Thomas v. Thomas, WD

• Decision Date: 30 March 1999
• Docket Number: No. WD,WD
• Citation: 989 S.W.2d 629
• Parties: Jacqueline Anne THOMAS, Respondent, v. Billy F. THOMAS, Appellant. 55295.
• Court: Missouri Court of Appeals

Page 629

989 S.W.2d 629

Jacqueline Anne THOMAS, Respondent, v.Billy F. THOMAS, Appellant.

No. WD 55295.

Missouri Court of Appeals Western District.

March 30, 1999.

M. Corinne Corley, Esq., Kansas City, MO, for Appellant.

Alison K. Blessing, Esq., Liberty, MO, for Respondent.

Before Presiding Judge HAROLD LOWENSTEIN, Judge PAUL SPINDEN and Judge VICTOR HOWARD.

LOWENSTEIN, Judge.

This is an appeal from an order following a motion to modify a child custody decree wherein the trial judge granted Jacqueline Thomas' (Mother) motion, as primary physical custodian, to permit the removal of her six year old daughter Samanthe from Missouri.Mother and her new husband, Scott Highland, proposed a move, with daughter, from Kansas City to Denver, Colorado.The child's father, Billy Thomas(Father) objected to the move and appeals the decision allowing the move.The court's order also allowed increased child support and awarded Mother some of her attorney's fees.It denied Father's motion to change custody from Mother to himself.In allowing Mother to move out of state, the court modified visitation allowing Father increased time and ordering Mother to pay a portion of the travel expenses.Father's four points on appeal are that the trial court erred (1) in failing to consider a change in custody because it had discretion to do so regardless of the apparent flaw in service of Father's motion on Mother; (2) in granting Mother's request to remove the minor child from the State of Missouri because it was not in the best interest of the child to permit Mother to remove the child; (3) in its calculation of child support because it failed to take into consideration the Mother's income potential and the income of respondent spouse, as well as the Form 14 offered by Father, which was supported by the evidence; and (4) in granting attorney fees to Mother because there was no evidence to support the award in that Father had no notice of fees as required by Missouri law.This court affirms.

Mother and Father were married in April 1980.Their child, Samanthe, was born in June 1992.Mother and Father's marriage was dissolved in April 1994.The dissolution decree ordered that the parties share joint legal custody, with Mother designated as primary physical custodian.Father was granted reasonable visitation and reasonable temporary custody.In addition, Father paid $214 each month as support for Samanthe.

Mother married Scott Highland in May of 1996.In early 1997, Mother and Mr. Highland learned that Mr. Highland's continuing employment with ProSource was contingent upon his accepting a mandatory transfer.The company's management force in the Kansas City area was cut back due to a loss of business.By the time of the hearing, Highland had already commenced employment at the Denver facility of ProSource.Between 1993 and 1997, Mr. Highland's base salary increased approximately $20,000.His annual salary with ProSource was $43,000 per year.In addition to that salary Mr. Highland received a miscellaneous expense account totaling $6,000 per year for a package of $49,000 annually.His health insurance policy through ProSource included Samanthe.Father's income is $34,000 a year.

Mother's motion requested permission to remove Samanthe from Missouri due to Highland's job transfer to Denver.In her motion, Mother argued that Samanthe's best interest would be served by the move because the move would increase Samanthe's standard of living.She also cited the child's excellent relationship with Highland as well as Father's continued opportunity to have meaningful contact with the child albeit in Colorado.The evidence showed that Samanthe unquestionably loved and had a meaningful relationship with both parents.

In addition to allowing the Mother's move, the court, pursuant to the guidelines, determined the presumed amount of $570 was due per month in child support.The court increased Father's visitation both in Colorado and Missouri, including six weeks in this state, with Mother's being responsible for the expense of bringing the child to Father and retrieving the child from Father.The court found mother's attorney's fees to be $16,000, ordering Father to pay $2500 of that amount.

I.

A bit of background information is necessary on the first point.Shortly after being served Mother's motion, Father filed but never served on Mother his motion for a change of custody.When this was brought to Father's attention at a pre-trial conference a month before the hearing on mother's motion, the court refused to hear Father's motion.

