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Amick v. Smart

Court of Appeals of Missouri, Southern District, First Division

May 5, 2017

ROBERT OLIVER PETER JOHN AMICK, Petitioner-Appellant,
v.
STEPHANIE G. SMART, Respondent-Respondent.

         APPEAL FROM THE CIRCUIT COURT OF PHELPS COUNTY Honorable Mark D. Calvert

          MARY W. SHEFFIELD, C.J.

         Robert Oliver Peter John Amick ("Father") appeals from the trial court's judgment modifying visitation under a parenting plan revised after relocation. The judgment adopted a proposed joint parenting plan which Stephanie G. Smart ("Mother") had attached to the relocation notice she provided to Father. In his sole point relied on, Father claims the trial court misapplied the law when it granted the motion to modify the parenting plan because Mother's relocation notice did not strictly comply with Section 452.377.[1] Father's claim is without merit because Mother's notice of relocation did comply with the statute. The trial court's judgment is affirmed.

         Factual and Procedural Background

         In June 2009, Father was adjudged to be the biological father of P.A.S. ("Child"). The parties were granted joint legal and physical custody of Child, and Mother's residence was designated Child's principal residence for mailing and education purposes.

         On June 7, 2016, Mother sent a letter ("the relocation notice") by certified mail informing Father that she planned to relocate Child's residential address. Among its contents, the relocation notice stated Mother intended to relocate to Chattanooga, Tennessee, but did not have a specific address yet and the relocation would take place sixty days after Father received the notification. Enclosed with the letter was a revised joint parenting plan with changes in visitation. Father received the relocation notice and the proposed joint parenting plan on June 13, 2016, but filed no response.

         On July 27, 2016, Mother filed a motion to revise the parenting plan without a hearing under Section 452.377.6. On July 28, 2016, the trial court approved the proposed revised joint parenting plan without a hearing. Over the weekend spanning Thursday, August 4, 2016, to Monday, August 8, 2016, Mother moved with Child to Chattanooga, Tennessee.

         On August 8, 2016, Father filed a motion objecting to Mother's relocation notice and a separate motion to set aside the trial court's modification judgment. In his objection to Mother's relocation notice, Father argued the relocation notice did not comply with Section 452.377.2 because it did not state the specific mailing address for the proposed relocation and because it did not state the specific date of the proposed relocation.

         The trial court held a hearing regarding Father's motion to set aside the judgment in which the trial court specifically considered the sufficiency of Mother's relocation notice. Both Father and Mother testified at the hearing.[2]Father stated he received the relocation notice and the proposed joint parenting plan but the proposed joint parenting plan had a post-it note on it from Mother which said, "[w]e can discuss and change if needed." He asserted he objected to the proposed joint parenting plan. Mother testified that when she planned the move she was not certain of the exact address in Chattanooga where she was going to live. Her employer owned and managed rental properties, so while she was trying to find housing closer to Child's school, she always "knew that there would be a few houses that [she] could choose from." She did not decide on the exact address until a few days before she moved.

         The trial court denied Father's motion to set aside the judgment. It found Mother's relocation notice complied with Section 452.377 "in all respects" and determined Father's objections to Mother's proposed relocation were filed outside the thirty-day time limit provided by the statute. Father appeals.

         Discussion

In his sole point relied on, Father claims:
The trial court erred in granting Respondent's motion to revise the parenting plan and applicable visitation schedule and relocation of the minor child without a hearing, which was entered by a modification judgment on July 28, 2016, because the trial court misapplied the law, in that, the trial court required strict compliance by both parties with Section 452.377 RSMo, when in fact the notice given by Respondent did not strictly comply with said relocation statute.

         Because the relocation notice did not strictly comply with the statute, Father argues that the trial court misapplied the law in requiring his objection to the relocation to be timely filed. This argument is without merit because ...


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