Laurie (Woods) Stowe, Respondent, v. Donald Ray Spence, Jr., Appellant, Donald Ray Spence, Sr., and Barbara J. Spence, Appellants.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Southern District Case Style: Laurie (Woods) Stowe, Respondent, v. Donald Ray Spence, Jr., Appellant, Donald Ray Spence, Sr., and Barbara J. Spence, Appellants. Case Number: 23210 Handdown Date: 07/07/2000 Appeal From: Circuit Court of Dunklin County, Hon. Stephen R. Sharp Counsel for Appellant: Richard L. Schnake Counsel for Respondent: Kenneth C. McManaman Opinion Summary: None Citation: Opinion Author: PER CURIAM Opinion Vote: MODIFIED IN PART AND AFFIRMED AS AMENDED. Montgomery, P.J., Prewitt, and Barney, JJ., concur. Opinion: Donald Ray Spence, Jr., ("Father") and his parents, Donald Ray Spence, Sr., and Barbara J. Spence (collectively "Grandparents") appeal a Judgment of Modification, filed by the Circuit Court of Dunklin County on July 28, 1999, raising three points of trial court error. In its Judgment of Modification the trial court sustained Laurie (Woods) Stowe's ("Mother") application to change the residency of Father and Mother's minor daughter, Shelby Beaver ("Shelby"), from Missouri to Michigan. Additionally, the trial court found "that substantial and continuing changes of circumstance require that the [previous Order and Amended Judgment filed by the same court July 16, 1997] herein be modified concerning [Father's] and [Grandparent's] rights of visitation and temporary custody."(FN1) An appellate court must affirm the decree "unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law." In re Marriage of Daneshfar, 953 S.W.2d 95, 97 (Mo. App. 1997). "The trial court's decision is presumed correct, and the

appellant has the burden of showing error." Thomas v. Thomas, 989 S.W.2d 629, 633 (Mo.App. 1999). "As in other court tried cases, only evidence and reasonable inferences favorable to the judgment will be considered." Id. The appellate court defers to the trial court's determinations of credibility, viewing the evidence and permissible inferences therefrom in the light most favorable to the decree and disregarding all contrary evidence and inferences. See In re Marriage of Daneshfar, 953 S.W.2d at 97. That is because credibility of witnesses and the weight to be given their testimony is a matter for the trial court, which is free to believe none, part, or all of the testimony of any witness. See id.; Herbert v. Harl, 757 S.W.2d 585, 587 (Mo. banc 1988). Where no request is made under Rule 73.01(c) for findings of fact and conclusions of law, all the fact issues presented are to be considered as having been found in accordance with the result reached. See Rule 73.01(c)(FN2); In re Marriage of Daneshfar, 953 S.W.2d at 97. "The paramount concern in deciding requests to move a child from this state is the best interests of the child." Id. at 98. Accordingly, "[e]ach case involving the relocation of children must be resolved on the particular facts of the case rather than by rigid application of rules . . . ." Effinger v. Effinger, 913 S.W.2d 909, 912 (Mo.App. 1996). "Provisions to insure a relationship with both parents can be made without confining the residence of the custodial parent." Daneshfar, 953 S.W.2d at 99. "Moving a child to another state may be permitted, even though visitation may be made more difficult." Id. The determination of the trial court in regard to child custody cases is granted greater deference than in other types of cases. See In re Marriage of Turner, 5 S.W.3d 607, 609 (Mo.App. 1999). "An appellate court will not disturb a trial court's custody award unless it is manifestly erroneous and the welfare of the child requires some disposition other than that made by the trial court." Id. In April of 1998, Mother asked Grandmother to keep Shelby and her other two children while Mother and her then- boyfriend Scott Stowe ("Scott") took a trip to Grand Rapids, Michigan. The purpose of the trip was to allow Scott to interview for a job. Grandmother testified that Mother did not inform her of the reason for the trip. On May 8 or 9, 1998, Mother married Scott, whom she had been dating for approximately two years. On May 18, 1998, Mother had a conversation with Father in which she informed him that she was moving with Shelby to Michigan and told Father that "he, his wife and [her] husband and [she], needed to discuss visitation and work something out." Thereafter, Father filed a Motion to Modify custody on May 20, 1998, seeking to obtain primary custody of Shelby. Mother resigned from her job as a nurse in mid-June, 1998. On July 15, Mother filed her answer and an "Application to Change Residency." Mother, Shelby and Scott moved to Michigan on or about July 21, 1998. On September 11, 1998, Grandparents filed a Motion to Intervene and a Motion for Contempt alleging that Mother had failed to allow them their ordered visitation periods. On November 19, 1998, a hearing was held on Father's motion to modify custody, Mother's application for change of

