Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ashton v. Ashton

Court of Appeals of Missouri, Western District, First Division

February 28, 2017

DIANA MARIE ASHTON, Respondent,
v.
CHRISTOPHER MICHAEL ASHTON, Appellant.

         Appeal from the Circuit Court of Boone County, Missouri The Honorable Sue Murvin Crane, Judge

          Before James Edward Welsh, P.J., Anthony Rex Gabbert, and Edward R. Ardini, Jr., JJ.

          James Edward Welsh, Presiding Judge.

         Christopher Ashton ("Father") appeals the circuit court's judgment dismissing his motion objecting to Diana Ashton's ("Mother's") proposal to relocate their minor children.[1] We vacate the judgment.

         Background

         The 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.

         On 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[2] 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 holiday schedules.

         Father 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 spelled out."

         On May 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."

         Mother 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.[3] 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.

         In June 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 prejudice.

         Discussion

         Father raises four points on appeal. Our resolution of his first point requires us to vacate the circuit court's judgment.[4] 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 provisions.

         The 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.