Rice v. Shepard, WD

• Decision Date: 07 June 1994
• Docket Number: No. WD,WD
• Citation: 877 S.W.2d 229
• Parties: Thomas RICE, Appellant, v. Kimberly Lea SHEPARD (Now Lucas), Respondent. 48260.
• Court: Missouri Court of Appeals

Page 229

877 S.W.2d 229

Thomas RICE, Appellant, v. Kimberly Lea SHEPARD (Now Lucas), Respondent.

No. WD 48260.

Missouri Court of Appeals Western District.

June 7, 1994.

Debra L. Snoke, Julianne H. Carter, Jolley, Walsh & Hager, P.C., Kansas City, for appellant.

John K. Allinder, Independence, for respondent.

Before SMART, P.J., and KENNEDY and ULRICH, JJ.

ULRICH, Judge.

Thomas Rice appeals from the modification decree which awarded primary physical custody of the minor child born of the marriage between Mr. Rice and Kimberly Lea Shepard, denied Ms. Shepard's motion for leave to remove the child from the State of Missouri, and provided that if Ms. Shepard resumes permanent residence in the State of Missouri within a thirty-mile radius of Kansas City on or after August 15, 1994, primary physical custody of the minor child is to automatically revert to Ms. Shepard. Mr. Rice contests on appeal only the third provision of the court's order, contending that the automatic change of the physical custody of the minor child to Ms. Shepard is dependent on a speculative future occurrence and does not constitute a substantial change in circumstances as provided by § 452.410, RSMo Supp.1993, to permit transfer of the child's physical custody from father to mother.

The marriage between Thomas Rice and Kimberly Lea Shepard was terminated by decree on May 14, 1991. The court awarded legal custody of Alyssa Ann Shepard-Rice, then aged two and a half years, to the parents jointly. The decree granting joint legal custody of the child to her parents was made contingent upon Ms. Shepard's statements to the court that she would reside with her parents in Blue Springs and not in Kansas with "her boyfriend."

In November 1992, Ms. Shepard married Stan Lucas, then residing in Des Moines, Iowa. Ms. Shepard took Alyssa to Des Moines. Mr. Rice remarried on June 3, 1992.

On December 4, 1992, Ms. Shepard filed her motion to modify the dissolution decree, seeking the court's order permitting her to remove the child from Missouri. Mr. Rice filed his answer and a counter motion to modify the dissolution decree to grant him primary physical custody of Alyssa.

The trial court conducted a hearing on June 9, 1993, on the parties' motions and issued its modification decree awarding primary physical custody of Alyssa to Mr. Rice. The modification decree denied Ms. Shepard's motion to remove Alyssa from the State of Missouri, and it denied Mr. Rice's request for child support and attorney fees. The decree also contained the provision at issue now that if Ms. Shepard resumed permanent residence in the State of Missouri within a thirty-mile radius of Kansas City on or after August 15, 1994, Alyssa's primary physical custody would automatically revert to Ms. Shepard.

I

Mr. Rice contends as his single point on appeal that the trial court erred in ordering the automatic transfer of Alyssa's physical custody to Ms. Shepard if she resumed permanent residence in the State of Missouri within thirty miles of the Kansas City area on or after August 15, 1994. Mr. Rice claims that such event is speculative, future, and does not constitute a substantial change in circumstances as contemplated by § 452.410, RSMo Supp.1992, sufficient to necessitate Alyssa's transfer of physical custody from father to mother.

The standard of review is stated in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). The trial court will be affirmed unless it misstates the law, misapplies the law, substantial evidence does not support the judgment, or the judgment is against the weight of the evidence. Id. at 32.

Section 452.410, provides in part that a court having jurisdiction pursuant to section 452.450 will not modify a prior custody decree unless "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." The change in circumstances required by section 452.410 for modification of a minor child's custody placement must relate to the child or his custodian. Moore v. Moore, 849 S.W.2d 652, 655 (Mo.App.1993). The change in circumstances must be significant before the custody decree is modified. Burden v. Burden, 811 S.W.2d 818, 820 (Mo.App.1991). The residential change of the custodial parent to a distant location away from the noncustodial parent is a change of circumstances within the meaning of section 452.410.1, RSMo Supp.1993, sufficient to grant jurisdiction to the trial court to consider modification of the prior custodial decree. Adams v. Adams, 812 S.W.2d 951, 956 (Mo.App.1991); see also § 452.411, RSMo Supp.1992 (changing residence to another state is change of circumstance granting jurisdiction under § 452.410). However, the move alone does not establish that...