residency, and Grandparents' motion for contempt. At the time of the hearing, Parents and Grandparents had not seen Shelby since just before she first moved to Michigan. On December 30, 1998, Mother was charged with the Class D felony of child abduction, and entered an Alford plea(FN3) to this charge on April 16, 1999.(FN4) On July 28, 1999, the Dunklin County Circuit Court filed its Judgment of Modification. In its judgment, the court made, inter alia, the following orders modifying the custody of Shelby:

1. Legal custody of [Shelby] shall continue in [Mother], and [Mother] and [Father] are vested with joint physical

custody of [Shelby] and shall share time as follows: (a) [Shelby] shall be in the custody of [Father] for a period of ninety days during the summer. The period shall begin at noon on the first Sunday following the end of school where [Shelby] is enrolled and end at noon ninety days thereafter unless this would prevent [Shelby] from enrolling in and attending the beginning of the next regular school term. In such case, the ninety days would be shortened as determined by the school schedule. (b) [Shelby] shall be in the custody of [Father] commencing at 6 p.m. on the day following the commencement of Christmas vacation of the school where [Shelby] is enrolled and ending seven days thereafter. (c) [Shelby] shall be in the custody of [Father] commencing at 6 p.m. on the day following the commencement of spring/Easter vacation of the school where the child is enrolled and ending ten days thereafter or earlier to coincide with the school calendar. (d) If the school calendar requires a lessening of the time allotted for [Father] (and [Grandparents]) to be with [Shelby], those days shall be made up during weekends or other school holidays. (e) At all other times [Shelby] shall be in the custody of [Mother].

1. [Grandparents] shall have visitation at all reasonable times and places when [Shelby] is in the custody of

[Father].

1. [Mother] may elect whether she will deliver [Shelby] to the residence of [Father] for his periods of custody or

whether [Father] shall pick up [Shelby] at her residence. . . . If [Father] picks up [Shelby] from [Mother's] residence for his periods of custody, [Mother] shall pick up [Shelby] at [Father's] residence for her periods of custody. Discussion and Decision. I. In their first point, Father and Grandparents assert that the trial court erred in permitting Mother to move Shelby to Michigan because the move was not in Shelby's best interest. Father and Grandparents allege that the prospective advantages of the move for Mother and Shelby are not enough to outweigh the damage it would cause to Father's relationship with Shelby and that Mother's motives for moving are more suspect than Father's motives for opposing the move. Under section 452.377: A person entitled to the custody of a child shall not change the residence of the child to another state or remove the child from this state for a period of time exceeding ninety days except upon order of the court or with the written consent of the parties with custody or visitation rights.

§ 452.377. (FN5) It is clear from the cases that "[i]n our highly mobile society, it is unrealistic to inflexibly confine a custodial parent to a fixed geographical area, if removal to another area for reasons such as change of employment, remarriage, etc., is consistent with the best interest of the minor children." Thomas, 989 S.W.2d at 634. The factors to be considered by the trial court in determining whether the removal of a child from Missouri is in the child's best interest are, as follows:

1. The prospective advantages of the move in improving the general quality of life for the custodial parent and

child,

1. The integrity of the custodial parent's motives in relocating (whether primarily to defeat or frustrate visitation

and whether the custodial parent is likely to comply with substitute visitation orders),

