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Mehler v. Martin

Court of Appeals of Missouri, Eastern District, Southern Division

June 10, 2014

PENNY (MARTIN) MEHLER, Respondent,
v.
KURT MARTIN, Appellant

Page 530

Appeal from the Circuit Court of Ste. Genevieve County. Honorable Robin E. Fulton.

FOR APPELLANT: Robert D. Huelskamp, Ste. Genevieve, MO.

FOR RESPONDENT: Jacquelyn S. Gonz, Ste. Genevieve, MO.

ROBERT M. CLAYTON III, Chief Judge. Gary M. Gaertner, Jr., J., and Philip M. Hess, J., concur.

OPINION

Page 531

ROBERT M. CLAYTON III, Chief Judge

Kurt P. Martin (" Father" ) appeals the judgment of the trial court modifying custody and child support for his minor children with Penny M. Martin Mehler (" Mother" ). We affirm in part and reverse and remand in part.

I. BACKGROUND

Mother and Father's marriage was dissolved in February 2005. In the original dissolution judgment, the parties were granted joint legal custody of their three minor children, E.M., A.M., and C.M., with sole physical custody to Mother and visitation to Father. Father was ordered to pay $300 per month in child support to Mother. In 2006, Mother remarried, and subsequently moved from Ste. Genevieve to Eureka. Mother testified at the modification hearing that she and Father had an oral agreement allowing her to relocate with the minor children to Eureka. According to Mother, Father changed his mind about the agreement after she had entered into a lease on a house in Eureka. Father filed a motion to modify custody as a result of Mother's move, and Mother filed a cross-motion to modify. The trial court ultimately entered an extensive judgment modifying custody and child support. The court granted sole legal custody to Mother, modified Father's visitation, and increased Father's monthly child support to $1,000. The court also ordered Father to pay $12,500 to Mother for her attorney's fees. Finally, the court ordered Father to complete an anger management therapy course. Father now appeals.[1]

II. DISCUSSION

Father presents nine points on appeal. Several of Father's points relate to Mother's relocation to Eureka and several relate to the modification of custody and child support as a result of the move. In the interest of clarity, we consider the multiple related points together below.

A. Standard of Review

We review this court-tried case under the standard set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Hightower v. Myers, 304 S.W.3d 727, 731-31 (Mo. banc 2010). We will affirm the court's judgment of modification unless there is no substantial evidence to support the judgment, the judgment is against the weight of the evidence, or the court erroneously declares or applies the law. Id. We view the evidence and all inferences therefrom in the light most favorable to the judgment. Id. at 732. In addition, we give the trial court even greater deference in custody matters than in other matters. Id. We will not reverse a trial court's decision regarding custody unless it is manifestly erroneous and the best interests of the children require a different result. Abernathy v. Meier, 45 S.W.3d 917, 922 (Mo. App. E.D. 2001).

Page 532

B. Modification

The basis for the present appeal is the trial court's judgment of modification. Father makes several claims of error concerning the trial court's findings regarding Mother's " relocation." To the extent Mother's move to Eureka constituted a factor in the trial court's decision to modify visitation and legal custody, we consider these points below.

1. Notice of Relocation

In several of his points on appeal, Father's claims of error center upon Mother's failure to provide him with written notice of her relocation as required by Section 452.377 RSMo (2000).[2] Specifically, in point eight on appeal Father contends the trial court erred in holding verbal notice of relocation was sufficient. Father's arguments on appeal in points one, five, and six, also center on Mother's failure to provide him with written notice.

Pursuant to Section 452.377.2, notice of the proposed relocation of a minor child shall be given " in writing by certified mail, return receipt requested, to any party with custody or visitation rights." Pursuant to the statute, a parent desiring to relocate a minor child is not required to file any motion seeking permission to do so. Herigon v. Herigon, 121 S.W.3d 562, 566 (Mo. App. W.D. 2003). Instead, Section 452.377 provides for a procedure triggered by the notice of a proposed relocation. Id. Once proper notice is given, unless the non-relocating parent objects to the relocation, the residence of the child may be moved sixty days after the notice without court intervention. Section 452.377.7. The failure to provide proper notice can be considered in a modification of a prior custody decree pursuant to Section 452.410. Section 452.377.12.

Here, it is undisputed that Mother did not provide Father with written notice by certified mail. Mother testified they had an oral agreement regarding her move to Eureka, which Father denied. Father filed his motion to modify as a result of Mother's relocation to Eureka, and the trial court considered the evidence of Mother's lack of statutory notice in its modification of custody, as allowed for in Section 452.377.12. As the trial court properly concluded, Mother's failure to provide written notice, as set forth in Section 452.377, is not determinative in the present case. Mother's failure to provide written notice as required by the statute is relevant only to Mother's claim of an absolute right to relocate under Section 452.377. See Allen ex rel. Allen v. Gatewood, 390 S.W.3d 245, 249-50 (Mo. App. W.D. 2013) (mother could not claim absolute right to relocate absent strict compliance with notice requirements of Section 452.377.2). Mother is not claiming an absolute right to relocate in this case. If a parent does not have the absolute right to relocate, based upon Section 452.377, the parent may still relocate by order of the trial court. Id. In such a case, the party seeking to relocate must show the relocation is made in good faith and in the best interest of the child. Id. (citing Section 452.377.9). Here, Mother did not have the absolute right to relocate due to her lack of notice; however, absent the statutory notice, Mother could seek to have the trial court approve the relocation upon consideration of her good faith request and the best interests of the minor children. In addition, Father was not denied the opportunity to object to Mother's move to Eureka. To the contrary, as discussed in depth below, there was considerable evidence presented concerning Mother's desire to relocate the children, as well as whether such a move served the best interests of

Page 533

the children. Point eight on appeal is denied.

2. Good Faith

In point one on appeal, Father contends the trial court erred in finding Mother's request to relocate was made in good faith. He argues Mother's true motive to move the minor children was to deprive him of contact with the children. This argument is wholly without merit.

The trial court found Mother sought relocation to be closer to her new husband's job following the foreclosure on their home in Ste. Genevieve. The court also noted other factors, including an improvement to the minor children's quality of life, supported the conclusion that Mother's request to relocate was made in good faith. There was ample evidence in the record to support the court's findings in this regard. No evidence was presented to support Father's contention that Mother was attempting to relocate to deprive him of meaningful contact with the minor children. Point one on appeal is denied.

3. Best Interests

In point four on appeal, Father claims the trial court erred in finding relocation was in the best interests of two of the three minor children.[3] Father argues the factors considered by the trial court favored Father, and the trial court considered Mother's best ...


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