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      Larry Gillespie argued a matter before the Missouri Supreme Court concerning whether a judge can make a parent move from another state to live in one of three (3) Missouri counties. Two other states, Washington and Montana, have decided that courts can’t requires parents to move from one state to another in a custody case.

On April 26, 2011, the Missouri Court of Appeals, Eastern District, issued its Opinion in the case before transferring to the Missouri Supreme Court.

On October 25, 2011, the Missouri Supreme Court, Eastern District, issued its Opinion in the case. 

Missouri Court of Appeals Opinion

(reproduced text)

IN THE MISSOURI COURT OF APPEALS

EASTERN DISTRICT


DIVISION FIVE

A.E.B., a minor, by next friend, L.D. ) No. ED94616
and L.D., Individually, )
)
Respondents/Cross-Appellants, ) Appeal from the Circuit Court
) of St. Charles County
vs. ) Cause No.: 0811-FC02092
)
T.B., ) Honorable Nancy L. Schneider
)
Appellant. ) FILE: April 26, 2011
OPINION
T. B. (Mother) appeals from the trial court’s judgment and challenges the trial court’s requirement that she relocate her residence from the State of Ohio to a three-county area in East Central Missouri. L.D. (Father) cross-appeals arguing it would in the best interest of A.E.B. (Child) to award him sole physical custody with reasonable custody and visitation with Mother residing in the State of Ohio. We would reverse and remand, in part, and affirm, in part, but because of the general interest and importance of the issue involved, we order this case transferred to the Missouri Supreme Court, pursuant to Rule 83.02.
Factual and Procedural Background
Child was born March 3, 2006, in St. Louis County, Missouri. Mother and Father were dating at the time Mother became pregnant with Child, but were not living together. Father was not present for Child’s birth but later came to the hospital and participated in choosing her name.
After Child’s birth, Mother asked Father to sign an affidavit of paternity. Father requested that paternity testing be done which was finally accomplished when Mother initiated support proceedings through the Division of Child Support Enforcement. Until this time, Father made no voluntary support payments.
Child has resided exclusively with Mother her entire life. Conversely, Father has had limited contact with Child.
Father resides in St. Charles County with his parents. Father has held employment sporadically, having worked at National Dealer Warranties, Pundmann Ford and Extended Warranty during Child’s lifetime, but was unemployed at the time of trial. Mother was employed by Ameristar Casino as a waitress in the VIP lounge. In the spring of
2008, Mother’s roommate informed her that she was moving. At this point, Mother decided to move to Aurora, Ohio to live near her mother. She purchased one-way plane tickets for her and Child July 6, 2008.

One July 8, 2008, Father filed his Petition for Declaration of Paternity, Order of Support and Custody, and Change of Name.
On July 11, 2008 Mother arranged with her employer to take a leave of absence. The leave of absence allowed her to maintain health insurance on Child until she obtained a new job in Ohio. On July 13, 2008, Mother arranged with Federal Gateway Moving and Storage to transport her belongings to Ohio. A few days later, on July 16, 2008, Mother’s last day of work at Ameristar, she was served with the summons in this case. Mother and Child flew to Ohio on July 17, 2008, and continued to reside there through trial and this appeal. Mother testified that she has an apartment, where she and Child live, a job, family, and other ties to Ohio.
On October 6, 2008, the trial court entered a Judgment Pending Paternity Proceeding that required Father to pay child support and established a temporary visitation schedule. On April 28, 2009, the parties entered into a Consent PDL Judgment whereby a visitation schedule was established through August 30, 2009.
A trial on the matter was heard on November 12-13, 2009. At trial, Mother requested that the court enter an order awarding her sole legal and physical custody in Ohio. Mother additionally submitted a backup custody plan to have sole physical custody of Child in Missouri if she was not granted sole physical custody in Ohio. Father requested the trial court to implement a custody plan which awarded the parties joint legal and physical custody in Missouri.

On February 11, 2010, the trial court entered its Judgment and Decree of Paternity and Order for Child Support, Visitation and Temporary Custody. The trial court granted Mother sole physical custody of the minor child and designated the parties joint legal custodians. The trial court specifically ordered Mother to relocate her residence from Ohio to St. Charles County, St.
Louis County, or Lincoln County in Missouri.

