Henry v. Henry
2011 Mo. App. LEXIS 1459
Mo. Ct. App.2011Background
- Dissolution of marriage on April 22, 2008; child Tyler Furgison Henry born March 11, 2006; original joint legal and joint physical custody; Father’s visitation schedule including weekends, midweek, holidays.
- Mother moved with Tyler to Memphis, Tennessee on September 1, 2009; visitation schedule adjusted but disputed.
- Mother began work in Oct 2008 in Memphis, then Jan 2009 with City of Millington; later relationship with McCormick.
- February 2010 Mother informed Father of relocation to Alpharetta, Georgia; Father opposed relocation.
- February 25, 2010 Father filed motions including to prevent relocation; Mother relocated March 1, 2010 despite objections.
- Trial court, after hearing on July 29, 2010, denied Father’s relocation-prevention motion and ordered shared custody with a minimum visitation schedule and Mother to pay transportation; Father appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Mother's notice noncompliance prejudiced Father | Henry argues no prejudice; exigent circumstances waived notice improperly. | Henry contends lack of proper notice is reversible error; exigent circumstances justified waiver. | No reversible prejudice; excess proceedings showed merit to litigate despite noncompliance. |
| Exigent circumstances finding and waiver of sixty-day notice | Mother’s exigent circumstances justified waiver. | Exigent finding erroneous; notice requirement not met. | We need not address exigency, as no prejudice shown; evidence supports merits-based decision. |
| Best-interests finding not against weight of the evidence | Relocation diminishes Father’s contact but plan ensures meaningful contact and benefits Tyler. | Relocation serves Tyler’s best interests; substantial evidence supports decision. | Best interests finding not against weight of the evidence; deference to trial court affirmed. |
| Best-interests finding not erroneous (alternative challenge to relocation decision) | Court should have favored Father due to extended-family impact and parenting plan constraints. | Court properly weighed factors and contact opportunities; relocation permissible. | Court did not err; relocation to Georgia supported by substantial evidence and deference due to trial court. |
Key Cases Cited
- Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976) (standard of review for relocation is Murphy v. Carron)
- Mantonya v. Mantonya, 311 S.W.3d 392 (Mo.App. W.D. 2010) (defer to trial court; substantial evidence/weight review in custody)
- Kell v. Kell, 53 S.W.3d 203 (Mo.App. E.D.2001) (noncompliance with notice may be prejudicial; appellate scrutiny for prejudice)
- Weaver v. Kelling, 53 S.W.3d 610 (Mo.App. W.D.2001) (actual notice can relieve prejudice from technical notice failure)
- Heintz v. Woodson, 758 S.W.2d 452 (Mo. banc 1988) (procedural rules are means to fair resolution; noncompliance not automatic reversible error without prejudice)
- Fohey v. Knickerbocker, 130 S.W.3d 730 (Mo.App. E.D.2004) (move permitted where custodial parent seeks better employment/benefit to child)
- Robinson v. Robinson, 338 S.W.3d 868 (Mo.App. W.D.2011) (best-interests factors; deference to trial court’s evaluation)
- Williams, 220 S.W.3d 858 (Mo.App. S.D.2007) (relocation v. mobile society; case-specific facts govern)
- Ratteree v. Will, 258 S.W.3d 864 (Mo.App. E.D.2008) (deprivation of time with extended family not per se against best interests)
- Houston v. Crider, 317 S.W.3d 178 (Mo.App. S.D.2010) (weight of evidence test in best-interests custody)