In his first point on appeal, Father contends that the trial court erred when it failed to consider a change in custody because it had discretion to do so regardless of the "apparent flaw" in service of Father's motion on Mother.Essentially, Father claims that some "unusual circumstance" occurred regarding service of Father's Motion to Modify.Father claims that the circuit clerk's office advised his counsel that Mother had been personally given a copy of Mother's motion to modify so that service was not necessary.Father claims that these "suspicious circumstances warranted more than the dismissive treatment given to the issue by the trial court."Although Father concedes that personal service of his motion did not occur, Father argues that his motion should be treated as a cross-motion with no requirement of service necessary.This court disagrees.

It is a fundamental rule of civil procedure that sets forth the requirements of issuance and service of process.Specifically, Rule 54.13(b)(1) governs personal service within the state on an individual.¹Mother filed her Motion to Modify Decree of Dissolution of Marriage on March 31, 1997.Mother personally served Father on April 9, 1997.Father never filed a responsive pleading.On April 4, 1997, Father filed Respondent's Motion to Modify.This motion was never served upon Mother as required by Rule 54.13(b)(1).

Moreover, Rule 43.01 governs service of pleadings upon opposing counsel while an action is pending.²Unlike Father's contention service is necessary even with a cross-motion.Father's motion to modify does not contain a certificate of service indicating service on opposing counsel as required by Rule 43.01(d).Father attempted to meet the service requirement by filing a Certificate of Service on August 11, 1997(the date of trial) stating that "[o]n 31July 1997, my paralegal placed in the regular, U.S. Mail, first-class postage pre-paid, a copy of the file stamped Respondent's Motion to Modify, properly addressed to Allison Blessing(Mother's counsel) at her address of record in this case."This attempt simply did not comply with the service requirements found in Rule 43.01(d).Not until August 13, 1997 did personal service finally occur.As such, and in accordance with the Rules, the trial court did not commit an abuse of discretion in refusing to consider Billy Thomas' motion for change of custody at the hearing on August 11, 1997.Point denied.

II.

In his second point on appeal, Father argues that the trial court erred because it was not in the child's best interests that she leave her father and her family to live in Colorado.Where the custodial parent seeks to remove a child from the state for more than ninety days, he or she must obtain court permission unless the non-custodial parent consents to removal.Section 452.377, RSMo 1986.Moreover, a court may permit removal of a minor child from the jurisdiction when it clearly serves the best interests of the child.Carter v. Schilb, 877 S.W.2d 665, 667(Mo.App. W.D.1994).

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.Shoemaker v. Shoemaker, 812 S.W.2d 250, 253(1991);Murphy v. Carron, 536 S.W.2d 30, 32(Mo. banc 1976).The trial court's decision is presumed correct, and the appellant has the burden of showing error.Kerr v. Jennings, 886 S.W.2d 117, 123(Mo.App.1994).As in other court tried cases, only evidence and reasonable inferences favorable to the judgment will be considered.

Four factors have been recognized in determining whether to allow the custodial parent to remove a child from the state.Carter, 877 S.W.2d at 667.These are: (1) the prospective advantages of the move, including a consideration of whether or not the move will improve the general quality of life for the custodial parent and child; (2) the custodial parent's motives in relocating, including a consideration of whether or not he or she is attempting to defeat or to frustrate the noncustodial parent's visitation rights; (3) the noncustodial parent's motives for opposing relocation, including a consideration of the extent to which it is intended to support; and (4) the realistic opportunity for visitation which can provide an adequate basis for preserving and fostering the noncustodial parent's relationship with the child if the move is permitted.Id. at 667-668;Shaw v. Shaw, 951 S.W.2d 746, 748-49(Mo.App. W.D.1997);Maher v. Maher, 951 S.W.2d 669, 672-73(Mo.App. E.D.1997).

The prospective advantages of the move weigh in favor of Mother moving with her daughter to Colorado.This court believes that the move will improve the general quality of life for Mother and child.Mother testified that due to Highland's mandatory transfer with ProSource and the increase in salary that went along with the transfer, she was able to terminate her employment and become a stay at home mother.Mother and Highland carefully considered the neighborhood and school district when choosing their new residence.Mother testified that she contacted the Chamber of Commerce in Denver and read books to help her become more aware of the...