Mother now appeals the custody determination requiring that she relocate her residence from the State of Ohio to a three-county area in East Central Missouri. Father cross-appeals arguing it would be in the best interest of Child to award him sole physical custody with reasonable custody and visitation with mother residing in the State of Ohio.[1]

Standard of Review
We will affirm the trials court’s custody determination unless it is not supported by substantial evidence, it is against the weight of the evidence, it erroneously declares the law or erroneously applies the law. Dunkle v. Dunkle, 158 S.W.3d 823, 832 (Mo. App. 2005). With respect to custody and visitation issues, the trial court has broad discretion, and we give deference to these decisions. Id.
Discussion
In her sole point on appeal, Mother argues the trial court erred in requiring her, as the custodial parents, to move from Ohio to a three-county area in East Central Missouri. Mother alleges that this decision is based upon a misapplication of the law, is unsupported by substantial evidence, and constitutes and abuse of the trial court’s discretion. In his cross-appeal, Father argues he should be granted sole physical custody of Child. Because Mother’s and Father’s arguments are interrelated, we will address them as one.
Section 452.377, RSMo 2000,[2] is most frequently applied to cases where the parties are already bound by a court-ordered custody agreement, and the parent with primary custody seeks to change the child’s residence and thereby alter the visitation plan. DeFreece v. DeFreece, 69 S.W.3d 109, 113 (Mo. App. W.D. 2002). Typically, in this situation, a parent with physical custody decides that he or she wants to move and, as required by Section 452,377, provides notice to the other parent of his or her desire to change the child’s residence. Id. The other parent then objects to the relocation and, pursuant to the statute, files a motion seeking an order to prevent the relocation. Id. The party seeking to relocate then has the burden of proving that the relocation is in the best interest of the child and that the request is made in good faith. Id.
Here, Mother moved to Ohio nearly eighteen months before trial. Therefore, the trial court was faced with the task of making an initial custody determination and not a motion to modify custody. Courts apply a different standard when making an initial custody determination than when determining whether to modify custody. Id. The initial determination of custody is made based on consideration of the eight factors set out in Section 452.375, under a best interests of the child standard, and not based on who happens to have actual custody of the child from the time of separation until the judge makes the custody determination. Id.
Section 452.375 requires courts to consider all relevant factors including:
(1)The wishes of the child’s parents as to custody and the proposed parenting plan submitted by both parties;
(2) The needs of the child for a frequent, continuing and meaningful relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child;
(3) The interaction and interrelationship of the child with parents, siblings, and any other person who many significantly affect the child’s best interests;
(4) Which parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent;
(5) The child’s adjustment to the child’s home, school, and community;
(6) The mental and physical health of all individuals involved, including any history of abuse of any individuals involved. If the court finds that a pattern of domestic violence has occurred, and, if the court also finds that awarding custody to the abusive parent is in the best interest of the child, then the court shall enter written findings of fact and conclusions of law. Custody and visitation rights shall be ordered in a manner that best protects the child and the parent or other family or household member who is the victim of domestic violence from any future harm;
(7) The intention of either parent to relocate the principal residence of the child; and
(8) The wishes of a child as to the child’s custodian.
Section 452.375. Here, the trial court determined, under Section 452.375, that the child’s best interest was served by being in the sole physical custody of Mother. However, the trial court then proceeded to treat this case as a relocation case under Section 452.377, which is inapplicable to an initial custody determination. DeFreece, 69 S.W.3d at 113; Dunkle, 158 S.W.3d at 835. Chapter 452 does not contain any authorization allowing a trial court to require a parent to move his or her residence as part of its initial custody determination or to create an environment that is, in the trial court’s opinion, more desirable for the child than that which exists. Instead, the trial court must fashion a parenting plan based on the actual circumstances of the parents and of the children as they exist at the time of trial.
We find the decision of the Washington Supreme Court in In re Marriage of Littlefield, 940 P.2d 1362 (Wash. 1997) instructive in helping us reach our decision. In Littlefield, the mother challenged the trial court’s order that she relocate to Washington from her residence in California as part of its initial dissolution decree. Littlefield, 940 P.2d at 1367. The court construed its Parenting Act, which was very similar to the provisions of Section 452.310[3] regarding the contents of a parenting plan, and concluded that while a trial court, in applying the “best interests” standard, had the authority to prohibit a parent from relocating, it had no power under the statute to require a parent to move to and live in a particular geographic area. Id.
Another instructive case is In Matter of Custody of D.M.G., 951 P.2d 1377 (Mont.1998), in which the Montana Supreme Court addressed a factually similar situation to the one before us now. In D.M.G., the father initiated an action in Montana to establish custody rights to his twin sons. D.M.G., 951 P.2d at 1379. At the time the father filed his lawsuit, the mother was living with the boys in Oregon. Id. The trial court granted the mother physical custody provided that she move from Oregon to Montana. Id. The Montana Supreme Court reversed this decision.
Although D.M.G. deals with constitutional issue beyond the scope of this appeal, the court’s reasoning in the case is applicable to the instant case. In D.M.G., the court found problematic the trial court’s requirement that “the children’s primary residential custodian move to Montana from another state where the custodian had already established her home and the children’s home prior to the initial custody determination and prior to the relocation issue being raised.” Id. at 1382-83 (emphasis in original). In noting that the circumstances of D.M.G. differed from the usual situation where a trial court was asked to rule upon a custodial parent’s request to move to another state, the Montana Supreme Court observed:  Instead of preserving the stability of the home and community to which the children are accustomed by restraining their relocation from their home state to another state, the court order at issue here effectively requires the custodial parent to disrupt the stability and continuity of the children’s home in the state where they have lived for a substantial portion of their young lives and to instead relocate and start over again in Montana.