1. The integrity of the noncustodial parent's motives for opposing relocation and the extent to which it is intended

to secure a financial advantage with respect to continuing child support,

1. The realistic opportunity for visitation which can provide an adequate basis for preserving and fostering the

noncustodial parent's relationship with the child if relocation is permitted. In re Marriage of Daneshfar, 953 S.W.2d at 98-99. "These factors are also relevant when considering the modification of custody in the relocation context." Lavalle v. Lavalle, 11 S.W.3d 640, 647 (Mo.App. 1999). Here, the trial court did not, and was not required to specifically set out the factors that it relied upon in granting Mother's application to relocate Shelby. See parallel discussion on awarding custody found in Edmison ex rel. Edmison v. Clarke, 988 S.W.2d 604, 608-09 (Mo.App. 1999). When a trial court is silent as to the factors considered in its determination, the presumption is that it considered all the evidence and made its award in the best interests of the child based on consideration of the relevant statutory factors, unless the record indicates otherwise. See id.; see generally Thomas, 989 S.W.2d at 633. The first factor to be considered is whether the prospective advantages of the move will improve the general quality of life for the parent and the child. See In re Marriage of Daneshfar, 953 S.W.2d at 98. The court of appeals has held that, "[w]hen the evidence does not indicate the move would diminish the quality of life of the parent and child, this factor favors the move." Lavalle, 11 S.W.3d at 647. The testimony indicated that Mother and her new husband moved to Michigan in order for new husband to take a job that would pay him ten to twenty thousand dollars more per year than the thirty thousand dollar a year job he had in Missouri. At the hearing, Mother likewise testified that in the nursing job she had acquired in Michigan she was working with Alzheimer's patients, something she had "always wanted to do and not had the opportunity in this area to do," and that she was paid $13.50 per hour. She testified that the nursing job she had in Missouri had paid only $9.00 per hour. (FN6) She also testified that there was not an Alzheimer's unit in Kennett, nor did she know of one near Kennett. Mother

testified that at the time of the hearing Shelby was enrolled in a kindergarten readiness program/daycare in Michigan; that "she ha[d] friends in school as well as at home"; and that while, at the time of the hearing, Shelby was too young to participate in scouting, she went with Mother to her half-sisters' scout meetings and Mother "plan[ned] on being Shelby's Daisy leader next year." Father argues that without presentation of figures as to the difference in the cost of living between Grand Rapids and Kennett, Mother's evidence concerning the increase in income between the two localities is meaningless. We disagree. While we cannot ascertain the precise level of economic advantage gained by the move, the evidence showing that both Mother and Scott will be making a substantially greater amount of money in Michigan than in Missouri convinces us that the move will result in some level of economic advantage. Considering the above and considering the proper deference granted the trial court in these cases, Thomas, 989 S.W.2d at 633, we find that the first factor favors Mother. The second factor is the integrity of the custodial parent's motive in relocating. See In re Marriage of Daneshfar, 953 S.W.2d at 98. Father points to Mother's Alford plea to the charge of child abduction and Father and Grandparents also assert that Mother has denied them visitation with Shelby since her move and has failed to return numerous phone calls. Father and Grandparents further point to Mother's failure to bring Shelby to Missouri when she appeared for the hearing despite the fact that Father had visitation scheduled the next day. Mother, on the other hand, denied that she attempted to keep Father and Grandparents from talking to Shelby on the phone and stated that she would have allowed visitation but that the parties couldn't agree on a place to meet to transfer Shelby. "Custody is determined by existing conditions." Bomar v. Kurtz, 951 S.W.2d 657, 662 (Mo.App. 1997). "Past conditions are material only to the extent that they clarify and cast light on existing conditions." Id. It appears to this Court that the contention between the parties over custody and visitation began after Mother decided to move to Michigan. Despite Mother's Alford plea to child abduction, little evidence in the record indicates that Mother's decision to move to Michigan was motivated by a desire to frustrate Father's visitation. This is consistent with the trial court's determination. In fact, the evidence showed that, prior to Mother's decision to move to Michigan, both Father and grandparents "fully" exercised their visitation. Father testified that they "missed" only one visitation but they called their attorney and the missed visitation was made up.(FN7) While the hard feelings between the parties over the move might suggest the possibility of some conflict in the future, Mother testified, and the trial court was entitled to believe, In re Marriage of Daneshfar, 953 S.W.2d at 97, that she recognized the importance of Shelby's relationship to Father and that she was willing to allow even more visitation than that granted under the original plan in order to change Shelby's residence to

