Newell v. Rammage

• Decision Date: 09 November 1999
• Citation: Newell v. Rammage, 7 S.W.3d 517 (Mo. App. 1999)
• Parties: (Mo.App. W.D. 1999) Bridget E. Newell, Respondent v. Lance Allen Rammage, Appellant WD56114
• Court: Missouri Court of Appeals

7 S.W.3d 517 (Mo.App. W.D. 1999)

Bridget E. Newell, Respondent v. Lance Allen Rammage, Appellant

WD56114

Missouri Court of Appeals Western District

11/09/99

Appeal From: Circuit Court of Platte County, Hon. Ward B. Stuckey

Counsel for Appellant: Craig D. Ritchie

Counsel for Respondent: Christopher T. Patterson

Opinion Summary: The father appeals from a judgment modifying a decree of joint legal and physical custody and granting the mother primary custody of their two children.

Court holds: Because no sufficient evidence was presented to show that it was in the best interest of the children to relocate to Chicago with the mother and her new husband, the granting of primary custody of the two children to the mother was improper.

Opinion Author: Harold L. Lowenstein, Judge

Opinion Vote: REVERSED AND REMANDED.Stith, P.J. and Riederer, JJ., concur.

Opinion:

Lance Rammage("Father") appeals from a judgment modifying a decree of joint legal and physical custody, granting Bridget Newell("Mother") primary custody of their two minor children, Amber, age seven, and Lance, Jr., age five.Father contends the trial court erred in granting Mother primary physical custody of the children; authorizing Mother to relocate with the children to Illinois to live with her new husband; increasing child support; and failing to grant Father additional, specific visitation.For the following reasons, the judgment of the trial court is reversed and remanded, for further findings regarding the best interests of the children.

FACTS

The facts in this case are almost free from dispute.Although never married, Father and Mother lived together from the time of the birth of their first child in July 1992, until their "separation" in October 1996.Paternity has never been an issue in this case.(Father was actually still legally married to a woman named Becky Collins, from whom he had been separated for ten years.)In November 1996, Mother and Father entered into a stipulation (pursuant to the Uniform Child Custody Jurisdiction Act, Section 452.440 - .550, RSMo 1994) providing for joint physical and legal custody.Father agreed to pay a total of $150.00 per month in child support to Mother.

In January 1997, the Circuit Court of Platte County entered an Order, which basically adopted the parties agreement -- Mother and Father were to have joint custody and control, with Father to pay $150.00 in child support per month.The parties operated under this agreement and Order until the time of the modification hearing in April 1998.The evidence showed that during this time, both parents were actively involved in the children's lives, and shared the time on a fairly equal basis.Both parents were cooperative and willing to deviate from the schedule when necessary to accommodate the other's needs.

Approximately two months after this couple's "separation,"Mother became engaged to Mr. Newell.They married in June of 1997.Their intention at that time was for Newell to leave his job in Chicago and find a job in the Kansas City area.Newell, a union carpenter, was making approximately $50,000 per year.The move to Kansas City would result in a pay cut for Newell, but "it was something [he] could live with."He was planning to sell his house and move once he finished some remodeling.Although Newell's family is in Chicago, Mother and Newell were planning to live in the Kansas City area so that the children could remain near Father and their friends, and because the children had grown up here.Mother's family in Chicago includes three brothers, a sister, and grandfather.Father was the only relative of the children in Kansas City.

In August 1997, Mother was laid off from her job, where she had been working since May.Mother's attempts to seek new employment were limited to a single visit to the unemployment office to check with Job Services, looking in the newspaper, and contacting a "head hunter."Mother has an associates degree and has had classes relating to both computers and airline ticketing.In addition, she has experience in customer service manager/sales and in bookkeeping.She worked at a Golden Corral Restaurant for two months, which was the only job for which she had made application.In October, Mother took a part-time consulting job, and no longer sought other jobs in the Kansas City area.This job, as an independent contractor for Chicago Lamp, allowed her to be in Chicago two weeks out of each month, and spend the other two in Kansas City with her children.The job would convert to a full time position at $32,000 per year, once Mother was able to do so.

