Schlotman v. Costa

• Decision Date: 13 June 2006
• Docket Number: No. WD 65125.,WD 65125.
• Citation: 193 S.W.3d 430
• Parties: Leslie Marie SCHLOTMAN, Formerly Leslie Marie Costa, Respondent, v. Nathan Matheus COSTA, Appellant.
• Court: Missouri Court of Appeals

193 S.W.3d 430

Leslie Marie SCHLOTMAN, Formerly Leslie Marie Costa, Respondent, v. Nathan Matheus COSTA, Appellant.

No. WD 65125.

Missouri Court of Appeals, Western District.

June 13, 2006.

Appeal from the Circuit Court, Platte County, Daniel M. Czamanske, J Abe Shafer, V., Esq., Weston, MO, for appellant.

James D. Farris, Esq., Atchison, KS, for respondent.

Before LOWENSTEIN, P.J., ELLIS and NEWTON, JJ.

HAROLD L. LOWENSTEIN, Judge.

The marriage of Nathan Costa ("Father") and Leslie Schlotman ("Mother") was dissolved on June 8, 2004. There were two children born of the marriage: a girl born in December 1996 and a younger sister born in March 2000. Mother and Father shared joint legal and physical custody of the children. Mother was designated as the primary residential custodian. The children were to spend every other weekend, four weeks of their summer vacation and various holidays with Father. Father was also given the "first option of keeping the minor children at all times when [Mother] is not personally and directly providing child care for said children."

After the dissolution, both parties lived in Weston, Missouri. On August 31, 2004, Mother filed a motion to relocate the children to Omaha, Nebraska. Pursuant to Section 452.377,¹ Father contested the relocation and requested modification of custody if the relocation was approved. In the event the trial court approved the relocation, Father asked that the primary care, custody and control of the children be given to him.

At the hearing on the motion, Mother introduced evidence that her new husband was stationed at OFFIT Air Force Base in Omaha. Mother testified that relocating to Omaha with her new husband would allow her to become a stay-at-home parent.

The trial court entered its judgment allowing Mother to relocate with the two children. Under the judgment, Mother and Father continued to share joint legal and physical custody of the children. The original visitation schedule was not altered and a new parenting plan was not adopted. Father timely filed a motion to amend the judgment, arguing that the trial court failed to include necessary findings. The trial court then issued an amended judgment that included an exhibit containing the best interest factors contained in Section 452.375.2.²

STANDARD OF REVIEW

In a court-tried case, an appellate court will affirm the judgment if it is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law. Stowe v. Spence, 41 S.W.3d 468, 469 (Mo. banc 2001); Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

WRITTEN FINDINGS

In his first two points, Father argues that the trial court failed to make the requisite findings under Sections 452.377 and 452.375 and that the decision to allow relocation was against the weight of the evidence. Because the trial court did not make the requisite findings, this court is unable to reach the issue of whether the decision was against the weight of the evidence and the cause is remanded to the trial court for findings on the best interest factors.

Under Section 452.377, the relocation statute, the trial court must determine whether the proposed relocation is in the best interests of the child, whether the relocation is made in good faith, and if relocation is permitted, whether the relocation complies with the requirements of 452.377.10. Section 452.377; Stowe v. Spence, 41 S.W.3d 468, 469 (Mo. banc 2001).

The ultimate issue here is whether the trial court is required to make written findings if relocation is contested. Generally, in a custody modification case, the trial court is required to make written findings if the parties do not agree on the custodial arrangement. Section 452.375.6; Speer v. Colon, 155 S.W.3d 60, 61 (Mo. banc 2005). The trial court is not required to make findings on every best interest factor, but must make written findings on relevant factors as well as on the public policy in Section 452.375.4.³ Speer, 155 S.W.3d at 61-62.

Even if the parties agree to the same custody designation, if the parties disagree on the residence address of the child or on the parenting plan, these are sub-issues of custody that require the trial court's resolution in the form of written findings. Buchanan v. Buchanan, 167 S.W.3d 698, 699 (Mo. banc 2005). Therefore, it is safe to conclude that if relocation is contested, the trial court should be required to make written findings. In this case, Father contested relocation. The parties did not agree on the custodial arrangement, specifically, where the children would reside. Therefore, the trial court should have made written findings on the relevant best interest factors and the public policy of Section 452.375.4. The trial court should have considered whether the relocation was made in good faith, and if ordered, whether the relocation complies with 452.377.10.

Here, the judgment does not contain any findings of fact. In the amended judgment, the trial court incorporated into the judgment "Section 452.375 Summary of Relevant Factors." The incorporated exhibit consisted of a checklist of the best interest factors of 452.375.2. Next to the list of factors were two columns, one for Mother and one for Father. The trial court marked each factor in favor of Mother or Father, presumably depending upon which factor weighed in favor of the particular parent. There was no other discussion on whether the proposed relocation was in the best interests of the children. The findings here do not allow meaningful appellate review. Because the first point is dispositive, the court need not address Father's second point as to whether the decision was against the weight of the evidence. The case is remanded with instructions to the trial court to issue written findings on the relevant best interest factors of 452.375.2 and the public policy statement of 452.375.4.

PARENTING PLAN

In his third point on appeal, Father argues that the trial court failed to enter a new parenting plan that complied with Section 452.377.10. Father claims that the trial court failed to address contact between the nonrelocating parent and the children and failed to specify how the transportation costs were to be allocated between the parties.

Under 452.377.10, if relocation is permitted:

(1) The court shall order contact with the nonrelocating party including custody or visitation and telephone access sufficient to assure that the child has frequent, continuing and meaningful contact with the nonrelocating party unless the child's best interest warrants otherwise; and

(2) The court shall specify how the transportation costs will be allocated between the parties and adjust the child support, as appropriate, considering the costs of transportation.

The trial court did not adopt a new parenting plan after approving the relocation. The parenting plan that was adopted at the dissolution was incorporated without change into this judgment. Father was to receive the same visitation as when the children lived in Weston. The parenting plan is silent as to transportation costs and failed to specify how the costs were to be allocated between the parties. Father's third point is granted, and we remand to the trial court. The trial court must review the existing visitation schedule to determine the need for modification in light of the relocation and must allocate the added transportation costs caused by the relocation as appropriate. Baxley v. Jarred, 91 S.W.3d 192, 207 (Mo.App.2002).

ATTORNEY FEES

In Point IV, Father argues that the trial court erroneously allocated the costs of the action equally between the parties. Under Section 452.377.13, "[a]ny party who objects in good faith to the relocation of a child's principal...