Ratteree v. Will

• Decision Date: 03 June 2008
• Docket Number: No. ED 90269.,ED 90269.
• Citation: 258 S.W.3d 864
• Parties: Steven Michael RATTEREE, Appellant, v. Donna Jean WILL, Respondent.
• Court: Missouri Court of Appeals

258 S.W.3d 864

Steven Michael RATTEREE, Appellant, v. Donna Jean WILL, Respondent.

No. ED 90269.

Missouri Court of Appeals, Eastern District, Division One.

June 3, 2008.

Motion for Rehearing and/or Transfer to Supreme Court Denied July 15, 2008.

Application for Transfer Denied August 26, 2008.

Theodore S. Schechter, Anne E. Lageson, Clayton, MO, for appellant.

Robin L. Kaiser, Maia Brodie, Keefe & Brodie, Clayton, MO, for respondent.

KENNETH M. ROMINES, Judge.

Introduction

Steven Ratteree appeals the trial court's decision to allow Donna Will to relocate the couple's child from St. Louis to San Francisco. Because the trial court's judgment is supported by substantial evidence and is not against the weight of the evidence, we affirm.¹

Factual and Procedural Background

Prior to this action, Donna Jean Will ("Mother") and Steven Ratteree ("Father") both lived in St. Louis. They shared joint physical and legal custody of their five-year-old son, Grant, per a custody order entered in a December 2005 paternity case. That judgment designated Mother as the residential parent and provided for approximately equal visitation between the two parents. In September 2006, Mother sought court permission to relocate with Grant, citing "an involuntary job transfer" that would require her to move to San Francisco. Father opposed the request, and the court held a trial in April 2007.

Mother worked for Administaff as a mid-market sales representative in its St. Louis office. When Administaff eliminated the mid-market position, the company offered Mother a sales management position in San Francisco because of her experience and success at lower-level positions. The company's Vice President of Sales, Marty Scirratt, testified that no St. Louis positions remained for someone with Mother's qualifications. Although it would be possible for Mother to work for Administaff in St. Louis as a sales representative, said Scirratt, that position would be a demotion for her.

Father countered with the testimony of vocational expert, David Gibson, who, after searching for available St. Louis sales positions, found several opportunities. In fact, Mother had applied to one of those companies, but received no response. Furthermore, Mr. Gibson was not aware that Mother had not completed high school and had only a GED. He was not aware whether these positions would accept someone with that level of education, but he opined that it was her experience that mattered. After hearing this evidence, the court concluded that Mother's job transfer was involuntary and that she must move to San Francisco in order to perform her job duties.

Mother testified that she had located a school, doctor, and activities for Grant similar to those he had in St. Louis. She described the neighborhood in which Grant would be living with Mother and with her fiancé. She also testified that her sister lived in San Francisco. Grant had no other family in San Francisco. Grant's grandparents and great-grandparents lived in St. Louis, along with some of his aunts, uncles, and cousins. Finally, Father's current wife and his two older daughters both lived in St. Louis and had relationships with Grant.

The trial court then addressed Father's relationship with Grant. The court found that from Spring 2005 to October 2006, Father resided at his wife's house. Then Father sporadically stayed in hotels, finally moving into Clayton on the Park. The trial court found that Father's other children did not live with him during that time. The court concluded that Father lacks a stable household and home environment. Further, during 2005, Father exercised less than half his time with Grant. Beginning in January of 2006, which is the same month Mother told Father that she was engaged, he began exercising full visitation. The court also found that Father routinely ate out with Grant, up to two times per day when Grant was with Father. Grant's babysitter, Janice Fainer, also testified that Mother provided the clothes and food for Grant in a bag when she would drop him off, and Father would return Grant with the bag full of dirty clothes. Finally, after hearing much testimony regarding Father's financial status, the court was unable to determine Father's income, if any, and the nature and extent of his business. The court concluded that Father lacked financial responsibility.

Ultimately the court entered a judgment allowing Mother to relocate with Grant and modifying custody and visitation. Father appeals, raising five points: 1) That the trial court erred in finding Mother sought to relocate in good faith; 2) that the trial court erred in finding that relocation was in the child's best interests; 3) that the trial court erred in allowing evidence of Father's prior business dealings; 4) that the parenting plan the trial court entered does not comply with § 452.377.10²; and 5) that the trial court failed to make certain findings of fact in violation of Rule 73.01(c).

