Wightman v. Wightman

Decision Date22 September 2009
Docket NumberNo. ED 91738.,ED 91738.
Citation295 S.W.3d 183
PartiesTanya WIGHTMAN, k/n/a Tanya Giovanni, Appellant, v. Michael WIGHTMAN, Respondent.
CourtMissouri Court of Appeals

Rufus James Tate, Jr., St. Louis, MO, for Appellant.

Christopher M. Braeske, St. Louis, MO, for Respondent.

ROY L. RICHTER, Judge.

Tanya Wightman Giovanni ("Mother") appeals the trial court's judgment granting Michael Wightman's ("Father") motion to prevent relocation as well as his motion to modify child support, and ordering Mother to pay the majority of the guardian ad litem fees. Mother also appeals the trial court's judgment ordering her to pay Father's attorney's fees on appeal. We reverse and remand for further proceedings.

I. BACKGROUND

Father and Mother's marriage was dissolved in 2005. There were two children born of the marriage, a boy in November 2002 and a girl in March 2004 ("the children"). The judgment of dissolution granted Mother sole legal and physical custody of the children subject to Father's visitation and ordered Father to pay Mother $812 per month in child support. Father's regular visitation included every other weekend from Saturday to Sunday and Wednesday evenings from 4:30 p.m. until 7:00 p.m. Both Mother and Father lived in St. Louis at the time of dissolution.

Father filed a motion to modify child support in July 2007.1 His motion alleged that that he was currently making substantially less than he was at the date of dissolution and that Mother's income had increased.

One month later, August 2007, Mother notified Father via letter that she intended to relocate to North Carolina with the children and her husband, Dwight Giovanni ("Stepfather"). Mother stated she needed to move because her income in St. Louis was being reduced and because Stepfather had better job opportunities in North Carolina. Father filed a timely motion to prevent relocation and an accompanying affidavit which alleged that Mother's relocation should be prohibited because: (1) her reason for relocation—a decrease in income—was speculative and unfounded; and (2) relocation would prevent Father from having frequent and meaningful contact with the children.

In February 2008, a trial was held on Father's motions to prevent relocation and to modify child support. Following the trial the court entered judgment prohibiting the children from relocating to North Carolina with Mother. The court sustained Father's motion to modify child support and reduced his support obligation from $812 to $442 per month. Finally, the court assessed $1,974 of the additional GAL fees to Mother (70%) and $846 to Father (30%). After a short hearing in October 2008, the court granted Father's motion for attorney's fees on appeal, and ordered Mother to pay Father $15,000 for his appellate legal fees. Mother appeals.

II. DISCUSSION

Our review of a court-tried case is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Fohey v. Knickerbocker, 130 S.W.3d 730, 733 (Mo. App. E.D.2004). We will affirm the judgment unless there is no substantial evidence to support the trial court's decision, the decision is against the weight of the evidence, or the trial court's decision erroneously declares or applies the law. Murphy, 536 S.W.2d at 32; Fohey, 130 S.W.3d at 734. We view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the verdict and we disregard all contrary evidence. Fohey, 130 S.W.3d at 734.

In her first point on appeal, Mother argues that the trial court erred in finding that it was not in the children's best interests to relocate to North Carolina. She asserts that the trial court's judgment is against the weight of the evidence and is not supported by substantial evidence. We agree.

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 interests of the child. Section 452.377.9 RSMo 20002; Fohey, 130 S.W.3d at 734. In making its best interests determination, the trial court looks to the factors enumerated in section 452.375.2. Disputes concerning the relocation of a child must be resolved on their particular facts. Fohey, 130 S.W.3d at 734.

In reaching its decision the trial court found that Mother had made her request in good faith but that relocation would not serve the children's best interests. The court did not believe that the children would benefit economically, educationally, or socially from the move, and found that Mother "has no reason to move besides a desire to move."

With regards to finances, the trial court found no evidence aside from Mother's testimony to indicate that she experienced a decrease in income in St. Louis. Mother is a personal injury attorney and the court believed she could earn a better living as an attorney in Missouri or Illinois where she has contacts rather than in North Carolina where she has none. The trial court stated that Stepfather would earn only $684 more per year working at the North Carolina Kinko's store than he would at the St. Louis location, and felt that the additional income would not substantially improve the family's financial situation.

First, we note that a parent is not required to show that relocating will prove economically beneficial to the child. Ratteree v. Will, 258 S.W.3d 864, 870 (Mo.App. E.D.2008) (stating that "[w]hile economic benefit can be a factor weighing in favor of relocation, a parent is not required to show it in order to be permitted to relocate"). Even so, the trial court's findings on this issue are against the weight of the evidence. Mother testified that she had been unable to find a full-time attorney position in Missouri. She stated that in the fall of 2006 her employer, Alif Williams ("Mr. Williams"), told her that he could no longer afford to pay her a salary. As of the trial date, Mr. Williams had begun paying Mother on an hourly basis, $32 per hour, for individual jobs only when he needed her. While Mother's search for other attorney positions in the St. Louis area had proved unfruitful, she had interviewed twice with a personal injury attorney in North Carolina. Thus, Mother's testimony indicated that, at the time of trial, she actually had more promising job prospects in North Carolina than in Missouri.

