Riley v. Riley, 65699

• Decision Date: 30 May 1995
• Docket Number: No. 65699,65699
• Parties: In re the Marriage of Donna J. RILEY, n/k/a Donna J. Schaeffer, Appellant, v. Roger S. RILEY, Respondent.
• Court: Missouri Court of Appeals

Page 272

904 S.W.2d 272

In re the Marriage of Donna J. RILEY, n/k/a Donna J.

Schaeffer, Appellant, v. Roger S. RILEY, Respondent.

No. 65699.

Missouri Court of Appeals,

Eastern District,

Division One.

May 30, 1995.

Motion for Rehearing and/or Transfer to

Supreme Court Denied July 27, 1995.

Application to Transfer Denied

Sept. 19, 1995.

Julius H. Berg, Dennis A. Buchheit, Clayton, for appellant.

Bruce Hilton, St. Louis, for respondent.

CRAHAN, Judge.

Mother appeals the trial court's order denying her motion to modify the parties' dissolution decree to permit her to move her son, Patrick, out of state and granting Father's motion to transfer custody of Patrick from Mother to Father. Mother maintains, inter alia, that the trial court's determination that the transfer of custody would be in the best interest of the child is not supported by substantial evidence and that the provisions for her temporary custody and visitation with Patrick and the parties' other child, Scott, are impractical, unworkable and unsupported by substantial evidence. We reverse and remand with directions.

The marriage of the parties was dissolved in March, 1993. In the decree, Mother was awarded custody of the parties' younger son, Patrick, then age 13, and Father was awarded custody of Scott, then age 16. Each party was ordered to pay child support to the other and was granted a "Siegenthaler Schedule" ¹ of temporary custody and visitation. An amended decree was entered in April, 1993 but did not change the custodial provisions. The parties are quite comfortable financially, having won an annuity of $220,000 gross per year in the Illinois Lottery, which was divided equally in the decree. Payments will continue for approximately ten more years.

In August, 1993, Mother married Donald Schaeffer and they continued to reside, with Patrick, in St. Louis. In early October, 1993, Mr. Schaeffer was notified by his employer that he was being transferred to Texas. On October 12, 1993, Mother filed a motion to modify the decree to permit her to remove the child from the state for more than 90 days. ² Mother also sought the entry of temporary custody orders for both children. In his answer, Father denied that the move would be in Patrick's best interest and claimed that if Mother moved to Texas as planned, custody should be transferred to him. Alternatively, Father asked for an order granting specific temporary custody rights in Missouri, payment of any transportation expenses by Mother, abatement of all child support for Patrick, consideration of Mr. Schaeffer's income in determining the amount of any ordered child support and payment of his attorney fees. Later, Father filed a cross motion to modify seeking to transfer custody of Patrick to him, terminate his child support obligation and require Mother to pay child support pursuant to Rule 88.01.

A hearing on the motions was held on February 9, 1994 and the trial court entered its order the same day. Mother and Father were the only witnesses. Documentary evidence pertaining to Patrick's schooling and activities was received without objection. Neither party filed a Form 14.

In its order, the trial court transferred custody of Patrick from Mother to Father and granted Mother the same "Siegenthaler Schedule" of temporary custody and visitation for both children. Mother was ordered to pay any costs of the children's transportation and to pay additional child support in the amount of $346.58 for Patrick's support, which the court found to be in accordance with authorized support guidelines.

Our review in this case is governed by Rule 73.01(c) and Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). The decision of the trial court must be affirmed unless it is against the weight of the evidence, unsupported by substantial evidence, or misstates or misapplies the law. Sinopole v. Sinopole, 871 S.W.2d 46, 47 (Mo.App.1993). Where the custody of a child is at issue, the welfare of the child is the primary consideration. Wenger v. Wenger, 876 S.W.2d 735, 743 (Mo.App.1994). It is for the trial court to determine what is in the best interest of the child and it is for this court to determine whether there is evidence to support that assessment.

There was little, if any, dispute about the facts. Patrick has always resided with Mother. In early October, 1993, Mr. Schaeffer was informed of his transfer to Texas. About a week later, Mother filed her motion to modify seeking relief from the provision of the decree prohibiting her from removing the child from the state for more than 90 days without prior court approval.

