Wilson v. Wilson, 64401

• Decision Date: 12 April 1994
• Docket Number: No. 64401,64401
• Citation: Wilson v. Wilson, 873 S.W.2d 667 (Mo. App. 1994)
• Parties: Susan Gay WILSON, Petitioner/Appellant, v. Craig Allen WILSON, Respondent/Respondent.
• Court: Missouri Court of Appeals

Page 667

873 S.W.2d 667

Susan Gay WILSON, Petitioner/Appellant, v. Craig Allen WILSON, Respondent/Respondent.

No. 64401.

Missouri Court of Appeals,

Eastern District,

Southern Division.

April 12, 1994.

Malcolm H. Montgomery, Downs, Johnson & Montgomery, Cape Girardeau, for petitioner, appellant.

Craig M. Billmeyer, Patrick S. Butler, Finch, Bradshaw, Strom & Steele, L.C., Cape Girardeau, for respondent, respondent.

REINHARD, Judge.

Mother appeals an order of the circuit court granting father's motion to modify the decree of dissolution and denying her cross-motion to modify. We affirm in part and reverse in part.

The parties' marriage was dissolved in November 1988. They entered into a separation agreement and "Joint Custody Plan", both of which were made a part of the decree of dissolution. The agreements and court order granted mother primary physical custody of their son, Zachary. ¹ Father was ordered to pay child support and given visitation rights. The agreements further provided that mother could not move her permanent residence farther than 135 miles from Cape Girardeau without first obtaining written consent from father or prior court approval.

Four months prior to the dissolution decree, father started dating his present wife. They began living together shortly after the dissolution occurred, and were married in May 1991. They live in a new three bedroom home. Father and his present wife had a joint annual income of approximately $60,000 in 1992.

In the five years since the dissolution, mother has resided at four different locations in Cape Girardeau. The most recent residence is a two bedroom apartment, where Zachary shared a bedroom with his half-sister.

Mother began dating Phil Schmidt in the fall of 1989. They were briefly engaged and lived together for a period of time. ² The only evidence of domestic turbulence involving Zachary was an incident subsequent to the end of the relationship, when Schmidt returned and was extremely abusive of mother in front of Zachary. Mother called the police who, upon arrival, found a frightened Zachary hiding in a closet.

At the time of the dissolution, mother was a head teller at a bank in Cape Girardeau, earning slightly less than $17,000 annually. In July 1992, she was forced to resign following a disagreement with her supervisor over personnel policy. She has not applied for available teller positions, indicating the pay was insufficient. At the time of the hearing she was receiving unemployment compensation.

Occasionally, mother took trips, leaving Zachary overnight in the care of various people including her best friend and, prior to the abuse incident, Schmidt. This has occurred at least seven times.

Father complained that mother should have left Zachary with him on those occasions when she was away overnight. We note, however, he was unavailable on some of the occasions. He also alleged that his requests for additional visitation time were denied. Mother disputed that assertion.

Mother started dating her current boyfriend, Joseph Micek, (who she had met in 1975), in November 1992. Both thought it might lead to marriage. Micek, a resident of Rhode Island, has visited her in Missouri at least ten times. He is gainfully employed by United Airlines, but is unable to obtain a transfer to Missouri. He owned a home and rental property in Rhode Island. Mother wanted to move to Rhode Island with her two children. She had been offered a job there, but since she had no authority for the removal she turned the job down. She hoped that she would get the court's permission to move there, get employed and further her relationship with her boyfriend.

There was evidence that Zachary had a close relationship with father, mother and his half-sister. Each party corroborated the other's affection for Zachary.

On October 22, 1992, father filed a motion to modify the decree of dissolution asking that the joint custody plan be continued, but that he be granted primary physical custody. He alleged changed circumstances including: (1) his remarriage and ability to provide a stable home; (2) his continued employment at Proctor and Gamble and steady income sufficient to provide for the needs of Zachary; (3) mother's continuing unemployment; (4) mother's history of failed relationships, including two failed marriages and a broken engagement, which were indicative of an unstable lifestyle; (5) Zachary's increased desire to spend more time with father; and (6) father's desire to spend more time with Zachary.

Mother filed an answer and cross-motion to modify child support. She admitted changed circumstances, and asked for increased child support. Her allegations of changed circumstances included the increased cost of supporting Zachary and herself. In addition to requesting increased child support, she requested permission to remove Zachary to Rhode Island, where, she contends, there are better prospects for employment. She also noted that, in addition to Micek, her two brothers lived in Rhode Island.

After a hearing, the court denied mother's motion to remove Zachary to Rhode Island, and found that there were substantial and continuing changes "compelling modification which are in the best interests of the child."

The court noted that: (1) Zachary was very close to both father and mother; (2) father had displayed interest in Zachary and his activities; (3) father was gainfully employed, while mother was unemployed as a result of her unwillingness to accept available employment; (4) she had become unemployed because she refused to comply with the reasonable instructions of her supervisor; (5) father had a stable home and marriage; and (6) Zachary had developed a close relationship with father's extended family.

The court also noted mother's romantic relationship with Micek, commenting that while he is caring, intelligent, law abiding and mindful of the needs of Zachary, the relationship has led mother to spend time away from the child. Moreover, the court reasoned mother's relationship with Micek will: (1) necessarily lead mother to move to Rhode Island; (2) continue to divide her time and attention between Micek and her son; or (3) end without providing the stable home Zachary needs. The court granted legal and primary physical custody to father. The order required mother to pay child support and granted her visitation rights.

On appeal, mother contends the court erred in denying her request to remove Zachary to Rhode Island. The decision of the trial court will be affirmed unless: (1) it is unsupported by substantial evidence; (2) it is against the weight of the evidence; or (3) it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

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