Marriage of Abraham v. Abraham
2011 Mo. App. LEXIS 1428
| Mo. Ct. App. | 2011Background
- Dissolution decree in 2006 granted joint custody of the child; Mother relocated from Springfield to Columbia in 2007 with apparent scheduling agreement.
- September 13, 2010, Mother sent certified-letter relocation notice proposing the child move to Orlando, Florida; Father received it September 14, 2010.
- October 22, 2010, Father moved to prohibit relocation; November 4, 2010, Father also moved to modify the decree; Mother moved to dismiss the relocation-prohibition motion.
- Section 452.377 governs relocation: 60 days’ notice, certified mail, and notice must include the new residence address and move date among other details.
- Trial court found Mother’s notice inadequate under §452.377; this Court affirms, holding strict compliance is required for relocation notices.
- Majority rejects Baxley’s “absolute right” theory; the Court emphasizes strict statutory compliance and the public policy of meaningful parental contact.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Mother's notice complied with §452.377.2 | Mother argues substantial compliance suffices; Baxley grants absolute right. | Father argues strict compliance is required; Baxley misreads statute. | No; strict compliance required; notice was inadequate. |
| Whether Baxley’s absolute-right rule controls relocation rights | Mother relies on Baxley to permit relocation absent timely objection. | Father relies on Baxley as controlling. | Baxley wrongly decided; cannot control; strict compliance governs. |
| Effect of noncompliance on merits determination | Noncompliance should not bar merits if no prejudice. | Noncompliance can preclude merits regardless of prejudice. | Noncompliance does not automatically bar merits, but strict compliance is required; court reached merits here. |
Key Cases Cited
- Baxley v. Jarred, 91 S.W.3d 192 (Mo. App. 2002) (absolute right to relocate debated; prejudice not controlling for noncompliance varies by context)
- Kell v. Kell, 53 S.W.3d 203 (Mo. App. 2001) (notice by certified mail; prejudice analysis when notice is defective)
- Weaver v. Kelling, 53 S.W.3d 610 (Mo. App. 2001) (actual notice may excuse technical noncompliance as to prejudice)
- Dent v. Dent, 248 S.W.3d 646 (Mo. App. E.D. 2008) (prejudice-focused discussion on notice and objecting timely)
- Melton v. Collins, 134 S.W.3d 749 (Mo. App. 2004) (notice provisions and prejudice considerations in relocation context)
- Cortez v. Cortez, 317 S.W.3d 630 (Mo. App. S.D. 2010) (context of relocation and custody decisions; compliance issues)
- Heintz v. Woodson, 758 S.W.2d 452 (Mo. banc 1988) (procedural rules not ends in themselves; prejudice considerations important)
- Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976) (standard of review for custody/relocation decisions: substantial evidence, not against weight, proper legal application)