff. They engage in sports activities such as soccer and swimming teams. Since the separation, the children have adjusted to the custodial arrangements and frequent visitation with their father. He argues that to move the children 380 miles from the community they have known all their lives would be emotionally traumatic. His testimony included the following:
It is trite to observe the place of residence of a custodial parent is an important consideration in determining "custody in accordance with the best interests of the child". § 452.375. That importance is implicitly recognized in the following statutory factors:
"(3) The interaction and interrelationship of the child with his parents, his siblings, and any other person who may significantly affect the child's best interests;
(4) The child's adjustment to his home, school, and community;
. . . . .
(6) The needs of a child for a continuing relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child;". § 452.375.
However, these are not the only factors to be considered. The courts are enjoined to consider "all relevant factors". § 452.375. It is impossible to enumerate or categorize all of the nonstatutory factors relating to the place of residence of a custodial parent. The consideration of the relevant factors certainly include a comparison of the geographical, material and social aspects of the alternative places of residence. More importantly, it must include a comparison of all aspects of the alternative custody offered by each parent.
A statute provides that a custodial parent shall not change the residence of a child to another state or remove a child from this state for a period of time exceeding ninety days except upon order of the court or with the written consent of the parties with custody or visitation rights. § 452.377. Violation of a court order under that section may be considered a change of circumstance under § 452.410. A separate statute provides that if either parent of the child changes his residence to another state, such a change of residence shall be considered a change of circumstances under § 452.410. § 452.411.
However, it is established that the right of a custodial parent to...
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