Jennings v. Jennings

37 S.W.3d 267, 2000 Mo. App. LEXIS 1760, 2000 WL 1741628
CourtMissouri Court of Appeals
DecidedNovember 21, 2000
DocketNo. 23426
StatusPublished
Cited by1 cases

This text of 37 S.W.3d 267 (Jennings v. Jennings) 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
Jennings v. Jennings, 37 S.W.3d 267, 2000 Mo. App. LEXIS 1760, 2000 WL 1741628 (Mo. Ct. App. 2000).

Opinion

PREWITT, Judge.

Sandra Anne Jennings (“Appellant”) appeals from the trial court’s order amending a decree of dissolution transferring primary physical custody of two children born to her marriage with William Glenwood Jennings (“Respondent”) to Respondent and assessing child support against Appellant. Appellant contends that the trial court erred in transferring custody of the children because there was insufficient evidence to demonstrate that substantial changes had occurred, and because the transfer of custody was premised on an intrastate relocation of the children without substantial evidence showing that the best interests of the children would be served by restricting their residence to the Marionville school district.1

The parties’ marriage was dissolved by judgment and decree entered April 24, 1998. In that decree, Judge Samuel C. Jones granted the parties joint custody of their two minor children, with Appellant awarded primary physical custody “at all times when she is not away from the home working; at all time [sic] when [Appellant] is away from home working, [Respondent] shall have physical custody of the said children.” The decree also provided that “neither parent may relocate the children or either of them outside the Marionville, Missouri, school district without the approval of the Circuit Court of Lawrence County.” At the time of the dissolution, both parties resided in Marionville. Pursuant to an agreement between the parties, the children stayed with Respondent for a six-week period, beginning March 14, 1998, while Appellant attended flight attendant school.

Appellant filed a motion for a new trial, contending, among other things, that the trial court erred in its calculation in dividing the marital property. Following a hearing on the motion, the trial court sustained her motion as a motion to amend the judgment of April 24,1998, stating in a docket entry: “Court recognizes need to amend judgment to calculate child support in light of Supreme Court’s suspension of new Form 14 guidelines and/or instructions.” Appellant remarried on July 4, 1998. Her new husband worked and resided in Parkville, Missouri.

Respondent filed a motion for an order to show cause in which he contended Appellant should be held in contempt for her refusal to vacate the marital home which the court had awarded to him. That motion was heard on July 17, 1998. Neither Appellant nor her attorney was present at that hearing. The court denied a motion for continuance that Appellant’s attorney [270]*270had filed, sustained Respondent’s motion for an order to show cause, and ordered Appellant to vacate the home. At the request of the trial court, Respondent’s attorney prepared an amended judgment which was filed on July 20, 1998. The amended judgment awarded joint legal custody to the parties, but designated Respondent as the principal physical custodian of the parties’ children, and assessed child support against Appellant. Appellant appealed from the amended judgment.

Appellant surrendered the house in Marionville and moved to Parkville, Missouri, to live with her new husband on August 2, 1998. Appellant’s job as a flight attendant required her to commute to Chicago, Illinois, from where she left for her assignments.

This District, by opinion filed June 16, Í999, reversed the trial court’s award of custody and child support, finding that, as neither party had requested modification of custody or child support, “the trial court had no jurisdiction and erred in changing primary physical custody from [Mother] to [Father],” and in assessing child support against Mother. The case was remanded for re-calculation of child support as was previously noted in the trial court’s docket entry. Jennings I.

Appellant was residing in Parkville with the children when this District’s decision was filed. On June 24, 1999, Respondent filed a motion to modify the April 24, 1998 judgment. He alleged “certain substantial and permanent changes in the circumstances of the children and their Mother,” specifically, 1) that Appellant moved outside the Marionville school district; 2) that Appellant works “regularly for United Airlines, and is seldom at home”; 3) that Appellant has remarried; 4) that Appellant is gainfully employed and able to bear costs; 5) that the children prefer to live with their father; and 6) that “recomputation of child support in light of the parents’ present circumstances would result in a change in the amount thereof in excess of 20%.” Respondent did not file a parenting plan with his motion to modify the judgment. On August 2, 1999, Respondent filed a motion for a pendente lite order providing that the children remain in the Marionville school district.

Following an August 17,1999 hearing on Respondent’s pendente lite motion, the trial court made the following docket entry: “On [Respondent’s] motion for temporary relief, court finds that the judgment entered April 24, 1998, is in full force and effect; including that the children shall not be relocated outside the Marionville School District. [Appellant] and [Respondent] shall abide by the terms of the judgment.” Thereafter, Appellant filed a motion requesting withdrawal of the docket entry and a proceeding to determine child support as directed by the mandate of the Court of Appeals.

On September 14,1999, Appellant filed a counter-petition and answer to Respondent’s motion to modify. Specifically, she alleged a change of circumstances since the granting of the dissolution “which makes the present custody and visitation arrangement unworkable,” and cites her relocation and remarriage and Respondent’s cohabitation “with a person to whom he is not married” as such changes. Respondent married the woman to whom Appellant referred on October 29, 1999, ten days before the November 8,1999 hearing. Appellant’s cross-petition requested modification of custody, visitation, and child support.

The parenting plan proposed by Appellant gave Appellant custody of the children and visitation to Respondent on the second and fourth weekends of each month from Friday through Sunday, with specific holiday visitation and visitation for two periods of two weeks each summer. According to her proposal, the party “obtaining physical custody of the minor children shall provide transportation.”

Respondent’s' new wife, Michelle, has four children by a previous marriage, and the children all five with their father. She [271]*271testified she did not work and she was prepared to stay home to take care of Respondent’s girls. Respondent and his wife, Michelle, live in a two-bedroom home. Michelle has visitation with her children on the same weekends that Respondent’s children visit.

On November 8, 1999, the circuit court heard the parties’ motions to modify. The report by the guardian ad litem was filed November 15, 1999. The guardian ad li-tem opined that a new arrangement for visitation would be necessary if Appellant remained in Parkville, as “the original decree will not work with [the oldest child] in school.” She further informed the court that “[s]ince there have not been substantial and continuing changes that have resulted in detriment to the children,” she did not believe it would be in the best interests of the children for custody to be changed. She suggested that if the court found the move from Marionville was not appropriate for the children, that Appellant should be given the opportunity to return to the Marionville school district.

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Bluebook (online)
37 S.W.3d 267, 2000 Mo. App. LEXIS 1760, 2000 WL 1741628, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jennings-v-jennings-moctapp-2000.