Weaver v. Kelling, WD 58972.

Citation53 S.W.3d 610
Decision Date28 August 2001
Docket NumberNo. WD 58972.,WD 58972.
PartiesDeborah A. (Kelling) WEAVER, Respondent, v. Brian R. KELLING, Appellant.
CourtCourt of Appeal of Missouri (US)

David K. Holdsworth, Liberty, for appellant.

Patrick Beeman, Liberty, for respondent.

Before ULRICH, P.J., SMART and HARDWICK, JJ.

ULRICH, P.J.

Brian Kelling (Father) appeals the judgment of the trial court allowing Deborah Weaver (Mother) to relocate to Texas with the parties' three minor children. He contends that the trial court erred in denying his Cross-Motion to Modify because Mother's proposed relocation to Texas was a change in circumstances that was not in the best interest of the children. Father also claims that the trial court erred in permitting Mother to relocate with the children to Texas because (1) the court's judgment was against the weight of the evidence and not supported by substantial evidence and (2) Mother failed to notify him of her proposed relocation as required by section 452.377, RSMo 2000. The judgment of the trial court is affirmed.

FACTS AND PROCEDURAL BACKGROUND

Mother and Father were divorced in February 1995. Pursuant to the parties' joint custody agreement, the court awarded the parties joint legal custody of their three minor children with Mother receiving primary physical custody. The court also awarded Father reasonable visitation including one overnight period every weekend and one weekday lunch period per week for the children not enrolled in school full-time. And although not specified in the decree, Father's visitation typically included Monday overnight and Thursday morning with the children not in school. In November 1997, Mother filed a Motion to Modify Visitation Schedule seeking to change the visitation schedule from one overnight every weekend to alternating weekends. Mother remarried in April 1998, and soon thereafter filed her First Amended Motion to Modify Visitation Schedule seeking to change the visitation schedule and to increase Father's child support obligation.

In October 1998, Mother's new husband accepted a promotion requiring him to transfer to Texas. As a result, Mother filed a Motion for Temporary Removal of Children from the State of Missouri seeking to gain a court order granting her permission to relocate the children to Texas. Thereafter, Father filed a Motion to Dismiss Mother's motion and a Motion to Quash. Mother filed her Second Amended Motion to Modify Visitation Schedule in November 1998 again seeking a change in the visitation schedule and permission to relocate the children to Texas. Father filed his answer to Mother's Second Amended Motion and his Cross-Motion to Modify seeking primary physical custody of the children.

Following a hearing on the motions, the trial court entered its First Amended Judgment and Order Modifying Decree of Dissolution in April 1999 ordering, among other things, that Mother retain primary physical custody of the parties' children and permitting Mother to relocate with the children to Texas. Father appealed the trial court's judgment to this court. This court vacated the judgment finding that nothing in the record indicated that the trial court employed the four-factor test to determine if the relocation served the best interest of the children and remanded the case to the trial court for further findings. Weaver v. Kelling, 18 S.W.3d 525, 529 (Mo.App. W.D.2000).

On remand, the trial court entered its Judgment Pursuant to Appellate Mandate again allowing Mother to relocate to Texas with the children. The court found that relocation was in the best interest of the children because the family income will most likely substantially increase; a consistent visitation pattern will result in a more harmonious, less hectic transfer of custody between the parties; and communication between the parties concerning the children will actually be enhanced. The court also found that neither party had improper motives in requesting or challenging the relocation of the children. Finally, the court found that the new visitation schedule provides Father with a realistic opportunity for visitation that will allow him interaction and input in the children's lives. This appeal by Father followed.

MODIFICATION OF CUSTODY

Father first claims that the trial court erred in failing to grant him primary physical custody of the children because Mother's proposed move to Texas constituted a change in circumstances that was not in the best interest of the children. In child custody matters, an appellate court gives deference to the trial court's assessment of what serves the best interest of the child and that judgment will not be disturbed on appeal unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Suffian v. Usher, 19 S.W.3d 130, 135-136 (Mo. banc 2000); Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Thomas v. Thomas, 989 S.W.2d 629, 633 (Mo.App. W.D.1999). A trial court's determination in a child custody proceeding is given greater deference than in any other type of case. Suffian, 19 S.W.3d at 136; Brandow v. Brandow, 18 S.W.3d 584, 587 (Mo. App. W.D.2000). The evidence and inferences drawn therefrom are viewed in a light most favorable to the judgment. Suffian, 19 S.W.3d at 136. The judgment of the trial court will not be disturbed unless the welfare of the child requires some other disposition or the judgment is manifestly erroneous. Brandow, 18 S.W.3d at 587; Hicks v. Hicks, 969 S.W.2d 840, 843 (Mo.App. W.D.1998).

