Amick v. Smart

535 S.W.3d 368
CourtMissouri Court of Appeals
DecidedMay 5, 2017
DocketNo. SD 34623
StatusPublished

This text of 535 S.W.3d 368 (Amick v. Smart) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Amick v. Smart, 535 S.W.3d 368 (Mo. Ct. App. 2017).

Opinion

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 Chattanoo[370]*370ga, 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 the relocation notice did comply with the provisions of the statute.

The judgment of the trial court will be affirmed “so long as it is supported by substantial evidence, is not against the [371]*371weight of the evidence, and does not erroneously declare or apply the law.” Baxley v. Jarred, 91 S.W.3d 192, 196 (Mo. App. W.D. 2002). “In our review, we view the evidence and any reasonable inferences drawn therefrom in the light most favorable to the trial court’s judgment.” Herigon v. Herigon, 121 S.W.3d 562, 565 (Mo. App. W.D. 2003). “Judging credibility and assigning weight to evidence and testimony are matters ‘for the trial court, which is free to believe none, part, or all. of the testimony of any witnesses.’” Kester v. Kester, 108 S.W.3d 213, 218 (Mo. App. S.D. 2003) (quoting Love v. Love, 72 S.W.3d 167, 171 (Mo. App. S.D. 2002)).

Section 452.377 provides the procedure which must be followed when a custodial parent relocates the principal residence of a child. Gaudreau v. Barnes, 429 S.W.3d 429, 432-33 (Mo. App. E.D. 2014). The parent seeking to relocate must give written notice to the non-relocating parent of the proposed relocation. Allen ex rel. Allen v. Gatewood, 390 S.W.3d 245, 249 (Mo. App. W.D. 2013). The notice must be given in writing by certified mail at least sixty days in advance of the proposed relocation and must provide “[t]he intended new residence, including the specific address and mailing address, if known, and if not known, the city”; “[t]he home telephone number of the new residence, if known”; “[t]he date of the intended move or proposed relocation”; “[a] brief statement of the specific reasons for the proposed relocation of a child, if applicable”; and “[a] proposal for a revised schedule of custody or visitation with the child, if applicable.” § 452.377.2(l)-(5) (emphasis add,ed). A child may ]be relocated without permission of the court or the non-relocating parent after this notice is provided to the non-relocating parent unless the non-relocating parent “files a motion seeking an order to prevent the relocation within thirty days after receipt of .such- notice.” § 452.377.7. This is because “[t]he non-relocating parent waives any objection to the, relocation by failing to object in a timely manner[.]” Dent v. Dent, 248 S.W.3d 646, 648 (Mo. App. E.D. 2008).

Here, Mother’s relocation notice complied with the requirements of the statute. Although Mother did not provide a specific address, that information is required only “if known.” § 452.377.2(1).

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Related

Dent v. Dent
248 S.W.3d 646 (Missouri Court of Appeals, 2008)
Kester v. Kester
108 S.W.3d 213 (Missouri Court of Appeals, 2003)
Herigon v. Herigon
121 S.W.3d 562 (Missouri Court of Appeals, 2003)
Baxley v. Jarred
91 S.W.3d 192 (Missouri Court of Appeals, 2002)
Love v. Love
72 S.W.3d 167 (Missouri Court of Appeals, 2002)
Marriage of Abraham v. Abraham
352 S.W.3d 617 (Missouri Court of Appeals, 2011)
Allen ex rel. Allen v. Gatewood
390 S.W.3d 245 (Missouri Court of Appeals, 2013)
Gaudreau v. Barnes
429 S.W.3d 429 (Missouri Court of Appeals, 2014)

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Bluebook (online)
535 S.W.3d 368, Counsel Stack Legal Research, https://law.counselstack.com/opinion/amick-v-smart-moctapp-2017.