Standard of Review

We will affirm the judgment of the circuit court unless the judgment is not supported by substantial evidence, is against the weight of the evidence, or is based upon a misstatement or misapplication of the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Substantial evidence is "competent evidence which, if believed, would have probative force on the issues." Midstate Oil Co. v. Missouri Com'n on Human Rights, 679 S.W.2d 842, 846 (Mo. banc 1984) (quoting Barnes Hosp. v. Missouri Com'n on Human Rights, 661 S.W.2d 534, 537 (Mo. banc 1983)). We consider all evidence and reasonable inferences therefrom in the light most favorable to the judgment, disregarding contradictory evidence. Murphy v. Carron, 536 S.W.2d at 32. "We give greater deference to the trial court in custody matters than other matters. Because the trial court is in the best position to weigh all of the evidence, we will affirm the trial court's custody determination under any reasonable theory." Bohac v. Akbani, 29 S.W.3d 407, 411 (Mo.App. E.D.2000) (citations omitted).

Regarding Father's third point concerning the trial court's exercise of its discretion in admitting evidence, we rarely reverse based on erroneous admission of evidence in a court-tried case. Steinbruegge v. Steinbruegge, 670 S.W.2d 583, 584 (Mo.App. E.D.1984). The ultimate inquiry is the effect of the claimed error on our review under Murphy v. Carron. State ex rel. Williams v. Williams, 609 S.W.2d 456, 458 n. 2 (Mo.App. W.D.1980).

Discussion

Mother's Good Faith

A parent seeking to relocate with a child has the burden of proving that the proposed relocation is made in good faith and is in the best interest of the child. § 452.377.9. Furthermore, the relocation must comply with the requirements of § 452.377.10. Stowe v. Spence, 41 S.W.3d 468, 469 (Mo. banc 2001). The trial court based its finding of good faith on three things.³ First, the court found that Mother was involuntarily transferred to San Francisco; second, that she must live in San Francisco to perform her business duties; and third, that it was necessary for Mother to move to San Francisco for her continued employment with Administaff and for her financial stability.

Father disputes these findings, arguing that Mother's move was not involuntary and that there were several jobs available in St. Louis that she could have taken with relatively the same impact on her income. Father argues that Mother made unreasonable demands for staying in St. Louis and that is why it appears she is unable to stay. He concludes that because Mother's salary could not compensate for the increase in cost of living in San Francisco, it is unreasonable for her to refuse to take a pay cut to stay in St. Louis, citing Dixon v. Dixon, 62 S.W.3d 589, 591-94 (Mo.App. W.D.2001). However, the trial court found that Mother's raise in salary did not take into account the cost of living increase she would also receive upon moving to San Francisco. Therefore, Father's assumption that she is essentially taking a pay cut to move there is unsupported.

Father also argues that Mother voluntarily accepted the position in San Francisco however, he fails to mention that had she declined the position, she would have lost her job with Administaff. The trial court found Mother applied for one other similar job in St. Louis to no avail. Furthermore, while Father's expert conducted a job search that yielded results, the expert did not know Mother's educational background nor did he know whether those companies would hire someone with such a background. Therefore, Father's assumption that there were many jobs here that Mother could have taken is similarly unsupported.

Finally, not only does Father argue a lack of good faith, but Father argues that Mother exhibited bad faith in that she left in order to decrease Father's time with Grant. However, for this he cites the notice Mother provided of her wish to relocate "due to an involuntary lateral job transfer" and her proposed custody arrangement, which did in fact contain less time for Father with Grant. The mere fact that Mother included a proposal with less time does not mean that her purpose in moving was to achieve that end. Rather, the practical reality of Mother's move meant that 50/50 time was no longer going to be possible.

Father also argues that Mother did not see the father-child relationship as more important than Grant's relationship with Mother's fiancé, and she left desiring that Grant spend more time with her fiancé, who lived in San Francisco, than with Father. The trial court found that Mother considered both Grant's relationship with Father and with her fiancé to be equally important. The trial court did not find that Mother left in order to deprive Father of time with Grant, and the trial court was in the best position to judge Mother's credibility on her reasons for moving. The trial court found her to be credible, and this finding was supported by substantial evidence and was...