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June 23, 1983


From the Circuit Court of Butler County; Civil Appeal; Judge William C. Batson, Jr.

Modified on Court's Own Motion July 19, 1983.

Before Crow, P.j., Greene, C.j., Flanigan, Maus, JJ.

The opinion of the court was delivered by: Maus

The husband is the petitioner in this action that dissolved a marriage of eight years duration. Both before and after the husband moved from the family residence on June 9, 1981, the wife entreated the husband to continue their efforts to preserve the marriage. Initially, she denied the marriage was irretrievably broken. However, by her amended answer she admitted that fact. Following a hearing on the remaining issues, the trial court entered a decree dissolving the marriage. The decree also dealt with the financial aspects of that dissolution and custody of and support for the four-year-old son of the parties. The financial provisions of the decree will be hereafter noted. The trial court awarded custody of the child to the wife, subject to detailed provisions for visitation and temporary custody by the husband. Basically, under those provisions the husband was entitled to temporary custody for two days each week, for 60 days during the summer months and on alternate holidays.

However, the custody granted to the wife was made conditional. In general terms those conditions were that the wife continue to reside in Butler County so long as the husband continued to reside in Butler County. In the event the wife violated that condition or other provisions of the decree concerning custody or visitation or restrictions, custody of the child "shall be immediately transferred to the Petitioner." The condition was amplified by the following: "The Respondent, during any calendar year, may spend up to sixty (60) days either all at once or from time to time, away from Butler County with said child for purposes of vacations, holidays, emergencies and other matters that might normally cause her to visit another or travel to a county other than Butler or a state other than Missouri." In the decree the trial court recognized the wife's desire to move to her home state of Louisiana. However, it found removal from the jurisdiction would be detrimental to the child's welfare. The wife has appealed and presents four points of alleged error. A very brief summary of the factual background for the consideration of those points follows.

The parties were married on June 1, 1974 in Houston, Texas. Both were 27 years old. At that time the parties had but few assets. The husband was a medical student at Baylor University. The wife had a B.S. degree in Business Administration from the University of Southwest Louisiana. At the time of the marriage she was employed in marketing with Exxon.

Following the husband's graduation, they moved to Columbia, Missouri. There the husband completed his education in 1978. He was certified as a family practitioner in July 1979. The wife worked at Stephen's College and at a bank. In July of 1978 the parties moved to Poplar Bluff. The husband became associated with a clinic. The child was born on March 29, 1978. The wife has not been employed since that time. The husband's distributions from the clinic in round figures have been: 1978 - $30,000; 1979 - $53,000; 1980 - $95,000; 1981 - $140,000. 1981 was said to be an extraordinary year. His anticipated distribution for 1982 was $85,000-90,000. He did personally incur professional out of pocket expenses of approximately $4,000 per year.

The evidence concerning the personal relationship of the parties is sketchy. The husband described the wife as an inflexible, intolerant person. He said she had certain talents, for example, "she does pottery very well." She was of no help in financial planning and that was the source of many arguments. Undefined marital difficulties commenced in Columbia. After moving to Poplar Bluff, they participated in marital counseling for an extended period. The wife presented no evidence concerning the nature of the marital difficulties. The husband decided the marriage was over in May 1980, although he did not move from the home until June 1981.

In June 1980, he was introduced to a registered nurse at a local hospital. They were attracted to each other. The husband testified that he saw her regularly and that, since January 1981, they frequently engaged in sexual intercourse. No plans for marriage had been formulated, but he said, "She will still remain my friend." In May 1981, before the husband moved out, the wife asked him to try one more time. He agreed. But, over the next two and one-half weeks he became very depressed. He could not go on with the masquerade the marriage was going to get better. He observed it had not during counseling nor "in three years of trying during the residency to apply my skills."

