Mother, Barbara Jeanne Brethorst, appeals from that part of the trial court’s judgment denying her motion to modify the decree of dissolution of her marriage to father, Jon 'Matthew Brethorst. 1 We affirm.
In February 1996, the trial court entered a decree of dissolution of the parties’ marriage. The court awarded mother primary physical custody of the parties’ two children, a daughter born November 1990 and a son born March 1994. The court awarded both parties joint legal custody of the children and ordered father to pay child support.
Father testified that for fifteen years, he had been a police officer in a St. Louis County municipality. He lived in a one-bedroom apartment in the basement of a synagogue. Because of father’s varied work schedule, his sister helped him care for the children. Father was active in coaching the children’s soccer and baseball teams. Both parties testified that prior to mother’s move to North Carolina, the visitation schedule worked well and they cooperated in adjusting visitation to accommodate father’s work schedule.
The trial court denied father’s and mother’s motions to modify. The court did not make specific findings of fact and conclusions of law, but did discuss in its judgment its reasons for not permitting the children to move. 2
Our review of this case is governed by
Murphy v. Carron,
In her first point, mother claims that the trial court erred in failing to apply the four-pronged test enunciated in
Riley v. Riley,
Disputes concerning the relocation of children must be resolved on their particular facts rather than by rigid application of rules.
Green v. Green,
Riley
reiterated and applied the four-pronged test that was first enunciated in
Michel v. Michel,
Prior to the 1998 amendment to section 452.377, the courts approved a relocation if it was in the best interests of the child. The child’s best interests were measured by a four-part test set out in [Michel], In lieu of this test, section 452.377 now requires the court to determine that the relocation: (1) is in the best interests of the child, (2) is made in good faith, and (3) if ordered, complies with the requirements of subsection 10. Michel’s four-part test is inconsistent with these statutory requirements and shall not be used in determining the child’s best interests....
In effect, section 452.377, RSMo (2000) has broadened the inquiry in a relocation case to any substantial evidence bearing on the good faith of the custodial parent and/or the best interests of the child. Section 452.377.9. Now, the Michel four factors are simply evidence, rather than a test; the statute provides the test. Based on Stowe, the four-factor Riley test is no longer appropriate and the court did not err in failing to apply that test to the instant action. Mother’s first and second points are denied.
In her third point, mother argues that the trial court’s refusal to permit relocation was against the weight of the evidence because the evidence established not only that there was a change in circumstances but also that relocation was in the best interests of the children.
In a modification proceeding, the court first determines whether a substantial change has occurred in the circumstances of the children or the children’s custodian.
Pokrzywinski,
We next address mother’s assertion that the evidence established that the move was in the best interests of the children. Here, the judgment reflects that the trial court’s reasoning conforms to the test set forth in section 452.377, in that the court addressed whether the relocation was in the best interests of the children and was made by mother in good faith. With regard to the good faith factor, the trial court stated as follows:
Each side presented credible and compelling evidence in support of his or her postion on the [relocation], and the real problem is that both parties have substantial merit regarding their respective positions. Each party is a fine, caring and loving parent. The Court is persuaded from the evidence that each parent’s motive in advocating or opposing relocation was in total good faith, that each had bona fide reasons for the position taken, and that neither party was being arbitrary or unreasonable in the approach being urged.
With regard to the best interests of the children, the trial court weighed the disadvantages of permitting relocation and the interruption of the children’s relationship with their father against mother’s need to relocate and concluded that it was not in the children’s best interests to relocate:
Measured against this advantage [the possibility of an improved quality of life] is the loss the children, if relocated, would necessarily incur in their frequent and consistent contacts throughout the entire year that they now enjoy with their father, who plays and has played a major part in their life, especially in their soccer and baseball activities, and whose family members that also are close to the children all reside in Missouri, as does [Mother’s] family.
Here, the evidence was that father was actively involved in the children’s lives. He coached their soccer and baseball teams, but would be unable to do so if they relocated to North Carolina. His employment as a police officer permitted him to participate in the children’s sports and activities, because he was able to take “comp time” to attend their events. If the children moved, he would be denied this additional time to interact with them. In addition, under the decree of dissolution, he exercised his visitation on his days off, which consisted of three days off after nine days of work. Although his employment as a police officer resulted in a varied schedule, he and mother cooperated to accommodate his work schedule so that he could exercise his visitation with the children. If the children relocated, there would be less flexibility for their visitation schedule to conform to father’s work schedule. For example, many of mother’s proposed visitation dates were around the holidays when father would be required to work.
The trial court found that mother acted in good faith in seeking the relocation, but that the move was not in the best interests of the children. There was substantial evidence in the record to support the finding that relocation was not in the children’s best interests. Mother’s third point is denied.
In her fourth point, mother challenges the trial court’s denial of her motion to modify on the basis that section 452.377 is unconstitutional.
To preserve a constitutional question for appellate review, a litigant must, among other things, raise the question at the earliest opportunity consistent with good pleading and orderly procedure.
State ex rel. York v. Daugherty,
The judgment of the trial court is af
Notes
. Father does not appeal from that part of the trial court’s judgment denying his motion for change of physical custody of the children to him and for child support.
. The judgment is contained in Appendix A.
. We deny father’s motion for attorney’s fees pending appeal and motion to strike mother’s reply brief.