Id. at 1384-85.
That is precisely the situation which is presented to this Court. Here, Child was three and a half years old at the time of trial, and had lived in Ohio for nearly a year and a half. The effect of the trial court’s order that Mother move to Missouri only serves to disrupt the stability and continuity of her home, not to preserve it. The D.M.G. court went on to say:
While as a general proposition, it may be preferable that . . . parents live in the same community and that their children have frequent and consistent contact with each parent, realistically that ideal cannot always be met.
* * * *
Absent . . . case-specific proof, however, there is no compelling state interest justifying a court ordering the custodial parent to live in a state other than the one he or she freely chooses….
[T]he custodial parent who bears the burdens and responsibilities of raising the child is entitled, to the greatest possible extent, to the same freedom to seek a better life for herself and himself and the children as enjoyed by the non-custodial parent.
Id. at 1385. Again, as in D.M.G., we believe Father in the instant case failed to present sufficient proof with respect to the best interests of Child to justify forcing Mother to relocate to Missouri.
We further note with respect to the three-county restriction, Missouri courts have uniformly held that a trial court does not have the power to confine a parent’s residence to a particular area. See In re Marriage of Dusing, 654 S.W.2d 938, 942 (Mo. App. S.D. 1983) (finding that provisions to ensure a relationship with both parents could be made with confining the residence of the custodial parent to a particular area of the state); see also Kline v. Kline, 686 S.W.2d 13, 17 (Mo. App. W.D. 1984) (affirming the trials court’s refusal to restrict the mother’s residence to either Boone or Calloway Counties); Murray v. Rockwell, 952 S.W.2d 350, 353 (Mo. App. W.D. 1997) (eliminating the trial court’s restriction of the child’s residence to the Greater Kansas City Metropolitan Area); Haden v. Riou, 90 S.W.3d 538, 541 (Mo. App. W.D. 2002) (finding the trial court’s restriction of both parents to Jackson County, Missouri was invalid). There is no question that the trial court here, with the child’s best interest in mind, determined that Mother should have sole physical custody. However, custodial parents also have rights which must be considered and, in the instant case, requiring Mother to move from Ohio to the three-county area of St. Louis County, and in Missouri, was an abuse of discretion.
Finally, it is important to stress that in the present case, the parents were not married and paternity and visitation was not established by court order at the time of Mother’s relocation to Ohio. See Brown v. Shannahan, 141 S.W.3d 77, 79 (Mo. App. E.D. 2004). Thus, Mother’s move to Ohio was not in violation of any court order. As such, Section 452.377, which provides for modification of existing custody or visitation arrangements, does not apply when the mother has relocated with child prior to an initial determination of paternity and custody rights. Id.
We find no authority under Chapter 452 allowing the trial court to require Mother to move her residence from Ohio to Missouri as part of an initial custody determination. Further, under the circumstances of this case, the judgment requiring Mother to move from Ohio and its direction to limit Mother’s residence to a three-county area constituted an abuse of its discretion.
Conclusion
We deny Father’s cross-appeal requesting sole physical custody of Child. We affirm the trial court’s award of sole physical custody of Child to Mother and joint legal custody to Mother and Father as in the best interests of the minor child. We reverse the judgment regarding the physical custody plan for Child and remand to the trial court to determine a custody and visitation plan consistent with our findings. In all other respects, the judgment is affirmed. However, because of the general importance of this case, we transfer the case to the Supreme Court, pursuant to Rule 83.02.
________________________________
Mary K. Hoff, Judge
Gary M. Gaertner, Jr., Presiding Judge and Patricia L. Cohen, Judge, concur.

