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August 24, 1993


APPEAL FROM THE CIRCUIT COURT OF HOWELL COUNTY. Honorable David P. Evans, Associate Circuit Judge

Crow, Flanigan, Prewitt

The opinion of the court was delivered by: Crow

In this appeal we deal with events that occurred after December 28, 1990, when the trial court modified a July 5, 1988, decree dissolving the parties' marriage. The parties are Dennis R. Lowe and Karen M. (Lowe) Brotherton. For convenience, we henceforth refer to them by their respective first names.

The 1990 modification was appealed by Dennis. The outcome is reported in Brotherton v. Lowe, 819 S.W.2d 74 (Mo.App. S.D. 1991). The decision there left the younger of the parties' two children, Shelly Lowe (born May 25, 1977), in the primary custody of Karen. Primary custody of the parties' older child, James Lowe (born October 31, 1973), awarded to Dennis by the 1990 modification, was not in issue on appeal.

The present dispute arose when Karen, on April 27, 1992, filed a motion to change the residence of Shelly from Mountain View, Missouri, to the state of Minnesota. Karen's motion alleged her husband, Richard Brotherton, *fn1 had accepted employment there.

Dennis responded with a motion seeking transfer of primary custody of Shelly from Karen to him, together with child support for Shelly. Dennis' motion pled, inter alia, that Shelly had expressed a preference to reside with him and to remain in the school system she had attended since kindergarten.

Karen answered Dennis' motion with a request that the child support being paid her by him for Shelly be raised.

The issues were tried August 14, 1992. With commendable dispatch, the trial court filed an order August 31, 1992, which (a) transferred primary physical custody of Shelly from Karen to Dennis, (b) granted Karen six weeks' "summer visitation" with Shelly each year and one week during the Christmas holiday season, and (c) directed Karen to pay Dennis $260 per month child support for Shelly.

Karen appeals. The first of her two points relied on complains the trial court erred in awarding Dennis primary custody of Shelly.

The trial court's order contains comprehensive findings of fact, including these:

In July of 1992, the minor child, her mother, step-father and step-brother moved to the State of Minnesota from the State of Missouri. The move was against the wishes of the minor child, who had been a lifetime resident of the Mountain View, Missouri area, and had developed many friendships in that community. Both sets of grandparents, her father and brother continue to live in the Mountain View area. The minor child was active in track, volleyball, basketball and choir in the Mountain View schools.

Unfortunately, since the [1990 modification], the relationship between mother and child has continued to deteriorate. At the present time, little communication exists between Shelly and her mother, except for arguments and fights. Shelly states she has no relationship with her mother and step-father, and that she is treated like a prisoner in her own home. Since moving to Minnesota, Shelly has been denied all access to the telephone. She is not allowed to return phone calls from her father. The phone remains unhooked, and hidden in her mother's room behind a locked door. The minor child is allowed no access to her mother's room. She is not allowed to write family or friends or receive letters. states she does not like Shelly's attitude after visiting with her father, and is punishing the child for misbehaving.

The minor child states a strong desire to live with her father in Mountain View, Missouri, and attend the Mountain View school. The minor child states her grades have deteriorated since she has been living with her mom. The minor child is adamant that she cannot and will not continue to live with her mother. She states she loves her father and wants to live with him.

The Court finds that the move to Minnesota was primarily made to defeat and frustrate [Dennis'] visitation, and the practical effect of the move is to deprive contact between father and child. The Court finds the move to Minnesota would not be in the child's best interest. . . . has been active in caring for the child. He is described as a good cook and housekeeper, and a loving father. The minor child participated actively in school activities in Mountain View, and was well adjusted in the community. The minor child has many friends and family in the Mountain View community. The move to Minnesota will not provide a realistic opportunity for visitation and interaction by with the minor child, and the Court believes that is more likely than to encourage visitation if he is awarded custody.

The trial transcript, which we have carefully read, comprises 261 pages. Additionally, ten exhibits offered by Karen and eight exhibits offered by Dennis were received in evidence. We have studied each exhibit.

The statement of facts in Karen's brief consists of four paragraphs containing a total of 28 lines. Nowhere in the statement of facts is there a page reference to the transcript. That is because the few "facts" set forth in the statement of facts occurred before the 1990 modification. No ...

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