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Blankenship v. Porter

Court of Appeals of Missouri, Western District, First Division

October 7, 2014

CLAYTON LEE BLANKENSHIP, Respondent,
v.
HILARY ROSE PORTER, Appellant

Page 657

[Copyrighted Material Omitted]

Page 658

Appeal from the Circuit Court of Jackson County, Missouri. The Honorable Jack R. Grate, Judge.

Michaela Shelton, Overland Park, KS, Attorney for Respondent.

Jonathan Sternberg, Kansas City, MO, Attorney for Appellant.

Before Division One: Mark D. Pfeiffer, Presiding Judge, and Lisa White Hardwick and Karen King Mitchell, Judges.

OPINION

Page 659

Karen King Mitchell, Judge.

Hilary Porter (Mother) appeals from the trial court's judgment modifying parenting time and designating Father's (Clayton Blankenship) address as Child's residential address for educational and mailing purposes. Mother raises three points on appeal. First, Mother contends that the trial court erred in excluding, for lack of foundation, her Exhibits 20 and 21, images of Mother's mobile phone screen purportedly showing text message exchanges between the parties, as well as excluding testimony about what the exchanges stated, based on the " best evidence" rule. Second, Mother contends that the trial court erred in holding that she failed to meet her burden to prove her proposed relocation was in good faith. Third, Mother argues that the trial court erred in granting Father's motion to modify and transferring Child's residential custody[1] to Father because the court's decision was not in Child's best interests and was against the weight of the evidence. We affirm.

Factual and Procedural Background[2]

M.M.B. (Child) was born in 2008. His parents were never married. On February 2, 2012, Mother and Father were awarded joint legal and physical custody of Child, with Mother's address designated for mailing and educational purposes. At the time of the amended judgment, Mother lived in Ogden, Kansas, and Father lived in Independence, Missouri. The parties met in Topeka, Kansas, to transfer Child when a change in parenting time occurred.

On April 1, 2013, Mother filed her notice of intent to relocate her residence from Fort Riley, Kansas, to Fort Stewart, Georgia. Mother sent notice of her intent to relocate to Father by certified mail on March 29, 2013. The notice stated that she intended to relocate by the end of May 2013 because her husband had received orders for a permanent change of station from the United States Army, that Child would be attending Catholic school in the Savannah, Georgia, area, that Father's last " regular visit" would be the weekend of May 17, 2013, and that Father's parenting time would be reduced to approximately four weeks total visitation during two visits each year.

On April 10, 2013, Father filed a pro se family access motion, alleging that Mother had denied him parenting time over spring break 2013, and that she intended to deny him parenting time when she relocated in May 2013. On April 17, 2013, Father timely filed his motion and affidavit seeking to prevent Child's relocation.

On May 21, 2013, Mother filed a motion to modify. Without authorization, Mother relocated Child to Georgia on May 27, 2013.

Page 660

On May 30, 2013, Father filed a petition for writ of habeas corpus, stating that Mother relocated without his consent in violation of his right to court-ordered parenting time. The trial court granted the writ, set the matter for hearing on July 11, 2013, and ordered Mother to produce Child for the hearing.[3]

On June 6, 2013, Father and Mother appeared for a hearing on Father's family access motion. Contrary to the court order, Mother did not bring Child with her. The court overruled Father's family access motion because it was filed in April, before Mother had denied Father his summer parenting time.

On June 12, 2013, Mother filed an amended motion to modify parenting time, asking the court to adopt a long-distance parenting plan pursuant to her relocation, with Child residing primarily with her during the school year.

On June 23, 2013, Mother transferred Child to Father's custody. The trial court later quashed the writ of habeas corpus after no one appeared for the scheduled hearing.

On July 31, 2013, Father filed his motion to modify, requesting the trial court to change the designation of the mailing and educational address of Child to his address and to adopt his long-distance parenting plan, which had Child residing primarily with him during the school year. The trial court consolidated Father's motion to prevent relocation with Mother's and Father's motions to modify.

On October 30, 2013, the trial court entered the judgment of modification, in which it considered Father's motion and affidavit seeking to prevent relocation of the minor Child, his request for attorney fees contained in his petition for writ of habeas corpus and motion to modify, and Mother's amended motion to modify parenting time. The judgment overruled Mother's motion to modify and sustained Father's motion to modify, granted the parties joint legal and physical custody of Child, and designated Father's address as Child's residential address for educational and mailing purposes. The parenting plan entered by the court provided that Child shall reside with Father during the school year, with Mother having parenting time with Child the second weekend of each month, for extended weekends based on Child's school calendar, during spring break, all but two weeks during summer break, and alternating holidays and winter breaks.

Following the denial of her motions for new trial and rehearing, Mother appeals.

Analysis

Standard of Review

" We will affirm the trial court's judgment unless it is against the weight of the evidence, it is not supported by substantial evidence, or it erroneously declares or applies the law." Thomas v. Moore, 410 S.W.3d 748, 754 (Mo. App. W.D. 2013) (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)). " We view the evidence and all permissible inferences in the light most favorable to the judgment and disregard all contrary evidence and inferences." Querry v. Querry, 382 S.W.3d 922, 926 (Mo. App. W.D. 2012). " '[B]ecause the trial court is presumed to have acted in the best interests of the ...


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