Michigan. This second factor for consideration favors Mother. The third factor for consideration is the integrity of Father's motives for opposing relocation and the extent to which his opposition is intended to secure a financial advantage with respect to continuing child support. See id. at 99. It is clear that both Father and Grandparents care very deeply for Shelby and that a laudable concern for Shelby's well- being and a desire that she live close to them are their motivations for opposing the move. There is no evidence their opposition arises from economic concerns. We find the third factor favors Father. The fourth factor to be considered is the realistic opportunity for visitation which can provide an adequate basis for preserving and fostering Father's relationship with Shelby if she is permitted to move to Michigan. Seef0 id. at 99. As noted above, Mother was willing to allow Father greater visitation than originally awarded if it could be structured in such a way as to allow the move. Father complains that a switch in the pattern of visitation will destroy his ability to be active in Shelby's life in the same way he was before the move. While a switch in the pattern of visitation will change Father's relationship with Shelby, we do not think it true that Father will not be able to be active in Shelby's life in a meaningful way or that a new visitation schedule cannot provide an adequate basis for preserving and fostering his relationship with Shelby. "[R]emoval of the child from the jurisdiction should not be disallowed solely to maintain the existing visitation patterns." In re Marriage of Mayfield, 780 S.W.2d 139, 143 (Mo.App. 1989). Father also expresses concern with the fact that the ordered visitation plan is based in part on Shelby's school calendar and the fact that, while each party was ordered to make one of the trips in exercising rights to visitation, Mother was allowed to determine whether she would take Shelby to Missouri at the beginning of Father's visitation or pick her up at the end of Father's visitation. These concerns are the focal point of Father's third point on appeal as well. We believe these concerns have some validity and they will be addressed in our review of Father's third point. Having said that, we, nevertheless, believe that visitation can be structured to provide an adequate basis for preserving and fostering Father's relationship with Shelby, and find the fourth factor for consideration favors Mother. It is not necessary that all of the four factors previously discussed favor the party who was successful in the trial court. See In re Marriage of Daneshfar, 953 S.W.2d at 100. With three of the four factors for consideration favoring Mother, and the presumption that the trial court acted in Shelby's best interest, we are unable to conclude that the trial court's judgment permitting Mother to move Shelby to Michigan lacked substantial evidence to support it, was against the weight of the evidence, erroneously declared the law, or erroneously applied the law. Id. at 97. Appellant's first point is denied.

II. In his second point, Father complains that the trial court erred in "failing to modify the existing judgment to award custody of Shelby to Father, because there exists a change of circumstances such that it is in Shelby's best interests to change custody . . . ." Under section 452.410: [T]he court shall not modify a prior custody decree unless . . . it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child. § 452.410. We recognize that, "[i]n the abstract . . . the issue of whether a party should be granted permission to move a child from the state is separate from the issue of whether custody should be transferred from one party to another." Riley v. Riley, 904 S.W.2d 272, 276 (Mo.App. 1995). Nevertheless, the issues are intertwined. The reasons set out in Point One, showing substantial evidence supporting Shelby's change of residency to Michigan, also support the trial court's determination that Shelby's primary physical custody should continue with Mother. See Lavalle, 11 S.W.3d 647. Father's second point is denied. III. In his third point on appeal, Father complains that the trial court erred in its modification of Father's and Grandparents' visitation schedules "in that the trial court had no evidence of Shelby's present or future school calendar but nevertheless awarded visitation based on it, and because the award is an abuse of discretion, in that it allows Mother to control both the timing and the cost of its exercise . . . ." "The trial court has broad discretion in ruling on a parent's visitation privileges." In re Marriage of Colley, 984 S.W.2d 163, 171 (Mo.App. 1998). The trial court's judgment must be reversed if the visitation scheme does not serve the best interests of the child or if the court abuses its discretion in setting the visitation schedule. See id. We have previously laid out the pertinent provisions of the trial court's orders relating to Father's and Grandparents' visitation with Shelby. We cannot say that the trial court's judgment does not serve the best interests of the child or that the court abused its discretion in setting the visitation schedule as to Grandparents. See id.(FN8) However, we agree with Father that the trial court abused its discretion in allowing Mother "to control . . . the timing" of Father's exercise of his visitation rights. We also express a concern for the practicality of the trial court's provisions relating to the making up of Father's allotted periods of temporary custody when the school calendar requires a lessening of the time so alloted. Accordingly, pursuant to our powers under Rule 84.14, we make the following changes as to Father's visitation schedule.

