Wild v. Holmes, 62818
Decision Date | 08 February 1994 |
Docket Number | No. 62818,62818 |
Citation | 869 S.W.2d 917 |
Parties | Franciska WILD, Petitioner/Appellant, v. Thomas HOLMES, Respondent/Respondent. |
Court | Missouri Court of Appeals |
John P. Heisserer, Kathleen A. Wolz, Cape Girardeau, for petitioner/appellant.
Walter S. Drusch, Cape Girardeau, for respondent/respondent.
In a motion to modify, mother, primary custodian 1 of child born January 11, 1989, sought: (1) permission to remove the child from Missouri to Ohio, and (2) additional child support. The trial court denied permission to remove child. Although the trial court increased the child support, it awarded less than the presumed child support amount.
Mother appeals. We affirm the denial of permission and reverse and remand the child support determination. 2
For her first point, mother contends that the trial court erred in denying her permission to remove the minor child from Missouri because "the court's action unreasonably restricts the economic mobility of [mother] and because the order is against the weight of the evidence or alternatively misapplies the Missouri law in that all of the recognizable factors for determining the propriety of relocation indicate that such a move in this case would be consistent with the best interest of the minor child."
In this court-tried matter, our review is limited. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We set aside a trial court's judgment only if we have "a firm belief that the decree or judgment is wrong." Id. On conflicting evidence, we are required to defer to the trial court. Id.
Further, it is the prerogative of the trial court to determine the credibility of the witnesses. Rule 73.01(c)(2). The trial court is granted broad discretion, and we will affirm its judgment even if there is evidence which would support a different conclusion. American Family Mut. Ins. v. Huddelson, 765 S.W.2d 721, 722 (Mo.App.E.D.1989).
Here, mother's evidence was sufficient to justify the trial court granting her permission to remove child. Mother, age 24, had been unemployed for approximately five months. She had sought employment in the Cape Girardeau area; however, the openings she knew of paid only $15,000 to $16,000. She obtained a job in Ohio as a restaurant manager. Her starting salary was $18,000, and she expected a raise to $28,000 in a few months. Father believed that the move to Ohio was mother's effort to earn a good salary and help provide for the child.
Mother had found a three-bedroom apartment in an apparently nice neighborhood. She had arranged for a nanny and had pre-enrolled child in a Baptist preschool.
On the other hand, father's evidence opposing the move was sufficient to justify the trial court's denial of permission. During the first five months of child's life, father had child overnight every other night, as well as every other weekend. After that, mother wanted child every night, so father had child two evenings a week from 5 to 8 and every other weekend until mother moved to Ohio.
Mother's proposed move is a nine hour drive from Cape Girardeau. Father does shift work on a 28-day rotation; every other weekend, he is off three days. To visit child on those weekends, husband estimated the cost of each trip at $300 to $400.
The parents of both mother and father, and other close relatives, live in the Cape Girardeau area. No relatives of child live in Ohio.
Mother relies primarily on Michel v. Michel, 834 S.W.2d 773 (Mo.App.S.D.1992). In Michel, the court recognized four factors as "particularly relevant in determining the propriety of a relocation by a custodial parent." Id. at 777. We apply those factors here.
First, the prospective advantages of the move in improving the general quality of life for the custodial parent and child. Economically, parent and child would be better off if the move were permitted. Whether the general quality of life would improve in other areas is debatable, but nothing indicates it would diminish. This factor favors mother.
Second, the integrity of the custodial parent's motives in relocating. Nothing impugns mother's motive; she seeks to improve her financial condition. This factor favors mother.
Third, the integrity of the noncustodial parent's motives for opposing relocation, and the extent to which it is intended to secure a financial advantage with respect to continuing child support. Father's apparently strong connection with his son appears to be his motive for opposing relocation.
There was, at best, conflicting evidence concerning any attempt by father to secure a financial advantage. Mother's only testimony on this issue related to her initial conversation with father about the move. After telling father of her proposed move, mother said father replied: Father did not remember making these statements, but stated "I might have."
Concerning child support, father testified that mother said she "was going to ask the judge to drop all child support." Father told her that was not fair; mother told him "just to come up with a figure." He offered to pay $150 per month instead of the $234 he was paying. Also, father said that mother told him that she had asked her attorney to drop the request for additional child support. Mother did not challenge this testimony. Overall, this factor favors father.
The fourth factor concerns the realistic opportunity for visitation which can provide an adequate basis for preserving and fostering the noncustodial parent's relationship with the child if relocation is permitted. Realistically, considering father's working conditions and income, as well as the distance involved, father's visitation would be severely curtailed. This factor favors father.
As our review indicates, the entire four factors favor neither mother nor father. As a result, we do not have "a firm belief that the decree or judgment is wrong." Point denied.
For her second point, mother alleges the trial court erred in making a specific finding that she violated § 452.377 3 because "the statute only requires that the petitioning parent seek permission for removal within 90 days, which all parties admitted [mother] had done and because in any event, [father's] counsel waived the time limitation in open court."
In its findings of fact, the trial court stated,
Section 452.377 provides:
A person entitled to custody of a child shall not change the residence of the child to another state or remove the child from this state for a period of time exceeding ninety days except upon order of the court or with the written consent of the parties with custody or visitation rights....
Mother filed her motion to remove the child on March 18, 1992. She moved to Ohio on April 17, 1992. The trial court conducted its hearing on July 8, 1992. At the hearing, mother's attorney raised this issue:
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