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DeFreece v. DeFreece

February 26, 2002

RICKI DEE DEFREECE, RESPONDENT,
v.
SHAWN ERIC DEFREECE, APPELLANT.



The opinion of the court was delivered by: Joseph M. Ellis, Judge

Appeal From: Circuit Court of Nodaway County, Hon. Glen Alan Dietrich

Citation:

Opinion Vote: AFFIRMED.

Smart, Jr., P.J., and Lowenstein, J., concur.

Opinion:

Shawn Eric DeFreece ("Father") appeals from the trial court's amended judgment dissolving his marriage to Ricki Dee DeFreece ("Mother"). Father challenges the trial court's decision to grant Mother primary physical custody of the parties' son, Dylan John DeFreece ("Dylan").

Father and Mother were married on October 17, 1998. Their only son, Dylan, was born on July 3, 1998. The couple lived at a farmhouse near Ravenwood, Missouri, on property that was owned by Father's family. Father worked at Loch Sand and Concrete. Mother worked at Heilig-Meyers furniture store but quit that job after Dylan was born to operate a daycare out of the home.

On June 15, 2000, Mother filed a Petition for Dissolution of Marriage. During this time, Mother began making arrangements to move to Baxter, Iowa, to be closer to her family. Mother secured a job in Iowa as a collection counselor at Principal Residence Mortgage, a job which provided health insurance for Dylan. She made arrangements to rent an apartment and to place Dylan in daycare during the workday. Mother testified that Father had agreed that, when she moved to Iowa, she would have primary custody of Dylan. The day before she and Dylan were scheduled to move, Father asked to spend some time with Dylan. Father told Mother that he was going to take Dylan with him on a day trip to Maryville, Missouri. Father never returned with Dylan. Mother stated that she visited the home of one of Father's friends and made numerous phone calls to his family members, but was unable to locate Father or Dylan. She left messages on Father's cell phone and on the home answering machine, but he did not return her calls. Mother moved to Iowa as she had planned. For one week, Father did not return Mother's calls or allow her to have any contact with Dylan, including on Dylan's second birthday.

After one week, Father agreed to let Mother see Dylan. Mother testified, however, that he only allowed her to see Dylan after she agreed to sign a temporary custody agreement that granted Father primary custody. The parties filed the Temporary Custody/Visitation Agreement with the trial court on July 7, 2000. While the document designated Mother as the primary physical custodian, the visitation schedule actually provided that Dylan would reside primarily with Father and spend alternating weekends with Mother. *fn1

The trial court entered its judgment dissolving the parties' marriage on February 5, 2000. The judgment awarded Father and Mother joint legal and physical custody of Dylan, but provided that Dylan would reside primarily with Mother in Iowa. The parenting plan provided that Father would have visitation on alternating weekends and for one week during the months of June, July and August. The agreement also set out a rotating holiday schedule.

On February 20, 2001, Father filed a Motion to Reopen and Modify Judgment; or in the Alternative, Motion for New Trial. The trial court denied the motion on February 28, 2001, and issued its Amended Judgment of Dissolution of Marriage, which changed the holiday visitation schedule in the parenting plan by granting Father visitation during certain holidays in even-numbered years instead of odd-numbered years. Father brings this appeal.

We will affirm a trial court's determination of custody unless there is no substantial evidence to support it, it is against the weight of the evidence or it erroneously declares or applies the law. Edmison ex rel. Edmison v. Clark, 988 S.W.2d 604, 607 (Mo. App. W.D. 1999). "An award of child custody should not be disturbed unless the trial court's ruling is clearly against the logic of the circumstances or is arbitrary or unreasonable and the appellate court is firmly convinced that the welfare of the child requires some other disposition." Lee v. Lee, 967 S.W.2d 82, 86 (Mo. App. W.D. 1998).

In his first point, Father claims the trial court erred in applying the law. He asserts that it was error for the trial court to award primary physical custody of Dylan to Mother, who resides in Iowa, without first determining that the relocation was in Dylan's best interest and without making findings of fact consistent with section 452.377, RSMo 2000. *fn2

Section 452.377.9 requires a party seeking to relocate a minor child's principal residence to prove that the proposed move is made in good faith and is in the child's best interest. Father claims the court was required to apply the four-factors previously set forth in the case law and enunciated in Sadler v. Favro, 23 S.W.3d 253, 258 (Mo. App. W.D. 2000) to determine whether the relocation was in Dylan's best interest. However, the Supreme Court overturned the rule in Sadler, holding that the four-factor test should no longer be used, pursuant to a 1998 amendment to section 452.377. *fn3 Stowe v. Spence, 41 S.W.3d 468, 469 (Mo. banc 2001); Romanetto v. Weirich, 48 S.W.3d 642, 645 (Mo. App. W.D. 2001). As stated in Stowe, the four-part test enunciated in Sadler "is inconsistent with these statutory requirements and shall not be used in determining the child's best interests." Id. "Accordingly, the four-part test is no longer applicable to determining the propriety of the trial court's decision to allow a parent to relocate with a child to another state." Romanetto, 48 S.W.3d at 646. The statute "now requires the court to determine that the relocation: (1) is in the best interests of the child, (2) is made in good faith, and (3) if ordered, complies with the requirements of subsection 10." Stowe, 41 S.W.3d at 469. Subsection 10 of section 452.377 states the following:

If relocation is permitted:

(1) The court shall order contact with the nonrelocating party including custody or visitation and telephone access sufficient to assure that the child has frequent, continuing and meaningful contact with the nonrelocating party unless the child's best interest warrants otherwise; and

(2) The court shall specify how the transportation costs will be allocated between the parties and adjust the child support, as appropriate, considering the costs of transportation.

Section 452.377 is most frequently applied to cases where the parties are already bound by a court-ordered custody agreement, and the parent with primary custody seeks to change the child's residence and thereby alter the visitation plan. See e.g. Spire, 36 S.W.3d 28, 30 (Mo. App. W.D. 2000); In re S.E.P. v. Petry, 35 S.W.3d 862, 865-66 (Mo. App. W.D. 2001); Boling v. Dixon, 29 S.W.3d 385, 387-88 (Mo. App. W.D. 2000); Romanetto v. Weirich, 48 S.W.3d 642, 644-45 (Mo. App. W.D. 2001); Sadler, 23 S.W.3d at 254-55. But see Seaman v. Seaman, 41 S.W.3d 889, 892-96 (Mo. App. W.D. 2001) (applying the factors from section 452.375 and section 452.377 to an initial custody determination, where the judgment awarded primary custody to Mother and allowed Mother to remove children to Nebraska). The typical scenario is one where a divorced parent with primary custody decides that he or she wants to relocate and, as required by section 452.377, provides notice to the other parent of his or her desire to change the child's primary residence. See Sadler, 23 S.W.3d at 256.

The other parent then objects to the relocation and, pursuant to the statute, files a motion seeking an order to prevent the relocation. Id. The party seeking to relocate then has the burden of proving that the relocation is in the best interests of the child and that the request is made in good faith. Id. at 256-57.

In the case at bar, the trial court was faced with the task of making an initial custody determination and not a motion to modify custody. "[A] different standard is applied when making an initial custody determination than when determining whether to modify custody." Edmison, 988 S.W.2d at 608. "[T]he initial determination of custody is made based on consideration of the eight factors set out in Section 452.375, not based on who happens to ...


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