[1] Alternatively, Father requests that we affirm the trial court’s parenting plan with the requirement that Mother return with Child to Missouri, as specified in the judgment, or, that we remand the cause for a hearing to determine the best interests of the minor child regarding sole physical custody being either with Father in Missouri or with Mother in Ohio.
[2] Unless otherwise indicated, all further statutory references are to RSMo 2000.
[3] Any judgment providing for custody also must include “a specific written parenting plan setting for the terms of such parenting plan arrangements specified in subsection 7 of section 452.310.” Section 452.375.9. Section 452.310.7 in turn specifies:
(1)A specific written schedule detailing the custody, visitation and residential time for each child with each party including;
(a) Major holidays stating which holidays a party has each year;
(b) School holidays for school-age children;
(c) The child’s birthday, Mother’s Day and Father’s Day;
(d) Weekday and weekend schedules and for school-age children how the winter, spring, summer and other vacations from school will be spent;
(e) The times and places for transfer or each child between the parties in connection with the residential schedule;
(f) A plan for sharing transportation duties associated with the residential schedule;
(g) Appropriate times for telephone access;
(h) Suggested procedures for notifying the other party when a party requests a temporary variation from the residential schedule;
(i) Any suggested restrictions or limitations on access to a party and the reason such restrictions are requested….

Missouri Supreme Court Opinion

(reproduced text)
SUPREME COURT OF MISSOURI
en banc

A.E.B., A MINOR BY NEXT FRIEND, )
L.D., AND L.D., INDIVIDUALLY, )
)
Respondent/Cross-Appellant )
)
v. ) No. SC91716
)
T.B., )
)
Appellant/Cross-Respondent )

APPEAL FROM THE CIRCUIT COURT OF ST. CHARLES COUNTY
The Honorable Nancy L. Schneider, Judge
Opinion issued October 25, 2011

At issue in this case is whether the trial court had authority to compel a mother to relocate back to Missouri as part of an initial custody determination under section 452.375.1 The trial court awarded the mother sole physical custody of her child but then ordered that she relocate the child to Missouri to reside in a designated three-county area. Both the mother and the father appeal from the trial court’s judgment.2

This Court finds that the trial court had no authority to compel the mother to relocate as part of its initial custody determination. The judgment is reversed, and the case is remanded.



I. Background

A.E.B. (Child) was born out of wedlock in March 2006 to T.B. (Mother). L.D. (Father) was established as Child’s biological father after paternity testing in 2007. At all times relevant to this case, Father has resided in St. Charles County. Mother and Child also resided in the St. Charles County area until July 2008, when they relocated to Ohio to live near Mother’s mother. Child has always resided exclusively with Mother.

While Mother was preparing her move to Ohio in July 2008, Father filed a paternity and custody action against her. With his petition, Father also filed a proposed parenting plan with the trial court. This proposed parenting plan gave the parties joint legal custody and joint physical custody of Child, and it reflected a presumption that Child and Mother would live in Missouri.

A two-day trial was held in the case. At trial, Father testified that he preferred to share joint physical custody and joint legal custody of child in Missouri. He also submitted a different proposed parenting plan during the trial. His new proposed parenting plan assumed that Mother would remain in Ohio and requested that Father have sole physical custody of Child in Missouri.3

Mother also submitted two proposed parenting plans to the trial court. Her first proposed plan, titled “RESPONDENT’S PROPOSED PARENTING PLAN” and presented ax Exhibit A at trial, assumed that Child would be living in Ohio with Mother. The Exhibit A Parenting Plan gave Mother sole legal custody and sole physical custody of Child, and it granted Father visitation every second weekend of the month as well as certain summer vacation and holiday time.

Mother’s second proposed plan, titled “RESPONDENT’S PROPOSED PARENTING PLAN (MISSOURI)” and admitted as Exhibit J at trial, was offered for use if the trial court determined that Child should live in Missouri full time. The Exhibit J Parenting Plan also provided Mother sole legal custody and sole physical custody of Child, but it offered Father more frequent visitation. Under Mother’s Exhibit J Parenting Plan, Father would have visitation with Child every Wednesday night, on alternate weekends, and alternating designated vacation and holiday time.

The trial court entered its judgment regarding Father’s paternity and custody petition in February 2010, when Child was nearly four years old. Relevant to this appeal, the judgment awarded sole physical custody of Child to Mother 4 and also stated: “[Mother] shall return to the State of Missouri with the minor child on or before [March 1, 2010]. The Court orders that the minor child reside in the tri-county area of St. Charles, St. Louis, or Lincoln County, Missouri.” Although the judgment’s express language orders that Mother return Child to Missouri and orders that Child reside in the designated three-county area, the judgment requires both Mother and Child to relocate to Missouri, as Mother was named as Child’s sole physical custodian.

In accordance with section 452.310.8 5 and section 452.375.9, the trial court’s judgment included a parenting plan that the court found to be in the best interest of Child. The court’s parenting plan included a visitation schedule for Father that was largely similar to Mother’s proposed Exhibit J Parenting Plan. Father was granted visitation of Child on alternating weekends and on every Wednesday night, as well as certain alternating holiday and vacation times.

II. Issues on Appeal
Mother’s appeal asserts that the trial court abused its discretion in compelling her to relocate with Child from Ohio to a three-county area in Missouri. She argues that, because Father’s case involved an initial custody determination under section 452.375, the trial court lacked statutory authority to order relocation. She further contends that the trial court had no authority to limit her choice of resident to the designated counties.6
Mother maintains that the procedures in section 452.377,7 which govern relocation of children, are inapplicable in this case. She argues that the relocation provisions of section 452.377 apply only after an initial court-ordered custody agreement has been entered, not at the stage of an initial custody determination under section 452.375. Mother asks this Court to reverse the trial court’s judgment insofar as it compels her to relocate to Missouri. She asks that the relocation requirement be eliminated, and she requests that this Court implement her Exhibit A Parenting Plan based on her and Child’s continued residency in Ohio.8
III. Standard of Review

The trial court’s judgment will be upheld unless there was no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).
IV. Did the Trial Court Have Authority to Compel Mother to Relocate
The central issue in this appeal is whether the trial court had authority to compel Mother to relocate with Child back to Missouri as part of its initial custody determination under section 452.375. Regardless of the trial court’s statutory authority to enter the relocation order, Father contends that Mother invited the relocation order through her submission of her Exhibit J Parenting Plan.
A. The Trial Court Had No Statutory Authority to Compel Mother to Move
Section 452.377 provides for modifications to existing child custody and visitation orders to allow parties who are subject to such orders to relocate their residences.9 The relocation procedures of section 452.377, however, are inapplicable in cases where there has not yet been an initial determination of custody. Day ex rel. Finnern v. Day, 256 S.W.3d 600, 602-03 (Mo. App. 2008). Instead, the trial court’s initial custody determinations are guided by section 452.375, which“governs the initial award of custody in paternity cases, as well as dissolution cases.” Day, 256 S.W.3d at 602. Because the statutory limitations on relocation provided in section 452.377 do not apply before a section 452.375 initial custody determination is established, section 452.377 in no way precludes a party from relocating prior to a section 452.375 determination.10

Ultimately, the trial court’s initial custody determination under section 452.375 must reflect the trial court’s consideration of what custody arrangement is in the best interests of the child. Day, 256 S.W.3d at 602-03. The court’s initial custody determination considers eight factors outlined in section 452.375.2, which provides in relevant part:
The court shall determine custody in accordance with the best interests of the child. The court shall consider all relevant factors including:

(1) The wishes of the child’s parents as to custody and the proposed parenting plan submitted by both parties;

(2) The needs of the child for a frequent, continuing and meaningful relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child;

(3) The interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child’s best interests;

(4) Which parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent;

(5) The child’s adjustment to the child’s home, school, and community;

(6) The mental and physical health of all individuals involved…[;]

(7) The intention of either parent to relocate the principal residence of the child; and

(8) The wishes of a child as to the child’s custodian….