A trial court may not modify a prior custody decree under section 452.410 unless it finds, on the basis of facts that have arisen since the prior decree, that a change has occurred in the circumstances of the child or his custodian and that modification is necessary to serve the best interest of the child. § 452.410.1, RSMo 2000; Mobley v. Phillips, 942 S.W.2d 399, 400-401 (Mo.App. W.D.1997). The party awarded custody in the prior decree is presumed to be a suitable custodial parent, and the party seeking to change the custody arrangement bears the burden of proof. Mobley, 942 S.W.2d at 401. Remarriage and a new spouse's acceptance of employment in another state may constitute changed circumstances sufficient to modify custody. Newell v. Rammage, 7 S.W.3d 517, 521 (Mo.App. W.D.1999). The transfer of custody, however, must still be in the best interest of the child. Id.; McElroy v. McElroy, 910 S.W.2d 798, 803 (Mo. App. E.D.1995).

While Mother's relocation of the children to Texas constituted changed circumstances sufficient to modify custody, the record supported the trial court's determination that Mother's retention of primary physical custody of the children was in their best interest. The evidence showed that the primary concern of both parents is the best interest of the children. Although the evidence showed that Father regularly exercised his visitation with the children and frequently participated in their extracurricular activities, it also revealed that Mother has been the children's primary caregiver since their birth. According to Father's testimony, Mother is a good mother. And Mother's husband's new job in Texas will allow her to stay at home with the children when they are not in school. Father failed to overcome the presumption that Mother is a suitable custodian. The trial court's judgment that the best interest of the children required that Mother be allowed to retain primary physical custody was supported by substantial and competent evidence and was not against the weight of the evidence. The point is denied.

RELOCATION OF CHILDREN TO TEXAS

Next, Father claims that the trial court erred in permitting Mother to relocate with the children to Texas because (1) the court's judgment was against the weight of the evidence and not supported by substantial evidence and (2) Mother failed to notify him of her proposed relocation as required by section 452.377, RSMo 2000.

The judgment in this case was entered after this court's remand in Weaver v. Kelling, 18 S.W.3d 525 (Mo.App. W.D.2000)(Weaver I). In Weaver I, the trial court's judgment allowing Mother to relocate to Texas with the minor children was vacated, and the case was remanded with directions to employ the four-factor test, which was originally set out in Michel v. Michel, 834 S.W.2d 773, 777 (Mo.App. S.D.1992), to determine if the relocation served the best interest of the children. On remand, the trial court found that relocation was in the best interest of the children, and it made findings of fact and conclusions of law on the four-factor test. Again, the trial court permitted the relocation to Texas.

Recently, however, the Missouri 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 relocation if it was in the best interest of the child. Id. The amended statute now provides in relevant part:

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.

§ 452.377.9 and .10, RSMo 2000. The Court held that Michel's four-factor test is inconsistent with the statutory requirements of section 452.377 and shall not be used in determining the child's...

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19 cases
  • Abraham v. Abraham
    • United States
    • Missouri Court of Appeals
    • October 26, 2011
    ...[He] has not demonstrated he was prejudiced or was unable to prepare for the relocation hearing.” Id. at 209. In Weaver v. Kelling, 53 S.W.3d 610 (Mo.App.2001), the mother also failed to send the notice by certified mail as required by § 452.377.2. The father filed a motion to dismiss based......
  • Dunkle v. Dunkle
    • United States
    • Missouri Court of Appeals
    • March 29, 2005
    ...affected the trial court's ultimate custody decision. Fourth, Mother never sought to prevent the relocation. See Weaver v. Kelling, 53 S.W.3d 610, 616 (Mo.App. W.D.2001) ("The purpose of the notice provision of section 452.377 is to give a party entitled to custody or visitation of the chil......
  • MANTONYA v. Mantonya
    • United States
    • Missouri Court of Appeals
    • June 8, 2010
    ...to Collins would permit her to be a stay at home mom. Such evidence can weigh in favor of proposed relocation. Weaver v. Kelling, 53 S.W.3d 610, 613 (Mo.App.2001).6 However, mother presented no evidence to suggest that the only way she could be a stay-at-home mom was by relocating to Collin......
  • Meyer v. Block
    • United States
    • Missouri Court of Appeals
    • December 30, 2003
    ...must consider claimed changes of circumstances in light of the last order (in this case the dissolution decree). See Weaver v. Kelling, 53 S.W.3d 610, 613 (Mo.App.2001). For nearly four years after the dissolution, the parties had, by agreement, substantially changed the time the child spen......
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