The trial court's finding that Stepfather's income would increase by only $684 per year at the Raleigh, North Carolina Kinko's is only partially correct. Mother testified that Stepfather's starting salary at the Raleigh Kinko's would roughly equal what he had earned in St. Louis. However, the Raleigh store presented promotion opportunities that the St. Louis store did not. Mother further testified that Stepfather had been assured he would move up the pay scale quickly in Raleigh and soon be earning much more than he had in St. Louis. Thus, even though Mother was not required to prove that the children would economically benefit from the move to North Carolina, the trial court's finding to the contrary was against the weight of the evidence.

The trial court then found that it served the children's best interests to remain in St. Louis in close proximity to their extended family. The trial court attached little or no weight to the fact that Mother has several relatives living within one hour of Raleigh and it stated that the children have had little contact with them over the years. The court emphasized the fact that Mother's two brothers, sister-in-law, and their children live in the St. Louis area, as do Father's parents, brother, and sister. The court found that the children have a good relationship with these St. Louis relatives.

The fact that the children will miss out on time with their extended family in St. Louis does not make the North Carolina move against their best interests. See Ratteree, 258 S.W.3d at 870 (stating that "it was not against the weight of the evidence for the trial court to find that despite the deprivation of Grant's time with his Father and extended family in St. Louis, it was in Grant's best interests to relocate"). Furthermore, our courts recognize that, in today's highly mobile society, it is unrealistic to confine a parent to one geographic location. Id.

In addition to Mother's grandmother, uncle and cousins, all of whom live within one hour of Raleigh, Mother's mother plans to move to North Carolina with the family and help with the children. Furthermore, Mother testified that the children have a very good relationship with Stepfather and that the four of them do things together as a family. While the children may miss time with their Father and extended family in St. Louis, the fact that they will maintain close relationships with the family unit favors relocation. This situation is similar to Dorman v. Dorman, 91 S.W.3d 167 (Mo.App. W.D.2002), wherein the court found that the child's relationship and interaction with "those persons who may significantly affect his best interests, namely his stepfather and half-sister, weighs in favor of relocation." Id. at 173.

The trial court then found that Father would be shut out of the children's lives if they were to move to North Carolina because visits would not take place. The court apparently believed that Mother would prevent Father from visiting with the children because it noted elsewhere in its judgment that Father had consistently exercised his visitation though Mother had occasionally kept the children from him. This finding is not supported by substantial evidence.

Father did testify that Mother had kept the children from him approximately twelve times during the two years since the dissolution. Mother, however, presented evidence that Father had failed to exercise his visitation rights twenty-one times, and that on one occasion he voluntarily went twenty-seven days without seeing the children. Mother testified that she has only denied Father visits because the children were either sick or on vacation, and that Father knew of...

To continue reading

Request your trial
10 cases
  • Pearson v. Koster
    • United States
    • Missouri Supreme Court
    • July 3, 2012
    ...In re D.O., 315 S.W.3d 406, 408 (Mo.App. S.D.2010); Andrews v. Andrews, 290 S.W.3d 783, 788 (Mo.App. E.D.2009); Wightman v. Wightman, 295 S.W.3d 183, 187 (Mo.App. E.D.2009); West v. Dir. of Revenue, 297 S.W.3d 648, 650 (Mo.App. S.D.2009) (before Scott, C.J., Lynch, P.J., and Rahmeyer, J.); ......
  • Elnicki v. Carraci
    • United States
    • U.S. District Court — Eastern District of Missouri
    • May 27, 2014
    ...prevent the parent from escaping responsibilities to the family by deliberately or voluntarily reducing income.” Wightman v. Wightman, 295 S.W.3d 183, 190 (Mo.App.E.D.2009). A parent “underreports” his or her income “where the parent may be sufficiently employed, but has hidden the true ext......
  • Elnicki v. Carraci
    • United States
    • Missouri Court of Appeals
    • May 27, 2014
    ...prevent the parent from escaping responsibilities to the family by deliberately or voluntarily reducing income.” Wightman v. Wightman, 295 S.W.3d 183, 190 (Mo.App.E.D.2009). A parent “underreports” his or her income “where the parent may be sufficiently employed, but has hidden the true ext......
  • Kohl v. Kohl
    • United States
    • Missouri Court of Appeals
    • April 2, 2013
    ...is against the weight of the evidence, or the trial court's decision erroneously declares or applies the law.” Wightman v. Wightman, 295 S.W.3d 183, 187 (Mo.App. E.D.2009). “We view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the verdict and we ......
  • Request a trial to view additional results
1 books & journal articles
  • Section 20.10 Guardian ad Litem
    • United States
    • The Missouri Bar Family Law (2014 Supp) Chapter 20 Trial Practice
    • Invalid date
    ...In determining the GAL’s fees, a court may consider the circumstances that necessitated the appointment of the GAL. Wightman v. Wightman, 295 S.W.3d 183 (Mo. App. E.D. 2009). In Davis, 210 S.W.3d 494, the trial court’s decision to allocate 83% of the GAL’s total fees of $4,800 to the father......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT