Fuchs v. Fuchs

887 S.W.2d 414, 1994 Mo. App. LEXIS 931, 1994 WL 241630
CourtMissouri Court of Appeals
DecidedJune 7, 1994
DocketNo. 18990
StatusPublished
Cited by12 cases

This text of 887 S.W.2d 414 (Fuchs v. Fuchs) 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
Fuchs v. Fuchs, 887 S.W.2d 414, 1994 Mo. App. LEXIS 931, 1994 WL 241630 (Mo. Ct. App. 1994).

Opinion

PER CURIAM:

In its decree dissolving the marriage of Rhoda Gayle Fuchs (Wife) and Robert B. Fuchs (Husband), the trial court awarded primary physical custody of their child, William Thornton Fuchs (Will), to Wife but denied her request that they be permitted to move to Mississippi. Wife’s sole contention on this appeal is that the trial court erred in denying her that permission.

Wife, who was originally from Meridian, Mississippi, met Husband when they were students at the University of Mississippi. After graduating from law school, Husband eventually returned to his home town of Sikeston, Missouri, to practice law. The parties have lived in Sikeston since their marriage in April 1977.

[415]*415The parties were unable to have a child and in 1984 commenced what became a mul-ti-year medically-assisted investigation into the cause. After approximately eleven visits to a clinic in Virginia, Husband and Wife were able to conceive a child which resulted in the birth of Will on October 6, 1990.

Shortly after Will’s birth, it was discovered that Wife had unlawfully converted more than $175,000 from the bank by whom she was employed. She was subsequently charged in federal court with embezzlement, to which she pled guilty. The court departed from the sentencing guidelines and sentenced her to serve four months at a facility in Farmington, Missouri, followed by four months’ home confinement and three years’ supervised probation. She was also ordered to make restitution, which was accomplished with $90,000 from the sale of the parties’ marital home as well as money from her father, which was partially a loan and partially a purchase of her interest in a family farm.

The parties separated in September 1992, and Wife filed this dissolution of marriage action the following month. Both before and after the filing of this action, Wife spent a considerable amount of time in Meridian, Mississippi, with her family.

Wife contends that, because of her conviction, it would be difficult to find employment in southeast Missouri. She testified that she had two job offers in Meridian, Mississippi, including one which would utilize her teaching certificate. She planned to move into an apartment in Meridian one block from the home of her parents, who had offered to assist her in any way necessary. Husband, however, contends that Wife’s moving to Meridian with Will would unduly interfere with his ability to further develop a meaningful relationship with his son. He also contends that Wife’s request to move to Mississippi stems from her desire to run away from the consequences of her criminal acts.

The trial court found that it was in the best interests of Will that Wife be awarded primary physical custody and that Husband be awarded temporary physical custody at times specified in the decree. In doing so, the court found that “the best interests of the minor child require that he be in the primary physical custody of Wife if, and only if, she remains in the State of Missouri; otherwise, the best interests of the minor child will be served in the primary physical custody of Husband.” The court also found that ‘Wife is not currently employed and, in the opinion of the Court, because of her criminal conviction, is not immediately capable of earning an income sufficient to support herself in the State of Missouri.” The court later amended that finding to read: Wife is not currently employed and, in the opinion of the Court, because of her criminal conviction, is not immediately capable of earning an income sufficient to support herself in Southeast Missouri. However, in the opinion of the Court, Wife did not demonstrate that she cannot find suitable employment in Southeast Missouri; i.e., Wife did not demonstrate a need that could not be met in the home community.” The court also included the following language in its decree:

Husband has requested “meaningful contact” with the minor child, which, in the opinion of the Court, is in the best interests of the minor child and will be thwarted by removal of the minor child from Southeast of [sic] Missouri, for the Court agrees with Husband that he has not been treated fairly by Wife with respect to the minor child since the parties’ separation, and therefore, in the opinion of the Court, whether intentionally or unintentionally, Wife’s removal of the minor child from Southeast Missouri will undermine the minor child’s relationship with Husband.

Our review of such cases is governed by Rule 73.01(c), Missouri Rules of Court, as construed in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Under these principles, the trial court’s judgment will be sustained unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. In re Marriage of Fry, 827 S.W.2d 772, 775 (Mo.App.S.D.1992); In re Marriage of Turner, 764 S.W.2d 160, 161 (Mo.App.S.D.1989).

Paraphrased, Wife’s sole point on this appeal is that the trial court’s judgment was in error because it was not supported by [416]*416substantial evidence, was against the weight of the evidence, and was based on erroneous application and construction of the law. She places considerable emphasis on Michel v. Michel, 834 S.W.2d 773 (Mo.App.S.D.1992), where this court held that the trial court misapplied the law in denying a mother’s request to move, with the parties’ two minor children, to Alabama. In Michel, the court noted that four factors have been recognized as particularly relevant in determining the propriety of a custodial parent’s relocation:

1. The prospective advantages of the move in improving the general quality of life for the custodial parent and child.
2. 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).
3. 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, and
4. 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.

Id. at 777. See also Wild v. Holmes, 869 S.W.2d 917, 919 (Mo.App.E.D.1994).

Wife’s mother and father (a retired physician) live in Meridian, Mississippi, where she was raised. It is not unusual that she would want to return to that area to start a new life. Living in a different geographical area would likely minimize the stigma which Wife and Will would experience from her conviction. Additionally, while Wife did not produce evidence that she had attempted to find employment in southeast Missouri, it is reasonable to expect that she would experience some difficulty in that regard. To say that her employment opportunities would not be affected is to ignore the obvious.

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Bluebook (online)
887 S.W.2d 414, 1994 Mo. App. LEXIS 931, 1994 WL 241630, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fuchs-v-fuchs-moctapp-1994.