Mother and Mr. Schaeffer purchased a home in a new subdivision in Plano, Texas, just north of Dallas, which was about fifteen minutes from Mr. Schaeffer's new office. Mother delayed moving to Plano with Patrick until after Thanksgiving to facilitate visitation with Father over the holiday.

While in St. Louis, Patrick had been attending parochial school but, in consultation with Mother, decided to attend the public Hendrick Middle School in Plano. Hendrick was rated number two in the State of Texas and was better than the available parochial school. As in St. Louis, Patrick's grades at Hendrick were mostly B's. Patrick had always been involved in extracurricular activities and immediately became active in a number of programs in Plano. He joined a soccer team and made plans to play baseball in the summer. He joined a boy scout troop and was working toward obtaining Eagle Scout rank in the near future. He signed up for a scout camp for two weeks in July.

Patrick attends religious training classes two nights per week and is active in the youth group. At the time of the hearing in February, 1994, he had recently attended a weekend retreat with Mother and Mr. Schaeffer, who served as group leaders. Patrick, Mother and Mr. Schaeffer are all Roman Catholics. Father is of a different faith. Patrick's confirmation was scheduled for April, 1994.

Patrick was receiving tutoring from his math teacher at Hendrick after school. Mother indicated her intent to continue the math tutoring and to enroll Patrick in a keyboarding class suggested by the school counselor to help him prepare for high school the following year.

Mother is not employed outside the home but takes classes in computers and physical education. She works as a volunteer at Patrick's school cafeteria and drives him where he needs to go. She also helps with his homework. Mother does not believe it is a good idea for children to be home by themselves if it is not necessary. Mother feels Patrick is mature enough to stay home by himself at times and he has done so on occasion. However, Patrick does most things with Mother and Mr. Schaeffer.

Mother testified that Mr. Schaeffer and Patrick engaged in a variety of activities together. Mr. Schaeffer helps with the carpooling and cooking and has been helping Patrick with his school schedules to help him prepare for high school and college. According to Mother, Patrick had adjusted well to his move to Texas. Others have told Mother that Patrick seems very well adjusted.

The same cannot be said of the parties' older son, Scott, who has resided with Father since the dissolution. At the time of trial, Scott was attending Affton Senior High School, the third high school he had attended. Scott transferred to Affton after difficulties arose at his previous school, DuBourg High School. At Affton, Scott was failing all but one subject. Father spent very little time with Scott on his studies. Although Scott had been involved in extracurricular activities at DuBourg, he was not involved in any at Affton. Instead, he was working approximately 30 hours per week at a fast food restaurant to pay for insurance and maintenance on a truck. Father did not think Scott's low grades were the result of Scott working. Although Scott had received tutoring prior to the dissolution, he had no tutoring since the dissolution.

Father and Mother do not communicate directly. Father learned of the impending move from Patrick. Father did not consent to the move because he did not think it is a good idea to split the two brothers up and he did not feel the move would be in Patrick's best interest.

In her first point relied on, Mother essentially urges that the trial court's decision to transfer custody of Patrick to Father is unsupported by substantial evidence in that the undisputed evidence established that she had been and was satisfying Patrick's physical and emotional needs and failed to establish that Father would be a proper custodian for the child. As Father points out, however, the bulk of Mother's argument focuses on the trial court's denial of her motion for permission to move Patrick out of state. Because that ruling is not specifically mentioned in the point relied on, Father urges that the issue of whether the trial court erred in refusing permission to move the child is not properly before us and that our review must therefore be limited to the narrow issue of whether the trial court erred in transferring custody of Patrick to Father.

In the abstract, Father is correct that the issue of whether a party should be granted permission to move a child from the state is separate from the issue of whether custody should be transferred from one party to another. See, e.g., Wild v. Holmes, 869 S.W.2d 917 (Mo.App.1994) (affirming denial of permission to move child to Ohio; no change of custody sought or considered). Thus, the better and safer practice would be to submit separate points relied on for each issue and address both issues in a combined fashion in the argument to avoid redundancy. In this case, however, it is clear that the parties and the trial court viewed Mother's request to move the child and Father's request to transfer custody as a single, "either/or" proposition. Had the evidence disclosed and the trial court found that it would be feasible for Mother to remain in Missouri with the child despite her...