Pursuant to section 452.375.9, the trial court’s custody judgment must include “a specific written parenting plan,” which is entered in accordance with section 452.310, and the court’s discretionary determinations about what is “in the best interest of the child”

These statutes applicable to the trial court’s initial custody determiantion provide the trial court no authorization to compel a party to relocate his or her residence. Section 452.375.2(7) authorizes a trial court making an initial custody determination to consider “[t]he intention of either parent to relocate the principal residence of the child,” but this allowance for consideration of a party’s choice to relocate in the future does not provide statutory authority to compel a party to relocate from his or her desired and existing residence as part of the custody judgment.11

In this case, the trial court has no statutory authority to order Mother to relocate her residence to Missouri as part of the section 452.375 initial custody determination. Lacking the statutory authority to compel Mother’s move back to Missouri, the trial court also lacked the statutory authority to restrict Mother’s residence with Child to a designated three-county area.

B. Mother Did Not Give the Court the Authority to Compel Her to Move
` Having found that the trial court lacked the statutory authority to compel Mother to relocate to Missouri, this Court must now consider whether Mother offered the trial court the authority to compel her to move.
Mother maintains that she did not purport to convey to the trial court any authority to compel her to relocate with Child to a three-county area of Missouri. Father, however, asserts that Mother’s Exhibit J Parenting Plan and her testimony about the plan showed that she consented to move back to Missouri. He argues that, at best, Mother confused or misrepresented the issue of whether she was willing to relocate with Child to Missouri. He highlights that Mother testified that she would “go with” Child if the court decided that Child should be back in the St. Louis area.
Father’s arguments about Mother’s purported consent to move are not supported by the record. Nothing in Mother’s Exhibit J Parenting Plan indicated that Mother acquiesced to a court order requiring her to relocate her residence to Missouri. And Mother’s testimony did not clearly indicate that she wished to move back to Missouri or that she agreed to relocate from Ohio.
When Mother’s Exhibit J Parenting Plan was offered at trial as an alternate plan if the court decided that Child should reside in Missouri, the following testimony occurred:
[Mother’s Attorney]: [Mother], if you go to Exhibit J. You understand that the Court, the judge here is charged with the duty or responsibility to determine what’s in the best interest of your daughter, you understand that?

[Mother]: Yes.

[Mother’s Attorney]: If she deems the best interest of your daughter is to be back here in St. Louis living here full time, what are you going to do?

[Mother]: Go with my daughter.

[Mother’s Attorney]: So it’s not an option that you stay in Ohio, if your daughter lives here full time?

[Mother]: No.

[Mother’s Attorney]: Why not?

[Mother]: Because I need to be with my daughter. She needs to be with her mom.

[Mother’s Attorney]: Exhibit J, are you offering this parenting plan as a back-up plan if the Court believes that it’s appropriate for your daughter to stay here in St. Charles?

[Mother]: Yes, sir.

[Mother’s Attorney]: It’s not what you are wanting?

[Mother]: No, I don’t want that.

[Mother’s Attorney]: But you want to be with your daughter?

[Mother]: Yes.

[Mother’s Attorney]: You believe it’s in your best interest for your daughter to be with you on a primary basis?

[Mother]: Yes.


The following testimony related to Mother’s proposed parenting plans occurred during cross-examination by Father’s counsel:
[Father’s Attorney]: You signed two [parenting plans], right?

[Mother]: Yes.

[Father’s Attorney]: These are all alternative plans, correct?

[Mother]: Yes.

[Father’s Attorney]: One is if you are allowed to stay in the State of Ohio, correct?

[Mother]: Yes.

[Father’s Attorney]: The other one is if the Court were to say that [Child] had to come back to the State of Missouri?

[Mother]: Yes.

[Father’s Attorney]: So what you are asking the Court to do here is let you live in Ohio?

[Mother]: Yes.
[Father’s Attorney]: And then if not, to give you sole custody of [Child] in the State of Missouri?

[Mother]: Yes.

[Father’s Attorney]: So you are willing to move back to the State of Missouri, correct?

[Mother]: I do not want to.

[Father’s Attorney]: You don’t want to, but you are willing to do it, correct?

[Mother]: If it’s the Court’s order, I have to.

[Father’s Attorney]: It’s not impossible for you to move back to the State of Missouri, correct?

[Mother]: It will be difficult.

[Father’s Attorney]: [W]e are here in court today to decide whether or not [Child] comes to Missouri or stays in the State of Ohio, correct?

[Mother]: Yes.