See Coleberd v. Coleberd, 933 S.W.2d 863, 872 (Mo.App. 1996); Davies v. Davies, 887 S.W.2d 800, 805 (Mo.App. 1994). Paragraphs numbered 5 through 7 of the Judgment of Modification, and the included subparagraphs, are deleted and replaced with the following, new paragraphs 5(a) through (h), to-wit:(FN9) 5(a). Petitioner and Respondent are granted joint legal and physical custody of the minor child, with Petitioner exercising the primary physical custody of the minor. Respondent and Petitioner shall have periods of temporary physical custody of the minor child, as set out below. 5(b). Respondent shall have temporary physical custody of the minor child after the end of her regular school year where she is enrolled, commencing at noon on the first Sunday following the end of school. Except as further set out in 5(c), the minor child shall be returned to Petitioner's physical custody in Michigan no later than one week prior to the start of the next regular school term. Therefore, if the first day of the new school term is a Monday, Respondent's summer visitation will end at noon on the prior Monday. 5(c). Petitioner shall have temporary physical custody of the minor during a one-week period, either in the month of July or the month of August. In order to exercise this privilege of temporary custody of the minor, Petitioner shall give Respondent at least four week's notice of her election to do so. Such notice shall include the specific time of pick-up and return of the minor child. 5(d). Respondent shall have temporary physical custody of the minor child during the minor child's spring/Easter vacation from school. Respondent's period of temporary custody of the minor will commence at 6 p.m. on the day after classes are let out and end at noon on the day before classes are to resume. 5(f). Respondent shall have temporary physical custody of the minor child commencing at 6 p.m. on the day following the commencement of Christmas vacation of the school where the minor child is enrolled and ending seven days thereafter at 6 p.m. Should Respondent's period of temporary custody of the minor during spring/Easter vacation consist of less than six days, inclusive of Saturday and Sunday, the difference shall be added to Respondent's following winter/Christmas vacation period of temporary custody of the minor. 5(g). In the exercise of either parent's periods of temporary custody of the minor, Respondent or Petitioner, as applicable, will bear the responsibility for and the expenses associated with transporting the minor child.(FN10) Except as set out below, the location for the transfer of custody shall be each parent's place of residence or a mutually agreeable location. In the exercise of a parent's right of visitation/temporary custody, either parent may designate any third adult person or persons to pick up or return the minor child. Additionally, airplane transfer of the child is approved at the expense of the parent exercising that particular period of temporary custody, consistent with the requirements of the minor child's safety and welfare. In this event, the other parent shall cooperate in placing the minor in the aircraft at a point of departure or arrival, as appropriate, and such cooperating parent shall bear the expenses of ground transportation to and from the airport.

5(h). Intervenors shall have reasonable rights of visitation with the minor when the minor is in the temporary custody of Respondent, at such times and places as may be mutually agreed upon by Intervenors and Respondent. As hereby amended, the Judgment of Modification is affirmed. Footnotes: FN1.The earlier judgment, inter alia, declared that Donald Ray Spence, Jr., was the father of Shelby Beaver; awarded "primary care, custody and control of . . . Shelby" to Mother; made provisions for Shelby's support and medical

care; and awarded specific "temporary custody and visitation" to Father as well as specific "temporary custody and visitation" to Grandparents. FN2.All rule references are to Missouri Court Rules (2000), unless otherwise noted. FN3.See North Carolina v. Alford, 91 S.Ct. 160 (1970). FN4.On April 28, 1999, the motion court reopened the record and allowed evidence of Mother's Alford plea to be entered into evidence for consideration. The particulars of this charge do not appear in the record. FN5.All statutory references are to RSMo 1994, unless otherwise noted. FN6.This Court notes that if, for comparison purposes, we--very roughly--estimate Mother's yearly income before taxes by multiplying her hourly wage by forty hours a week and then by 52 weeks for the year, Mother would make approximately $28,080 per year at her job in Michigan, as compared to the $18,720 per year at her job in Kennett. FN7.There was no further evidence presented about the reason for the missed visitation. FN8.Note that "[g]randparental visitation is not on a par with parental visitation in custody matters." Komosa v. Komosa, 939 S.W.2d 479, 483 (Mo.App. 1997). FN9.When referring to this case's participants in the following new paragraphs, we shall use the designations used by the trial court in its Judgment of Modification. Therefore, Mother shall be "Petitioner", Father shall be "Respondent", Grandparents shall be "Intervenors" and Shelby shall be "the minor child" or "the minor." FN10.In other words, Petitioner will be responsible for picking up and returning the minor in conjunction with her week of custody during the summer. Father will be responsible for all other transportation except as set out below in connection with air travel. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.