Cortez v. Cortez, No. SD 30099 (Mo. App. S.D., July 29, 2010)

August 8th, 2011

Mother appealed a judgment of the circuit court of McDonald County denying her request to re­locate with the parties’ daughter and ordering her to return the child to Missouri. The child resided primarily with Mother, and Father had visitation. On or about December 7, 2008, she sent Father a letter by certified mail notifying him that she would be moving from Noel, Missouri (where Father also resided) to Dallas, Texas in 60 days. Fifty-three (53) days after the date of Mother’s notice, Father filed an objection to Mother’s relocation and a motion to modify. Mother moved to Dallas with the child and did not inform Father prior to any ruling by the court on Father’s motions. After moving, Mother filed a motion to dismiss Father’s motions on the grounds that Mother acquired an absolute right to relocate child when Father failed to object to her proposed relocation within 30 days of receiving Mother’s notice. The trial court held an evidentiary hearing and some of Mother’s testimony included that she did not have family in Dallas, TX and the schooling she was seeking in Texas was to assist her in obtaining her GED. Father testified that he saw the child every day at school when she resided in Missouri, she stayed with him for an hour after school 3-4 times a week, and he had visitation every Wednesday until 8:00 p.m. and once every two weeks from Friday through Monday. The trial court denied the reloca­tion and pending motions to modify, maintained the original court order and ordered the Mother to return the child to Missouri. The Mother appealed on the same grounds for her request that Father’s pleadings be dismissed, claiming that she had an absolute right to relocate due to Father’s failure to object to her proposed relocation within 30 days of receiving notice. The Court of Appeals affirmed the judgment and pointed to Mother’s failure to include in her notice a “proposal for a revised schedule of custody or visitation with the child” as required in § 452.377.2(5). Her notice only stated that the parties needed to come to an agreement on visitation at some time in the future, which the Court of Appeals states is not the equivalent of the requirement under 452.377.2(5). Mother argues that strict compliance with § 452.377 is not required per Baxley v. Jared, 91 S.W.3d at 20506. But the court distinguishes the facts, as Baxley stands for the proposition that notice by certified mail is not required if actual notice is proven and all other requirements of § 452.377 are met.