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J.D.W. v. V.B.

Court of Appeals of Missouri, Eastern District, Third Division

June 30, 2015

J.D.W., et al., Respondents,
v.
V.B., Appellant

Appeal from the Circuit Court of the City of St. Louis. Honorable Elizabeth B. Hogan.

For APPELLANT: Lawrence G. Gillespie, Clayton, MO.

For RESPONDENT: John D. Kershman, Sr., St. Charles, MO.

OPINION

ROBERT G. DOWD, JR.

This appeal arises from a judgment in a paternity action addressing custody of and support for the minor child of V.B. (" Mother" ) and C.J.W. (" Father" ). We reverse and remand, in part, and affirm, in part.

Mother and Father were in a relationship for five years, but never married. They have one child, who was born in 2010 while they lived in Oklahoma. It is undisputed that Father is the child's biological parent. The family moved to Colorado for a year and then to Missouri in February 2012 so Mother could enroll in a program at a local university. She started taking prerequisite classes at a community college, but then had to quit so that she could work. In early 2013, Mother and Father ended their relationship. Mother indicated that she wanted to move back to Colorado with the child, and Father filed this paternity suit to establish his legal rights. Father sought joint legal and physical custody. Mother sought sole physical custody, with visitation to Father only on certain holiday and school breaks. This plan would have allowed her to move back to Colorado, where her family lived and where she claimed she wanted to continue her education.

The trial court considered Mother's wishes, but found that she had no specific plans for starting school and no job offers upon returning to Colorado other than her former hourly wage retail position. Thus, she would have to live with her parents in Colorado and, if she attended school there, would have to put the child in daycare four days of the week. The trial court noted that Mother has already once changed her mind regarding her education after moving across the country and that there are educational and employment opportunities in Missouri for Mother. The trial court also considered that Father did not want the child to move to Colorado because--despite his ability as an airline employee to fly himself and the child on stand-by for free--that distance would severely hamper his relationship with the child. Prior to the paternity action, Father saw the child every day and, during the proceedings, saw him twice a week. He had a stable job and was willing to make changes to his schedule to spend more time with the child. The child also saw his paternal grandparents almost every weekend. The trial court noted that Mother thought Father was addicted to computers and that the child suffered a bee sting while in Father's care.

The trial court concluded that joint legal and physical custody was in the child's best interest, after considering Mother's reasons for wanting sole custody as compared to the damage that her proposed move would do to the child's relationship with Father. The parenting plan ordered by the court gives each parent approximately equal amounts of time with the child. The trial court also designated Mother as the residential parent for mailing and education purposes provided she resides in the greater St. Louis, Missouri area. If she moves, then Father is automatically designated the residential parent. The trial court found that the presumed child support amount of $372 a month was not unjust or inappropriate and ordered Father to pay that amount to Mother. It also ordered that Father could take advantage of the child income tax exemption in even-numbered years. The trial court denied Mother's request for Father to pay her attorney fees on the grounds that she did not " make as much" as he did. This appeal follows.

In her first point, Mother claims that the trial court's refusal to award her sole physical custody is not supported by the evidence, is a misapplication of the law and is an abuse of the trial court's discretion. We disagree.

Mother construes the judgment as " forbidding" her from moving to Colorado. Although much of the trial court's language focuses on her proposed move and its impact on the child, nothing in the judgment actually prevents Mother from moving. To be certain, any such relocation would be subject to the requirements of Section 452.377 and would also likely necessitate a motion to modify under Section 452.410.1. The judgment also purports to automatically re-designate the residential parent if Mother moves, which we address in the next point. Thus, while Mother's relocation has consequences, it is not forbidden. Hence, Mother's reliance on case law--mostly from other states--for the proposition that a court may not restrict a custodial parent's residence is misplaced on this point.

Mother does not otherwise challenge the trial court's conclusion--or any of its findings in support thereof--that joint physical custody was in the best interests of the child. Rather, Mother's argument primarily revolves around what she believe is in her best interest--namely, moving back to Colorado where she is from and where her family resides. This is not the proper focus of a custody analysis. Our independent review of the record reveals that the trial court's conclusion that sole custody to Mother was not in the child's best interest was not erroneous. The trial court properly considered Mother's uncertain employment and educational plans for her proposed future in Colorado as compared to the severe impact moving would have on the child's relationship with Father. This is consistent with the policy of this State that both parents have " frequent, continuing and meaningful contact" with the child as long as it is in the child's best interest. Section 452.375.4.[1] Moreover, the trial court's findings--while not enumerated as such--indicate that it also considered all the factors in Section 452.375.2(1)-(8) that were relevant here.[2]

The determination of joint physical custody is supported by substantial evidence, is not against the weight of the evidence and does not misstate or misapply the law. See Thorp v. Thorp, 390 S.W.3d 871, 877 (Mo. App. E.D. 2013). Giving the trial court the great deference it is due, we cannot say that Mother has demonstrated an abuse of the court's discretion such that we are firmly convinced that the welfare of the child requires an alternative arrangement. See id.

Point I is denied.

In her second point, Mother argues that the trial court erred when it designated Mother as the " residential parent for mailing and educational purposes," provided that she " resides in the greater St. Louis, Missouri area." If Mother relocates, then the judgment purports to automatically re-designate ...


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