The son, who was almost four years old at the time of trial, was described by the parties to be a very bright child. Each party sought custody. The father said he should have custody because the gifted child "needs somebody who is probably a little bit more skilled or professionally trained in fathering or parenting than perhaps the average father." He admitted the wife was a loving and caring mother but she had some personal problems dealing with such a creative child. He cited the fact the wife screamed at the child, "Why can't you make up your mind" when he had told her he wanted an egg and then said, "No, I want cereal; no, I want pancakes; no, I want waffles." The mother said she had observed other mothers and they all yelled at their children. She described her attention to the child as playing with him, playing with him with educational toys, reading to him and taking him outside and on walks. While on occasion she fussed at him, they always made up, and she related instances of his demonstration of affection for her. She characterized their relationship as "real good, real good." Neither party had any relatives in the Poplar Bluff area. The wife did not care to live in Poplar Bluff and planned to move to Louisiana in order that she and the son could be near her family.

The wife's first point is that the trial court erred in decreeing that the husband would be awarded custody of the child if she moved from Butler County or violated the decree concerning visitation or custody, as more fully heretofore set forth. The husband defends the provision by citing the need of the child for contact with both parents. The validity of this proposition in general cannot be disputed. Cissell v. Cissell, 573 S.W.2d 722 (Mo. App. 1978). But, even if valid, the provision in question is a drastic method to reach that result. The wife, as well as the husband, is entitled to consideration in the site of her employment and where she desires to live. It is understandable that she would not care to live in the community in which the separation occurred and in which the husband's friend resides. Provisions for a relationship with both parents can be made other than by confining the wife's residence to Butler County. In re Marriage of Bradford, 557 S.W.2d 720 (Mo. App. 1977).

This court has not been cited to, and independent research has not revealed, a decision in this state approving such a provision. In Elfrink v. Elfrink, 620 S.W.2d 386 (Mo. App. 1981), the parties stipulated the custodial mother would not move from a specified county. When the mother moved a considerable distance, the trial court modified the decree to award custody to the father. The court of appeals observed that there was no showing that modification was in the best interests of the children. The decree of the trial court was reversed.

The removal of a child to another state has been the subject of many decisions. Generally, such a removal is not favored when the practical effect of that removal will be to deprive the child of desirable contact with the non-custodial parent. Pelts v. Pelts, 425 S.W.2d 269 (Mo. App. 1968). However, such removal is not per se cause for modification. K R (S )D v. C D S , 646 S.W.2d 428 (Mo. App. 1983). It is one very important factor in determining if such a change in circumstances has occurred to cause modification of the custodial decree to be in the best interests of the child. § 452.410; In re Marriage of Griswold, 623 S.W.2d 560 (Mo. App. 1981); Knoblauch v. Jones, 613 S.W.2d 161 (Mo. App. 1981). "Jurisdictional problems and visitation privileges of a non-custodial parent are not insuperable obstacles when removal of a minor child to another state is at issue. . . . In our highly mobile society it would be unrealistic to inflexibly confine a custodial parent to a fixed geographical area if removal to another jurisdiction was consistent with the best interests of the minor child." In re Marriage of Bard, 603 S.W.2d 108, 109 (Mo. App. 1980). Factors to be included in a consideration of such modification have been discussed in many decisions. Pender v. Pender, 598 S.W.2d 554 (Mo. App. 1980); Girvin v. Girvin, 471 S.W.2d 683 (Mo. App. 1971). Similar factors would apply to a removal from southeast Missouri to Louisiana as apply to a removal from southeast Missouri to southwest Missouri. Elfrink v. Elfrink, supra.

Section 452.375.3 became effective after the decree of the trial court. That subsection specifically deals with the removal of a child from this state by a custodial parent. To a large extent that subsection is a codification of case law. Prior decisions may provide guidelines for the judicial approval of such removal as provided in that subsection. It has been held that a similar statute, under the doctrine of expressio unius est exclusio alterius, is evidence of a legislative intent that a court shall not have the power to order that ...

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