Spire v. Adwell

Decision Date19 December 2000
Citation36 S.W.3d 28
Parties(Mo.App. W.D. 2000) . Stephanie K. Spire (formerly Adwell), Respondent v. Bradley J. Adwell, Appellant WD58118 Missouri Court of Appeals Western District Handdown Date:
CourtMissouri Court of Appeals

Appeal From: Nodaway County Circuit Court, Hon. John C. Andrews

Counsel for Appellant: Janet W. Larison

Counsel for Respondent: Roger M. Prokes

Opinion Summary: Bradley Adwell (Father) appeals judgment modifying the original dissolution order between himself and his ex-wife Stephanie Spire (Mother). After finding that a substantial and continued change of circumstances had arisen due to Mother's plans to move the children to Blue Springs, Missouri, the court allowed Mother to retain primary physical custody of the children and modified the original dissolution decree by granting Father additional visitation. Father challenges the Court's decision to allow Mother to retain primary physical custody and to relocate the children.

AFFIRMED.

Division holds:

(1) Mother's plan to move to Blue Springs with the children and her new husband, who had obtained more lucrative employment in the Kansas City area after obtaining his college degree, constituted a substantial and continuing change in circumstances.

(2) The circuit court's decision not to modify the original divorce decree to change primary physical custody from Mother to Father was supported by substantial and competent evidence and was not against the weight of the evidence where the evidence established that both Mother and Father were good parents, Mother desired Father to have substantial and meaningful visitation with Father, Mother would be home when the children were not in school, and Mother presented evidence of the quality of the children's new home and school district.

(3) The circuit court did not err in finding that the move to Blue Springs was being contemplated in good faith and was in the children's best interest and in allowing Mother to relocate the children's principal residence. The evidence supported a finding that the move would improve the general quality of life for Mother and the children and was being made in good faith, and the additional visitation granted to Father by the trial court provided for a realistic opportunity for visitation which can provide frequent, continuing and meaningful contact between Father and the children.

Opinion Author: Joseph M. Ellis, Judge

Opinion Vote: AFFIRMED. Smith, P.J. and Ulrich, J., concur

Opinion:

Bradley Adwell ("Father") appeals from a judgment entered in the Circuit Court of Nodaway County modifying the original dissolution order between himself and his ex-wife Stephanie Spire ("Mother"). After finding that a substantial and continued change of circumstances had arisen due to Mother's plans to move the children to Blue Springs, Missouri, the Court allowed Mother to retain primary physical custody of the children and modified the original dissolution decree by granting Father additional visitation. Father challenges the Court's determination that Mother should retain primary physical custody.

On November 4, 1996, the Circuit Court of Nodaway County, Missouri entered an order dissolving the marriage of Father and Mother. The Court adopted the "Marital Settlement and Separation Agreement" entered into by the parties. The Court awarded Father and Mother joint legal custody of the couple's two children, Bryce and Brittney. The Court designated Mother as the primary physical custodian of the children subject to the visitation periods granted to Father including alternating weekends and alternating holidays.

On October 1, 1999, Father filed a "Motion to Modify" the dissolution order to grant him primary physical custody of the minor children. In relevant part, Father stated that a change in the circumstances of the children had occurred because Mother was planning to relocate the minor children's residence and had not provided Father with notice pursuant to section 452.377. Also on October 1, 1999, Father filed a "Motion for Temporary Custody and Restraining Order" to prevent Mother from moving the minor children away from Nodaway County, Missouri. Father's motions were served upon Mother on October 7, 1999.

Prior to being served with Father's motion, on October 6, 1999, Mother had the Nodaway County Sheriff's Office serve Father with her "Notification of Relocation of Children." That document stated that Mother intended to move to the Kansas City area with Bryce and Brittney in sixty days because Mother's husband had obtained employment in Kansas City. Mother attached a proposed parenting plan that would provide Father with additional visitation, including half of the children's summer vacation and full holiday weekends. On October 18, 1999, Mother filed her answer to Father's Motion to Modify.

The Circuit Court conducted a hearing on the motion to modify on November 24, 1999. On December 6, 1999, the Court entered its judgment modifying the original dissolution order. The Court found that a substantial and continued change of circumstances had arisen due to Mother's plans to move the children to Blue Springs, Missouri. The Court found that this move would alter the time periods during which the children would be accessible to Father. The court found that the Mother had duly served Father with notification of that move pursuant to Section 452.377. The Court allowed Mother to retain primary physical custody of the children and modified the original dissolution decree by adopting the provisions of Mother's parenting plan which granted Father additional visitation.

