Ronald v. Angeline Sanderson, No. WD 62139 (Mo. App. 10/21/2003)

• Decision Date: 21 October 2003
• Docket Number: No. WD 62139.,WD 62139.
• Parties: RONALD HESLOP, II, Respondent, v. ANGELINE SANDERSON, Appellant.
• Court: Missouri Court of Appeals

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RONALD HESLOP, II, Respondent, v. ANGELINE SANDERSON, Appellant.

No. WD 62139.

Missouri Court of Appeals, Western District.

October 21, 2003.

Appeal from Circuit Court of Jackson County, Missouri, The Honorable Marco A. Roldan, Judge.

Allen S. Russell, Jr., Kansas City, MO, Attorney for Respondent.

J. Armin Rust, Lexington, MO, Attorney for Appellant.

Before Breckenridge, P.J., and Smith and Howard, JJ.

Opinion by Smith, J.

Angeline V. Sanderson appeals from the judgment of the Circuit Court of Jackson County modifying the court's decree of dissolution of marriage by changing the primary physical custody of her son, Kyle McBride Heslop, from her to his father, Ronald Heslop, II, the respondent.

The appellant raises nine points on appeal. In Points I and II, she challenges the trial court's finding that her relocation with Kyle to Bakersfield, Missouri, without the consent of the respondent or a court order, was a change of circumstances warranting a change of custody from her to the respondent, in accordance with § 452.410. In Points III-VI and IX, she claims error with respect to various evidentiary rulings of the trial court at the modification hearing concerning the respondent's felony conviction for driving while intoxicated. In Point VII, she challenges the sufficiency of the evidence to support the modification as being in Kyle's best interests, as provided in § 452.410. And, finally in Point VIII, she challenges the sufficiency of the evidence to support the trial court's finding that her removal of Kyle from public schooling, without consulting with the respondent and in violation of the custody decree, constituted a change in circumstances justifying the change in custody, under § 452.410.

We reverse and remand.

Division I holds:

There was nothing in the respondent's "motion to amend pleadings" that could be interpreted as his seeking an order to prevent the relocation, as provided in § 452.377.7. And, although § 452.377.7 provides that the motion shall be accompanied by an affidavit setting forth the specific factual basis supporting a prohibition of the relocation, the respondent's motion was signed by counsel alone and was not under oath, such that it could not be considered an affidavit. Moreover, even if the motion would have qualified as an affidavit, it does not set forth a specific factual basis supporting a prohibition of the relocation, as required by § 452.377.7. Hence, the respondent's motion for leave to amend his motion to...