Father works for Michelin Aircraft Tire Corporation, where he makes approximately $37,000 per year.Although Father has little formal education, having only attended school up to the seventh grade, he is trained and experienced in working with lasers, a very specialized skill.Father works as an Allographer Technician and does testing on aircraft tires and maintains a laser.He is also responsible for networking and maintaining computers.

Newell injured his rotator cuff, and was off work and collecting disability from September 1997 through January 1998.This, in addition to Mother's offer of full-time employment in Chicago, resulted in their decision to live in Chicago, rather than Kansas City.Further, Mother stated at trial that whether or not she was granted permission to remove the children from the state would not affect her decision to personally move to Chicago.When Father learned of Mother's plans to relocate to Chicago, he filed his motion to modify.A few days later, Mother filed a motion to modify and requested permission to move the children to Illinois.After discovering that Father had already filed his motion, Mother substituted her Answer and Cross-Motion, seeking primary physical custody and permission to remove the children from the state.

Father, at the time of the hearing, was in the process of obtaining a divorce from Becky Collins, and was engaged to Susan Szalawiga, who lived in Olathe, Kansas.They were to be married in July 1998.Szalawiga is a Clinical Coordinator in the Maternal Child Health Department, and is a registered nurse with experience in "well and newborn" and in an intensive care nursery.With her flexible schedule as Coordinator, she was able to work between taking her children to school every day and picking them up, and was able to finish her work at home.Szalawiga has two girls, the youngest is about Amber's age, and they play well together.The older daughter is very "mothering" toward Lance, Jr.After their marriage, and if the joint custody arrangement were kept in place, the couple had planned to set up their home in the Park Hill School District, closer to where Mother had lived.

The evidence was uncontroverted that the older child was involved in extracurricular activities such as Brownies and gymnastics as well as school and church activities in the Kansas City area.Further, Father, who cooperated with Mother, was involved in those activities and took the children to and from many of them.Mother said the oldest child, Amber, was doing fairly well in school, and was improving her grades with each quarter.The testimony from Mother was candid in that she readily acknowledged Father loved the children and had a strong relationship with them and it was in the best interest of the children to be with him fifty percent of the time.In her estimate, during the period that followed their agreement on division of the parenting, he had spent some 111 days with the children while she had them for 173 days.

Both sides readily admitted the other was a good, concerned parent.

The trial court, in its Judgment Modifying Custody, granted Mother primary physical custody¹, with both parents retaining joint legal custody; allowed Mother to relocate to Chicago; ordered Father to pay $815 per month in child support, which would abate during the summer months when Father has temporary physical custody; and granted Father specific periods of visitation.The visitation schedule provided that Father would have temporary custody/visitation during the summer, starting two weeks after school let out, and continuing until two weeks prior to the beginning of the following school year, with Mother to have one weekend of visitation/custody during that time.In addition, Father was granted visitation during the children's spring break vacation.The parents would alternate holiday visitation, as they had been doing according to the original Paternity Order.There was no mention in the judgment regarding who would be responsible for the travel expenses, which would be necessitated by visitation between cities.

STANDARD OF REVIEW

A showing that the circumstances of the child or the child's custodian has changed since the prior decree of custody, is required for modification of a prior decree.Jones v. Jones, 903 S.W.2d 277, 280(Mo. App.1995);Section 452.410, RSMo 1994.The burden of proving a change of circumstances sufficient to warrant a change of custody, is on the person seeking the change.Ijames v. Ijames, 909 S.W.2d 378, 380(Mo. App.1995).A trial court's order modifying child custody must be affirmed unless there is no substantial evidence to support it, it erroneously declares the law, or it erroneously applies the law.Murphy v. Carron, 536 S.W.2d 30, 32(Mo. banc 1976);Moore v. Moore, 849 S.W.2d 652(Mo. App.1993).In child custody matters, the trial court's determination must be given greater deference than in other cases.Aston v. Aston, 810 S.W.2d 720, 721(Mo. App.1991).The judgment is to be set aside as being against the weight of the evidence only if this court has a firm belief the judgment is wrong, and will affirm the judgment even if there is evidence which would support a different conclusion.Carter v. Schilb, 877 S.W.2d 665, 667(Mo. App.1994).The "paramount concern is, of course, the best interests of the...