[Father’s Attorney]: Now [your Exhibit A Parenting Plan] is with you remaining in the State of Ohio, correct?

[Mother]: Yes.

[Father’s Attorney]: [L]et’s look at your [Exhibit J Parenting Plan]. This is the parenting plan if [Child] has to come back to Missouri, correct?

[Mother]: Yes.

[Father’s Attorney]: You are asking this Court in the alternative to allow you to stay in Ohio, to give you sole physical and legal custody of [Child] here in the State of Missouri; is that right?

[Mother]: Yes, I do believe she should be with me.

Mother’s testimony expressed her belief that
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she would “have to” return to Missouri if the trial court so ordered, but Mother’s supposition on this issue was not sufficient to manufacture authority for the trial court to compel her to relocate her residence.

Absent statutory authority for its order compelling Mother’s relocation to Missouri, and without an agreement by Mother that she would move back to Missouri, the trial court’s judgment wrongly compelled Mother to relocate with Child to a three-county area of Missouri. The portion of the trial court’s judgment requiring Mother’s relocation must be reversed.
V. Remand is Necessary
Absent the authority to order Mother’s relocation, the trial court was required to enter a judgment that reflected the actual circumstances of the parties and Child as they existed at the time of trial. See In re Marriage of Littlefield, 940 P.2d 1362, 1371-72 (Wash. 1997) (indicating that the Washington lower court was required to “make parenting plan decisions which are based on the actual circumstances of the parties and of the children as they exist at the time of trial;” finding that “nothing in [Washington’s] Parenting Act [provides] a trial court the authority to alter the physical circumstances of the parties in order to create an environment that is, in the trial court’s opinion, more desirable for the child than that which exists;” reversing an initial dissolution judgment that imposed a geographic restriction on a mother).
Both Mother and Father acknowledge that the visitation terms in the judgment are not designed for Mother’s continued residence in Ohio, and reversal of the trial court’s relocation order may render unfeasible other portions of the court’s judgment. Remand is warranted in this case to provide the trial court the opportunity to enter a judgment that does not exceed its authority and that reflects its determinations regarding the appropriate custody and visitation arrangements for Child.

VI. Conclusion
For the foregoing reasons, the trial court’s judgment is reversed, and the case is remanded.12
______________________________
Mary R. Russell, Judge


Teitelman, C.J., Fischer and Stith, JJ.,
and May, Sp.J., concur; Breckenridge, J.,
dissents in separate opinion filed; Price, J.,
concurs in opinion of Breckenridge, J.

SUPREME COURT OF MISSOURI
en banc
A.E.B., A MINOR BY NEXT FRIEND, )
L.D., AND L.D., INDIVIDUALLY, )
)
Respondent/Cross-Appellant )
)
v. ) No. SC91716
)
T.B., )
)
Appellant/Cross-Respondent )

DISSENTING OPINION

I respectfully dissent from the majority’s reversal of the trial court’s judgment because it erroneously required T.B. (Mother) to relocate back to Missouri. I agree with the majority’s holding that the trial court had no statutory authority to compel Mother to move from Ohio to Missouri and live in a three-county area. I also agree that Mother made clear in her testimony at trial that she did not want to live in Missouri. Nevertheless, Mother did not want to risk losing custody of Child if the trial court believed that the best interests of Child required Child to live in Missouri. She intentionally asked the trial court to enter the order she now challenges. She admitted into evidence Exhibit J, a proposed parenting plan titled “RESPONDENT’S PROPOSED PARENTING PLAN (MISSOURI),” providing for visitation by L.D. (Father) that could only be accomplished if Mother and Child lived in Missouri. She also testified at trial that this parenting plan was a “back-up plan if the Court believes that it is appropriate for [the parties’] daughter to stay … in St. Charles.” She further testified that under her alternative plan, Exhibit J, she would be given “sole physical and legal custody of [Child] here in the state of Missouri.” On this record, I would find that Mother invited the trial court error she now raises on appeal, so she is not entitled to relief from the erroneous provision in the judgment that required her to relocate back to Missouri.

