In the Interest of S.E.P. v. Petry

35 S.W.3d 862, 2001 Mo. App. LEXIS 89, 2001 WL 49800
CourtMissouri Court of Appeals
DecidedJanuary 23, 2001
DocketWD 57829
StatusPublished
Cited by21 cases

This text of 35 S.W.3d 862 (In the Interest of S.E.P. v. Petry) 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
In the Interest of S.E.P. v. Petry, 35 S.W.3d 862, 2001 Mo. App. LEXIS 89, 2001 WL 49800 (Mo. Ct. App. 2001).

Opinion

ELLIS, Judge.

Appellant Mark Petry (“Father”) appeals from a judgment entered in the Circuit Court of Platte County, Missouri allowing Respondent Virginia Petry (“Mother”) to relocate with their minor children to the state of Florida and modifying Father’s visitation rights. The Court also ordered that Father and Mother equally share the costs of the appointed guardian ad litem.

Father and Mother were married on December 12, 1987. On May 3, 1988, the couple had a daughter, and on July 30, 1990, the couple had a son.

Sometime in 1991 or early 1992, Father filed a petition for divorce in the Circuit Court of Douglas County, Kansas. On May 26, 1992, the Circuit Court entered a Journal Entry of Divorce Decree dissolving the marriage. Pursuant to that divorce decree, Father and Mother were given joint legal custody of the children with Mother to retain primary physical custody. The Court awarded Father the following visitation:

Friday evening to Sunday evening on alternating weekends;
Two (2) months continuously in summer (not to begin until two weeks after the school year ends and ending not less than two weeks before school begins)
Every Wednesday evening from 6:30 p.m. to 8:30 p.m.;
Thanksgiving holiday each and every odd year;
Alternating birthdays;
Alternating major holidays.

According to the divorce decree, Father and Mother were to share transportation equally. The Court ordered Father to pay child support in the amount of $468 per month. This amount was reduced to $229 per month during the two months of summer visitation.

Soon after their divorce, Father and Mother both moved to the Kansas City area. When this case was filed, Mother was living in Parkville, Missouri, with the children, and Father was living in Shawnee, Kansas.

Mother works for Sprint PCS. In January of 1999, Sprint PCS began talking to Mother about relocating her to Florida and giving her a two-level promotion. Mother was promised a raise from $55,000 per year to $65,000 per year plus a bonus. Sprint PCS informed Mother that she *866 would not be able to move into a comparable position in the Kansas City area in the foreseeable future. Shortly thereafter, Mother informed Father that Sprint PCS had been attempting to entice her to relocate.

In March of 1999, Mother decided to accept the promotion and relocate to Florida. Mother called Father and told him that she was going to be relocating to Florida with the children.

On June 14, 1999, Mother filed a Motion to Modify Journal Entry of Divorce Decree as to Visitation in the Circuit Court of Platte County. 1 In that motion, Mother requested that she be allowed to move to Florida with the children and that the visitation schedule set forth in the original Journal Entry of Divorce be modified to accommodate that move. Mother asked the court to waive the required notice of the proposed relocation of the children’s residence required by § 452.377.2 due to exigent circumstances. Mother also requested that the court inquire into the stability of Father’s residence.

Also on June 14, 1999, Mother filed a Motion for Preliminary Injunction and a Motion for Temporary Restraining Order in the Circuit Court of Platte County, Missouri, asking the Court to prevent Father from exercising his visitation rights. The motions stated that Mother wanted visitation stopped because (1) on April 1, 1999, the children reported potential illegal drug use at the residence of Father, (2) the children reported being left unattended for long periods of time, and (3) the children feared for their safety while at Father’s residence. Along with the Motion for Preliminary Injunction, Mother filed a Motion for Appointment of Guardian Ad Litem to investigate these potential problems.

On June 14, 1999, the Circuit Court entered a temporary order restraining Father from removing the children from Mother’s custody. On June 30, 1999, the Circuit Court appointed a guardian ad li-tem to represent the children in the matter.

The Circuit Court conducted a hearing on Mother’s motions on August 11 and 13, 1999. On August 13, 1999, the Circuit Court entered an order granting Mother permission to relocate and remove the children from the State of Missouri to the State of Florida.

On September 20, 1999, the Circuit Court entered its Judgment of Modification. The Circuit Court found that it was in the best interest of the children to allow Mother to relocate to Florida with them. In addition, the Court modified the visitation schedule contained in the original divorce decree. The Court also reduced Father’s child support payments to $203 per month and ordered that the couple equally split the guardian ad litem’s fees of $4,123. Father challenges this judgment on appeal.

In his first point, Father claims that the Circuit Court erred in finding that relocating the children to Florida was in their best interest. In his forth point, Father claims the trial court erred in allowing Mother to relocate to Florida with the children because the evidence established that it was in the best interest of the children to pursue counseling with Father which could not be accomplished if the children were moved. Given the similar issues involved, these two points will be addressed together.

Our review of the trial court’s decision regarding a custodial parent’s request to relocate the minor children’s principle residence is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). *867 Sadler v. Favro, 23 S.W.3d 253, 255 (Mo.App. W.D.2000). <cWe must affirm the trial court’s judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law.” Lavalle v. Lavalle, 11 S.W.3d 640, 646 (Mo.App. E.D. 1999). Recognizing the superior position of the trial court to judge the credibility, sincerity and character of witnesses as well as other intangibles, we must view the evidence and any reasonable inferences drawn therefrom in the light most favorable to the judgment and disregard all evidence and inferences to the contrary. Pokrzywinski v. Pokrzywinski, 8 S.W.Sd 222, 223 (Mo.App. E.D.1999). Moreover, because the trial court is presumed to have acted in the best interests of the children, the trial court’s assessment regarding what serves the children’s best interests will be affirmed unless this court is firmly convinced that the children’s welfare requires some other disposition. Buschardt v. Jones, 998 S.W.2d 791, 796 (Mo.App. W.D.1999).

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Bluebook (online)
35 S.W.3d 862, 2001 Mo. App. LEXIS 89, 2001 WL 49800, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-sep-v-petry-moctapp-2001.