Stowe v. Spence, Jr.
| Decision Date | 10 April 2001 |
| Citation | 41 S.W.3d 468 |
| Parties | (Mo.banc 2001) Laurie (Woods) Stowe, Respondent v. Donald Ray Spence, Jr., et al., <A HREF="#fr1-1" name="fn1-1">1 , Appellants. SC82940 0 |
| Court | Missouri Supreme Court |
Appeal From: Circuit Court of Dunklin County, Hon. Stephen R. Sharp
Counsel for Appellant: Richard L. Schnake
Counsel for Respondent: Kenneth C. McManaman
Opinion Summary: When the custodial mother decided to relocate, the father moved to modify custody. The court approved the relocation and modified custody to joint with visitation but omitted how transportation costs would be allocated, as required by section 452.377.10(2).
Court en banc holds: Before a 1998 amendment to section 452.377, the courts approved relocation if it was in the child's best interests, using a four-part test set out in Michel v. Michel. Now section 452.377 requires the court to determine that the relocation is in the child's best interest, is made in good faith, and if ordered, complies with other subsection 10 requirements. Michel's four-part test is inconsistent with the statute and shall not be used in determining the child's best interests. The case is reversed and remanded for failure to comply with subsection 10.
Stith, J., not participating.
Laurie (Woods) Stowe (mother) and Donald Ray Spence, Jr., (father) are the parents of a child born in 1994. Paternity was established and custody was awarded in 1997. On May 20, 1998, father sought to modify the custody of the child. Judgment on the motion to modify was entered on July 28, 1999. Father and his parents appeal. Following opinion by the court of appeals, the case was transferred to this Court. Mo. Const. article V, section 10. Because the trial court failed to include in its judgment material required by statute, the judgment is reversed, and the cause is remanded.
Following the 1997 judgment awarding her primary custody of the child, mother decided to relocate to Michigan. Father then filed his motion to modify. While the matter was pending, the General Assembly adopted significant changes in section 452.377,2 effective August 28, 1998. Subsections 9 and 10 provide:
9. The party seeking to relocate shall have the burden of proving that the proposed relocation is made in good faith and is in the best interest of the child.
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.
In the judgment under review, the trial court approved the child's relocation to Michigan, where mother has moved. It ordered a modification in custody, awarding mother and father joint physical custody. Periods of visitation were specified. The judgment, however, failed to specify how the transportation costs would be allocated, as required by section 452.377.10.(2).
In this court-tried case, the judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The judgment erroneously applies the law by failing to include the...
To continue reading
Request your trial
-
Dunkle v. Dunkle
...sets forth substantive standards that guide the trial court's resolution of relocation disputes. See section 452.377.9-.10; Stowe v. Spence, 41 S.W.3d 468, 469 (Mo. banc 2001). Under section 452.377, courts must find that relocation "(1) is in the best interests of the child, (2) is made in......
-
Weaver v. Kelling
...Supreme Court expressly rejected the four-factor test to determine whether relocation is in the best interest of the child. Stowe v. Spence, 41 S.W.3d 468, 469 (Mo. banc 2001). The Court explained that the test was applied prior to the 1998 amendment of section 452.377, when courts approved......
-
Merriweather v. Chacon
...complies with the requirements of section 452.377.11.4 Schlotman v. Costa , 193 S.W.3d 430, 433 (Mo. App. W.D. 2006) (citing Stowe v. Spence , 41 S.W.3d 468, 469 (Mo. banc 2001) ); see also section 452.377.10. When it comes to determining the best interests of the child in a relocation case......
-
Baker v. Welborn
...substantial evidence to support it, it is against the weight of the evidence, or it erroneously declared or applied the law. Stowe v. Spence, 41 S.W.3d 468, 469 (Mo. banc Mother's first point on appeal asserts the trial court erred in modifying the terms of father's visitation because "the ......