On December 27, 1999, Father filed a "Motion to Set Aside Judgment, For New Trial Or, In The Alternative, to Amend Judgment." On January 3, 2000, the court heard argument on Father's motion and denied the same.

Father brings two points on appeal. In his first point, Father claims that the trial court erred in failing to grant him primary physical custody of the children because Mother's proposed move to Blue Springs was a change in circumstances that was not in the best interests of the children.

"In matters pertaining to custody rights, this court gives deference to the trial court's assessment of what serves the best interests of the child and that judgment will not be disturbed on appeal unless the judgment is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law." Thomas v. Thomas, 989 S.W.2d 629, 633 (Mo. App. W.D. 1999). We afford the trial court greater discretion in determining child custody issues than in other matters. Hicks v. Hicks, 969 S.W.2d 840, 843 (Mo. App. W.D. 1998). "'[B]ecause of the trial court's unique position for determining the credibility, sincerity, character and other intangibles of the witnesses, we presume the awards of custody are made in the best interests of the children.'" Flathers v. Flathers, 948 S.W.2d 463, 471 (Mo. App. W.D. 1997) (quoting Gismegian v. Gismegian, 849 S.W.2d 201, 202 (Mo. App. E.D. 1993)). "This court will not disturb the trial court's determination of custody unless it is manifestly erroneous and the welfare of the children demands a different result." Hicks, 969 S.W.2d at 843.

"Under section 452.410.1, a court may not modify a prior custody decree unless it finds, on the basis of facts which have arisen subsequent to the dissolution decree, that (1) a change has occurred in the circumstances of the child or his custodian and (2) a modification of custody is in the best interests of the child." Mobley v. Phillips, 942 S.W.2d 399, 400-401 (Mo. App. W.D. 1997). "The party awarded custody in the original dissolution decree is presumed to be a suitable custodial parent, and the party seeking to change the custody arrangement bears the burden of proving a change in circumstances of the child or the custodial parent and that modification is necessary to serve the best interests of the child." Id. at 401.

Both parties agree that Mother's impending move constituted a substantial and continuing change in the circumstances. Mother's husband had obtained his college degree and found more lucrative employment in the Kansas City area than would have been available in Maryville....

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9 cases
  • Hamer v. Nicholas
    • United States
    • Missouri Court of Appeals
    • March 28, 2006
    ...of custody unless it is manifestly erroneous and the welfare of the children demands a different result.'" Spire v. Adwell, 36 S.W.3d 28, 31 (Mo.App. W.D.2000) (quoting Hicks v. Hicks, 969 S.W.2d 840, 843 (Mo.App. W.D.1998)). "`The judgment must be affirmed under any reasonable theory suppo......
  • Defreece v. Defreece
    • United States
    • Missouri Court of Appeals
    • February 26, 2002
    ...the parent with primary custody seeks to change the child's residence and thereby alter the visitation plan. See e.g. Spire v. Adwell, 36 S.W.3d 28, 30 (Mo.App. W.D.2000); In re S.E.P. v. Petry, 35 S.W.3d 862, 865-66 (Mo.App. W.D. 2001); Boling v. Dixon, 29 S.W.3d 385, 387-88 (Mo.App. W.D.2......
  • Beshers v. Beshers
    • United States
    • Missouri Court of Appeals
    • July 2, 2014
    ...of the child or his custodian and (2) a modification of custody is in the best interests of the child.’ ” Spire v. Adwell, 36 S.W.3d 28, 31 (Mo.App.W.D.2000) (quoting Mobley v. Phillips, 942 S.W.2d 399, 400–01 (Mo.App.W.D.1997)). The burden of proof is on the party seeking modification to s......
  • Fohey v. Knickerbocker
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    • Missouri Court of Appeals
    • March 30, 2004
    ...testimony presented regarding proposed living environment of the children); see also In re S.E.P., 35 S.W.3d at 867; Spire v. Adwell, 36 S.W.3d 28, 32 (Mo.App. W.D. 2000). Mother also testified, in conclusory fashion, that the relocation to Texas would benefit Myranda because the increased ......
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