Known v. Mulvihill

563 S.W.3d 172
CourtMissouri Court of Appeals
DecidedDecember 11, 2018
DocketWD 81520
StatusPublished
Cited by3 cases

This text of 563 S.W.3d 172 (Known v. Mulvihill) 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
Known v. Mulvihill, 563 S.W.3d 172 (Mo. Ct. App. 2018).

Opinion

Thomas N. Chapman, Judge

Andrea Trueblood (Mother) appeals the judgment of the Circuit Court of Johnson County, Missouri, modifying the schedule of physical custody and rotating annually the residential designation of the children for educational and mailing purposes. Mother contends that the trial court erred *174in modifying the parenting time schedule and residence designation, arguing that there was no substantial evidence to support the judgment, and that the judgment was against the weight of the evidence. Finding no error, we affirm.

Facts and Procedure

Andrea Trueblood and Michael Mulvihill (Father) have two children together: B.M. (born July 8, 2011), and A.M. (born December 8, 2009). On February 23, 2012, a Judgment of Dissolution of Marriage was entered which awarded the parties joint legal custody of their two children, awarded Mother sole physical custody, and awarded Father a schedule of visitation. At the time of the dissolution, both Mother and Father were stationed at Whiteman Air Force Base in Johnson County, Missouri. Father was and continues to be a member of the United States Air Force. Mother was an Air Force member at the time of the dissolution, but is now enlisted in the National Guard.

On December 12, 2013, a stipulated Judgment was entered, which modified physical custody by awarding the parties joint physical custody, dividing parenting time between the parties equally on a weekly basis, and designating Mother's home as the residence of the children for educational and mailing purposes. At the time of the 2013 modification, Father and Mother were both on active duty in the United States Air Force. Mother resided at Whiteman Air Force Base near Knob Noster, Missouri, and Father resided in Warrensburg, Missouri.

On November 30, 2016, Father was notified that he was being reassigned to Anderson Air Force Base located in Guam, with arrival required between May 1 and May 10, 2017. On December 9, 2016, Father filed his Motion to Modify (which included his Notice of Relocation and Parenting Plan), proposing that the parties continue to have joint legal custody and joint physical custody of the children and that that the parties alternate years of physical custody (parenting time). More specifically, Father proposed that the children would continue to reside with Mother during the summer of 2017; then would move in with Father immediately prior to the beginning of the 2017/2018 school year; then back with Mother immediately prior to the beginning of the 2018/2019 school year; then back with father for the 2019/2020 school year.

In February of 2017, Father was given notice that the Air Force instead intended to reassign him to Eielson Air Force Base, North Pole, Alaska, with the same reporting dates (May 1 to May 10, 2017). On February 16, 2017, Father sent another Notice of Relocation to Mother, notifying her of the change in assignment (to Alaska) and again proposing an annually alternating custody schedule and designation of residence. On February 23, 2017, Father was granted leave to amend (by interlineation) his Motion to Modify to reflect his reassignment to Alaska.

The trial of this matter was held on January 9, 2018. Testimony was provided by Father, Mother, and Father's current wife (Stepmother). At trial Mother testified that Father's parenting plan would place undue stress on the children since it would necessitate annual relocation. Mother submitted her Second Amended Parenting Plan, which proposed that the parties continue to share joint legal and physical custody, that the children reside primarily with mother during the school year, and that the children spend the majority of the summer with Father.

Father proposed during his testimony that the children attend school in Alaska during his years of custody. Father and Stepmother testified that the stepchildren *175Father has with Stepmother are very close to A.M. and B.M., that B.M. has special needs, and that the school district in Alaska has demonstrated an ability to accommodate a child with special needs as it has done so for Father's stepson with autism. Mother testified that she knew, dating back to the time of their divorce, that Father intended to make the Air Force his career and that she understood that relocation from Whiteman Airforce base was required as part of Father's military service. Father also testified concerning the significant benefits that his children derive from his employment in the Air Force. Father testified that he has consistently shown a more thorough commitment to facilitating communication between Mother and the children when they are in his custody than she has done when they are in hers. Father proposed that the parties annually alternate physical custody of the children or, alternatively, that the children reside with him through the school year and primarily with Mother in the summer. Father testified that an annually rotating custody schedule would be in the best interests of the children.

Father testified that he has consistently advanced in military rank ahead of schedule, that he was on track to complete a twenty-year career in the Air Force, and that accepting the reassignment to North Pole, Alaska, was not optional and was necessary to continue his active duty military career.

After reviewing the relevant best interest factors and finding that there had been a change in circumstances, the trial court entered its own parenting plan, which adopted Father's proposed alternating year schedule, but advanced it a year as the children had remained with Mother during the 2017/2018 school year, as follows:

"A. Custody
Mother and Father shall continue to have joint legal and joint physical custody of the minor children. The residence of the children for mailing and educational purposes shall rotate annually pursuant to the terms of this Parenting Plan.
(a) School Year Custody
The children will remain in Mother's custody and attend school in the school district where mother resides for the remainder of the 2017/2018 school year.
Father shall be entitled to custody of the children commencing on August 1, 2018. The children will remain in Father's custody and attend school in the school district where Father resides for the 2018/2019 school year.
The children shall return to Mother's custody on August 1, 2019, and the year rotation of custody shall continue hereafter so long as the parties do not reside within the same school district."

Mother appeals from this ruling, arguing that it is not supported by substantial evidence and that it is, in fact, contrary to the weight of the evidence. For the reasons set forth below, we affirm.

Standard of Review and Applicable Law

We will affirm the trial court's judgment "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." Guier v. Guier , 918 S.W.2d 940, 946 (Mo. App. W.D. 1996).

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Bluebook (online)
563 S.W.3d 172, Counsel Stack Legal Research, https://law.counselstack.com/opinion/known-v-mulvihill-moctapp-2018.