Lavalle v. Lavalle

11 S.W.3d 640, 1999 Mo. App. LEXIS 2291, 1999 WL 1054813
CourtMissouri Court of Appeals
DecidedNovember 23, 1999
DocketED 75177
StatusPublished
Cited by25 cases

This text of 11 S.W.3d 640 (Lavalle v. Lavalle) 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
Lavalle v. Lavalle, 11 S.W.3d 640, 1999 Mo. App. LEXIS 2291, 1999 WL 1054813 (Mo. Ct. App. 1999).

Opinions

MARY K. HOFF, Judge.

Brian Allen Lavalle (Father) appeals from the trial court’s “Findings of Fact, Conclusions and Judgment of Modification of Decree of Dissolution” (Judgment), which awarded Tonja Lee Lavalle1 (Mother) physical custody of the parties’ minor child (Daughter), allowed Mother and Daughter to relocate to the State of Maryland, set forth a visitation schedule, and increased Father’s child support obligation to $537.00 per month. Mother appeals from the Judgment insofar as it limited to two years the period for relocation of Daughter from the State of Missouri to the State of Maryland. We consolidated these appeals. We strike the portion of the Judgment limiting to two years the relocation of the parties’ minor child and, as so modified, affirm the Judgment.

The parties were married in 1990 and had one child, Daughter, born on March 30, 1994. The parties’ marriage was dissolved on November 2, 1995. In relevant part, by the Judgment and Decree of Dissolution: Separation Agreement (Decree), the court awarded the parties joint legal custody and shared physical custody of Daughter; prohibited Daughter’s removal “from the State of Missouri for more than ninety (90) days, without prior specific authorization of the Court or the written consent of both parties”; directed Father to pay child support of $500.00 per month, until Daughter either attended kindergarten or was in day care for less than ten consecutive workdays at which time the support obligation decreased to $365.00 per month; and set forth a detailed visitation schedule.

[644]*644On December 22, 1997, Mother filed a “Motion to Modify for Removal of the Minor Child from the State of Missouri and for Child Support” (Original Motion). Father filed a “Cross-Motion to Modify” (Cross-Motion). In his Cross-Motion, Father sought modification of the Decree to award him the primary physical and legal custody of Daughter, “subject to appropriate visitation and temporary custody with” Mother, and to award him a reasonable sum of child support. Mother subsequently filed a “First Amended Motion to Modify for Removal of the Minor Child from the State of Missouri and for Child Support” (Amended Motion). In her Amended Motion, in relevant part, Mother asked for modification of the Decree: allowing her to remove Daughter from Missouri; granting Mother primary legal and physical custody of Daughter “subject to reasonable and liberal temporary custody periods to” Father; setting forth provisions for the expense and transportation of Daughter during those temporary custody periods; directing Father to pay child support “in accordance with the Missouri Child Support Guidelines, retroactive to the date of fifing”; and requiring Father to pay Mother’s reasonable attorney’s fees and costs.

It is undisputed that at the time the motions were filed: both parties had remarried; Mother’s husband had accepted a clinical associate position in the surgery branch of the National Cancer Institute in Bethesda, Maryland that began in July 1998; Father lived in Illinois with his wife and stepchildren; and the majority of the parties’ extended families lived in either New Madrid or Kewanee, Missouri.

In August 1998, the trial court conducted an evidentiary hearing on Father’s Cross-Motion and on Mother’s Amended Motion. In its Judgment, the trial court granted in part and denied in part each of those motions.

With respect to the relocation and custody requests, the trial court found there was a change in Mother’s circumstances and the best interests of Daughter required that Mother “be permitted to remove the minor child from the State of Missouri and establish their residence in the State of Maryland.” The trial court expressly noted it must compare “the geographical, material and social aspects of the alternative places of residence and, more importantly, all aspects of the alternative custody offered by each parent.” The trial court concluded: Maryland “will have professional advantages for [Moth-erj’s current husband and ... will improve in the future, if not immediately, the general quality of fife of [Mother] and the minor child”; Mother’s present husband had demonstrated “a need that cannot be met in the home community”; “[njothing impugns [Motherj’s motives in relocating, for she has not interfered with either [Fa-therj’s rights to temporary physical custody with, or telephone access to, the minor child”; “[njothing impugns [Fatherj’s motives for opposing [Motherj’s relocation, and ... notwithstanding the distance and costs of transportation to and from Maryland, any relocation by [Mother] to the State of Maryland would not severely or unnecessarily curtail [Fatherj’s temporary custody with the minor child.”

Therefore, the trial court awarded Mother primary physical custody while retaining the parties’ joint legal custody of Daughter. The trial court expressly stated that “effective September 6, 1998, [Mother] shall be, and hereby is, permitted to remove the minor child from the State of Missouri for a period of two (2) years and, during the said period, establish the residence of the minor child in the State of Maryland.”

The trial court also set forth temporary physical custody periods for Father. The provisions relevant to this appeal are as follows:

4. Beginning upon the minor child’s entry into kindergarten, [Father] shall be, and hereby is, awarded temporary physical custody of the minor child in the state of [Motherj’s residence with [645]*645the minor child at reasonable times and for reasonable intervals, upon reasonable notice to [Mother], which, in all events, shall include the following:
(a) President’s Day weekend from 3:00 p.m. Friday until 7:30 a.m. Tuesday;
(b) Martin Luther King Day weekend from 3:00 p.m. Friday until 7:30 a.m. Tuesday;
(c) Memorial Day weekend from 3:00 p.m. Friday until 7:30 a.m. Tuesday;
(d) Labor Day weekend from 3:00 p.m. Friday until 7:30 a.m. Tuesday.
5. Beginning upon the minor child’s entry into kindergarten, [Father] shall be, and hereby is, awarded temporary physical custody of the minor child outside or, at his option, inside the state of [Mother’s residence with the minor child at reasonable times and for reasonable intervals, upon reasonable notice to [Mother], which, in all events, shall include the following:
(a) Thanksgiving vacation from 3:00 p.m. Wednesday until 10:00 a.m. Monday;
(b) Spring vacation from 3:00 p.m. on the final day of school prior to commencement of the vacation period until 10:00 a.m. on the day on which school resumes upon conclusion of the vacation period;
(c) In even numbered years, Christmas vacation from 3:00 p.m. December 23 until 7:00 p.m. December 31;
(d) In odd numbered years, Christmas vacation from 10:00 a.m. on December 26 until 10:00 a.m. January 2;
(f) [sic] From 5:00 p.m. June 10 until 5:00 p.m. July 15 inclusive and from 5:00 p.m. July 30 until 5:00 p.m. August 24 inclusive. ([Mother] shall have exclusive physical custody of the minor child from 5:00 p.m. July 15 until 5:00 p.m. July 30 inclusive).

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Bluebook (online)
11 S.W.3d 640, 1999 Mo. App. LEXIS 2291, 1999 WL 1054813, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lavalle-v-lavalle-moctapp-1999.