Court of Appeals of Missouri, Western District, First Division
from the Circuit Court of Boone County, Missouri The
Honorable Sue Murvin Crane, Judge
James Edward Welsh, P.J., Anthony Rex Gabbert, and Edward R.
Ardini, Jr., JJ.
Edward Welsh, Presiding Judge.
Ashton ("Father") appeals the circuit court's
judgment dismissing his motion objecting to Diana
Ashton's ("Mother's") proposal to relocate
their minor children. We vacate the judgment.
parties' marriage was dissolved in December 2011. They
were awarded joint legal and joint physical custody of their
two children, with specific periods of parenting time to
each. The parties later agreed to modify the original
parenting plan so that each would have the children two
overnights during the week and alternating weekends. The
agreement was incorporated into a judgment of modification
dated November 14, 2014.
March 12, 2016, Mother e-mailed Father stating that she
intended to relocate the children to St. Louis on April 1,
2016, and to enroll them in school there. She mentioned the
upcoming termination of her maintenance and stated that
she hoped to find full-time work in St. Louis. Mother also
stated that the sale of her home was set to close on April
1st. She noted that, because the sale "happened so
quickly, I was unable to provide you with the statutory sixty
day advance notice." She proposed that Father have
custody of the children every other weekend with no
overnights during the week and no change to the summer and
e-mailed Mother back the next day objecting to the proposed
relocation. He stated that he had not received a certified
letter (as required by the applicable statute) and that
"sending an email less than 30 days before you intend to
move the kids is not acceptable." Father proposed that
Mother could relocate, that the children could "stay
with [him] for the remainder of the school year, " and
that she could "have them on . . . alternating
weekends." He stated that, if he did not hear back from
her, "I'll assume we're going with the plan I
4, 2016, Father filed a motion seeking an order from the
circuit court prohibiting the proposed relocation. He
objected that the move is not in the children's best
interests, because it: (1) will "greatly impact"
their ability to have frequent and meaningful contact with
him, (2) will cause a "significant disruption" in
the children's lives by requiring them to move from the
only community and school they have ever known, and (3) is
solely for Mother's benefit. Alternatively, Father asked
the court to modify the existing parenting plan to grant him
"primary parenting time, affording Mother alternating
weekends, and allowing the minor children to remain and
attend school in Boone County."
filed a motion to dismiss Father's motion as untimely.
She alleged that "written notice was provided by regular
and certified mail to [Father's] last known address"
on March 9, 2016. She claimed that the letter sent by
regular mail was not returned and, thus, was "presumed
received, " but she acknowledged that Father did not
claim the certified letter. Mother stated that her March 12
e-mail "contain[ed] the same information as the two
letters previously mailed" and that she, therefore, had
provided adequate notice. Citing Baxley v. Jarred,
91 S.W.3d 192, 205 (Mo. App. 2002), Mother claimed that,
because Father did not file his motion within the required
thirty days after receiving her purported "notice,
" she had "an absolute right" to relocate the
children's residence sixty days after providing notice.
2016, the circuit court held a hearing on Mother's motion
to dismiss. The circuit court ultimately sustained
Mother's motion and dismissed Father's motion with
raises four points on appeal. Our resolution of his first
point requires us to vacate the circuit court's
judgment. In Point I, Father contends that the
circuit court erred in dismissing his motion objecting to the
relocation because Mother's notice of her intent to
relocate did not comply with the applicable statutory
circuit court's grant of Mother's motion to dismiss
is a question of law which we review de novo.
See City of Lake Saint Louis v. City of
O'Fallon,324 S.W.3d 756, 759 (Mo. banc 2010);
D.A.N. Joint Venture, III v. Clark,218 S.W.3d 455,
457 (Mo. App. 2006). In assessing the propriety of a
dismissal, we review the grounds raised in the motion to
dismiss. In re Estate of Austin,389 S.W.3d 168, 171
(Mo. banc ...