Family Law

Editor:
John W. Dennis, Jr., Esquire

Under § 452.377, RSMo, relocation of child’s residence requires strict compliance to statutorily required notice before strict compliance with time to file objection to relocation is required. Abraham v. Abraham, No. 31099 (Mo. App. S.D., October 26, 2011), Rahmeyer, J.

A dissolution of marriage was granted to the parties in April 2006. In September 2010, the Mother sent a certified letter of her intention to relocate their child’s residence to Orlando, Florida. The Father did not file an objection to the move until 37 days after receipt of the letter. The Mother asserted that the tardy objection was ineffective to preclude her absolute right to the relocation in accordance with an opinion issued in Baxley v. Jarred, 91 S.W. 3d 192, 199 (Mo. App. W.D. 2002). In Baxley, it was held that an objection to relocation that was not timely filed gave the relocating party an absolute right to relocate and that the only issue left for the court was the appropriate adjustment in parenting time between the parties. The trial court rejected that theory and denied the Mother her request to relocate. She appealed.

Held: Affirmed.
“Mother claims that ‘strict compliance’ with the elements of a relocations letter is not required….” The Father asserted that the Mother’s failure to provide known details of the address to which relocation is intended renders her notice effective.

“We believe the legislature intended that the date for any legal obligation to begin for the nonrelocating party was the date of receipt of the certified letter which strictly complies with the provisions of the statute; it was intended as a bright line for parents, practitioners and the court. To hold otherwise causes confusion in the courts and the practicing bar as to whether a motion to prevent relocation needs to be filed.”

“[T]he notice requirement of § 452.377 must be strictly complied with.” Here, the Mother did not give notice of the actual specific address and mailing address of her new intended residence although she knew it. If one party must be held to compliance with the 30 day rule to object, the relocating party must be held to strict compliance with the notice provisions that trigger that obligation to act.

Concurring Opinion:
“Waiver is the intentional relinquishment of a known right.’” In Baxley, neither party complied with the requirements of the statute as to notice and time to object. Yet, they weren’t treated the same in that the failures of the notice to relocate were forgiven while the failure to file a timely objection was not. However, in the instant case they were each given their day in court regarding the relocation. Thus, neither party was prejudiced by such non-compliance.

Rather than require strict compliance with the statute in all aspects here, the opinion asserts that the proper analysis is whether a party was prejudiced by such non-compliance. Thus, in the instant case, neither party complied with the statutory requirements and a full hearing of the relocation issue ensued. That was the proper result, not for failure of strict compliance, but rather because the trial court gave each party full and fair hearing on the relocation issues.

Concurring Opinion #2:
There should be no “absolute right” to a default on the issue of relocation when an objection is not timely filed. There should be consideration given to the facts of the case because the welfare of the child is the paramount concern.


The court has no statutory authority to dictate resolution in an initial custody proceeding under § 452.377. The “relocation” statute does not apply to initial proceedings.  A.E.B. by Next Friend, L.D. v. T.B., No. 91716 (Mo. banc, October 25, 2011), Russell, J.

This was an action for determination of paternity and custody. Prior to its filing, the Mother had moved to the State of Ohio. The Father sought an order requiring the child to be returned to the State of Missouri. The trial court decided that the Mother would have sole physical custody of the child, but that she would have to move within a three county area in the State of Missouri. Mother appealed.

Held: Reversed.
Section 452.377, RSMo, governs relocation issues. Clearly, its provisions pertain to occurrences after an initial custody determination. Section 452.375, RSMo, governs the issue of child custody determinations. One of the factors in assessing child custody is the intention of a party to relocate the child. “Because statutory limitations on relocation provided in § 452.377 do not apply before a § 452.375 initial custody determination is established, § 452.377 in no way precludes a party from relocating prior to a § 452.375 determination.” Therefore, the trial court had no statutory authority to require the Mother to move the child back to the State of Missouri.

Dissent:
During the trial, the Mother offered two parenting plans, one of which presumed Mother and the child would come back to Missouri to live. The dissent suggests that this was sufficient to give the trial court authority to order custody in Missouri because she invited the error.

Editor’s Note:
The factual background states that “[w]hile Mother was preparing her move to Ohio in July 2008, Father filed a paternity and custody action against her.”