Basler v. Basler

892 S.W.2d 749, 1994 Mo. App. LEXIS 1992, 1994 WL 714530
CourtMissouri Court of Appeals
DecidedDecember 27, 1994
Docket65638
StatusPublished
Cited by9 cases

This text of 892 S.W.2d 749 (Basler v. Basler) 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
Basler v. Basler, 892 S.W.2d 749, 1994 Mo. App. LEXIS 1992, 1994 WL 714530 (Mo. Ct. App. 1994).

Opinion

GARY M. GAERTNER, Judge.

Appellant, Mary Beth Lumpkin (“mother”), appeals from an order of the Circuit Court of the County of Ste. Genevieve modifying the parties’ decree of dissolution and transferring primary custody of the parties’ two minor children from mother to respondent, Gary Wayne Joseph Basler (“father”). We reverse.

The parties were married on November 5, 1977. On January 20, 1987, a decree of dissolution was entered in the Circuit Court of the County of Ste. Genevieve. The decree incorporates the separation'agreement of the parties, wherein it was agreed mother would maintain primary physical custody of the minor daughter, B.B., and the minor son, D.B., *750 during the school year, and father would gain primary physical custody of both children during the summer. The parties agreed to visitation by the noncustodial parent on alternate weekends and alternate holidays. Additionally, it was agreed father would pay mother $90.00 per child per month in child support for the nine months the children were in mother’s primary custody. Finally, paragraph 8 of the separation agreement states in pertinent part: “The parties further agree that a move by either parent to a point outside of Ste. Genevieve [sic] St. Francois County [sic] or Cape Girardeau County [sic] Missouri, shall constitute a sufficient change of circumstances to allow the Court to consider modifying these provisions regarding custody.”

In July, 1991, father filed a motion to modify the dissolution decree as to child custody. After a hearing on the motion, the court entered an order in November, 1991, finding no change of circumstances sufficient to warrant a change in custody.

In the spring of 1998, mother informed father she intended to move to Fulton, Missouri to reside with the man she was planning to marry. She planned to move B.B., D.B., and her two younger sons, D.S. and J.S. — her children by a boyfriend subsequent to her divorce from father — with her.

In August, 1993, father contacted mother and informed her B.B. and D.B. wanted to stay with him and attend school in Ste. Genevieve that year. Mother acquiesced, but told father she wanted the children to return to Fulton for the two weeks prior to the start of the school year so she could visit with them. Upon their return at the end of the summer, B.B. told mother she wanted to stay with mother in Fulton. D.B. stayed the two weeks, then moved to Ste. Genevieve. Shortly thereafter, father filed a motion to modify the dissolution decree, requesting primary custody of both B.B. and D.B.

A hearing was held on December 9, 1993. On January 31, 1994, the court issued its findings of fact, conclusions of law and order of modification of the decree of dissolution. The court found a change of circumstances sufficient to sustain father’s motion and transfer primary custody of B.B. and D.B. from mother to father. In addition, mother was ordered to pay child support of $320.00 per child per month for the nine months the children resided with father. This appeal ensued. 1

Mother raises one point on appeal. She contends the trial court erred in modifying the custody decree and transferring primary custody of B.B. and D.B. to father. She argues there was no evidence of a substantial and continuing change in circumstances sufficient to justify the transfer of custody.

We are governed here by the oft-cited principles of Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). We will affirm the judgment of the trial court if it is based upon substantial evidence, if it is not against the weight of the evidence, and if it is not based upon an erroneous interpretation or application of the law;. Id. at 32. We acknowledge that in child custody matters, the decision of the trial court is given greater deference than in other cases. Wilson v. Wilson, 873 S.W.2d 667, 670 (Mo.App.E.D.1994). Once custody has been originally adjudicated, there is a presumption the parent with custody remains suitable. Id. It is the responsibility of the parent requesting the change of custody to establish a change in circumstances of the child or custodial parent which is so significant as to directly affect the welfare of the child and warrant a change of custody. Id.

We find the record fails to support the trial court’s decision to transfer custody from mother to father. There was evidence that since the divorce, mother moved several times, requiring her children to change schools. However, all of the moves, until the move in the spring of 1993, resulted in residence in southeast Missouri. It was only mother’s most recent move which took her from southeast Missouri toward central Missouri. Although the parties’ separation agreement and, ultimately, the decree included the provision whereby a move by either party outside a three-county area could justify a change of custody, on the facts before us *751 we do not view mother’s move as a change of circumstances sufficient enough to warrant a change of custody.

We first note that although RSMo § 452.411 (Supp.1994) identifies a change of residence from one state to another as a change of circumstances which could support a court’s modification of a prior custody decree, nowhere is it indicated that a change from one Missouri county to another warrants the same or a similar result. In addition, this court has noted that “modern transportation, lifestyles, attitudes and improved enforcement of divorce decrees under the uniform laws have resulted in relaxation of the rather rigid standards of the past [associated with a custodial parent’s attempt to move from this jurisdiction].” Koenig v. Koenig, 782 S.W.2d 86, 89 (Mo.App.E.D.1989). Factors the court has considered in the past when determining whether a motion to remove a child from Missouri should be granted are: the length of the acquaintance between mother and her new husband; the extent of the discussion as to where the child will live and other living arrangements; and the extent of testimony as to the child’s relationship with the new step-father and his family. Wilson, 873 S.W.2d at 670. Notwithstanding the fact that mother’s move was not even out of the state, we also find a consideration of these factors supports mother’s continued custody of the children.

Although the record is unclear as to how long mother and Russ, her current husband and the step-father of B.B., D.B., D.S. and J.S., knew each other, mother testified they decided to marry in January of 1993. They eventually did marry in October of that same year and were married at the time of the hearing in December of 1993. It is obvious from this evidence that mother and Russ knew each other for a minimum of one year by the time of the hearing and had actually been married for two months at that point. Based on this length of time, it is apparent there is stability to this relationship.

Regarding the residence and other living arrangements, mother testified she and Russ own a “four-bedroom Cape Cod with a living room, dining room, a kitchen, and an attached ... two-car garage ...

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Bluebook (online)
892 S.W.2d 749, 1994 Mo. App. LEXIS 1992, 1994 WL 714530, Counsel Stack Legal Research, https://law.counselstack.com/opinion/basler-v-basler-moctapp-1994.