Under the invited error rule, “a party is estopped from complaining of an error of his own creation, and committed at his request.” Sprague v. Sea, 53 S.W. 1074, 1078 (Mo. 1899). The invited error rule, as articulated by this Court, is sufficiently broad to apply in the circumstances of this case. “[A] party will not be heard to complain of alleged error in which, by his own conduct at the trial, he joined or acquiesced.” Taylor v. Cleveland, C.C. & St. L. Ry. Co., 63 S.W.2d 69, 75 (Mo. 1933);1 Ratcliff v. Sprint Missouri, Inc., 261 S.W.3d 534, 545 (Mo. App. 2008); see also Torrey v. Torrey, 333 S.W.3d 34, 38-39 (Mo. App. 2010). Although Father first raised the issue in his first parenting plan filed with his petition and in his testimony that he preferred a parenting plan in which he and Mother would share joint physical and legal custody of Child in Missouri, Mother joined and acquiesced in Father’s suggestion by her conduct at trial. Mother, intentionally and strategically, offered in evidence at trial a parenting plan that required her and Child to live in Missouri. As a consequence, Mother is not entitled to relief from the trial court error that she induced. See Taylor, 63 S.W.2d at 75.

Mother did not invite the trial court to erroneously restrict her Missouri residence with Child to a designated three-county area, however. Because the provision restricting her residence to three Missouri counties is beyond the error invited by Mother, I would strike that provision but would affirm the judgment in all other respects. Rule 84.14.
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PATRICIA BRECKENRIDGE, JUDGE

Opinion Footnotes

1 All references to section 452.375 are to RSMo Supp. 2009, which provides the version of the statute in place at the time the trial court entered its judgment

2 Jurisdiction is vested in this Court pursuant to MO. CONST. article V, section 10, as this case was transferred by the court of appeals.

3 Father’s second proposed parenting plan also offered Mother joint legal custody

4 It ordered that Mother and Father share joint legal custody of Child.

5 All references to section 452.310 are to RSMo Supp. 2009, which provides the version of the statute in place at the time the trial court entered its judgment.

6 Mother’s appeal suggests that the court’s relocation order infringes on the right to travel, but she acknowledges that she did not raise this constitutional argument before the trial court. This Court declines to explore whether the trial court’s judgment infringed on Mother’s constitutional rights, as she did not properly preserve her constitutional objections to the judgment. See Century 21-Mabel O. Pettus, Inc. v. City of Jennings, 700 S.W.2d 809,810 (Mo. banc 1985) (noting that constitutional questions must be presented at the earliest possible moment or they will be waived).

7 All references to section 452.377 are to RSMo 2000.

8 After Mother filed her appeal, Father cross-appealed to challenge the trial court’s decision to grant Mother sole physical custody of Child. Father seeks a declaration that Mother is not Child’s sole physical custodian. He asks this Court to modify the trial court’s judgment to declare that he has sole physical custody of Child in Missouri and that Mother may have reasonable visitation with Child while remaining in Ohio. Alternatively, he asks that the case be remanded for further findings regarding what custody arrangement is in the best interest of Child. Because this case is remanded, Father’s cross-appeal is not addressed in this opinion.

9 When a party to a custody judgment seeks to relocate his or her residence in compliance with section 452.377, the trial court must “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 [452.377.10].” Stowe v. Spence, 41 S.W.3d 468, 469 (Mo. banc 2001).

10 Mother had a right to move to Ohio with Child in July 2008 and to remain there during the pendency of the custody proceedings. And, unlike a litigant in a section 452.377 relocation case, Mother had no obligation to provide Father notice of her move to Ohio, nor did she have a burden to prove that her relocation to Ohio was in Child’s best interest and made in good faith before she could reside there. Cf. DeFreece v. DeFreece, 69 S.W.3d 109, 113 (Mo. App. 2002) (explaining that in a section 452.377 relocation the party wanting to move must provide notice and bear a burden of proving the relocation is made in good faith and is in the best interest of the child).

11 In this case, Mother’s move to Ohio was already accomplished at the time the trial court made its initial custody determination. Mother argues that her completed move, coupled with her assertions at trial that she did not want to relocate from Ohio, demonstrated that there was nothing for the trial court to consider under section 452.375.2(7) regarding an intent to relocate Child’s residence. As discussed further below, this Court finds nothing in the record that would result in a conclusion that Mother indicated an intent to relocate from Ohio to Missouri that required consideration under 452.375.2(7).

12 This Court makes no determinations as to the appropriate custody and visitation arrangements for Child.

Dissent Footnotes

1 This Court in Taylor referred to the invited error rule as ‘too well settled to require citation of authorities….” Taylor, 63 S.W.2d at 75.