In re Marriage of Abraham: Missouri's Relocation Statute Requires Strict Compliance With the Notification Requirements

Notice of intent to relocate children: if strict compliance with § 452.377 is required of the non-relocating parent, then strict compliance with the notice provisions should be required of the relocating parent. In re: Marriage of Abraham, No. 31099 (Mo. App. S.D., October 26, 2011), Bates, J.

The parties were divorced in 2006. In 2010, Mother sent a letter by certified mail to Father in which she proposed to relocate the child to Florida. An important element of this case is that the Father did not file an objection to relocation until 38 days after receipt of that letter. The Mother relied on the Western District case of Baxley v. Jarred, 91 S.W.3d 192 (Mo. App. W.D., 2002), to seek dismissal of his objection to the relocation. In short, since he did not file a timely objection, she argued that she had the right to relocate and the only argument left was how it impacted parenting time.

The Father challenged the contents of the Mother’s relocation letter and argued that, if strict compliance with § 452.377 is required of the non-relocating parent, then strict compliance with the statute is also required of the parent desirous of relocation. The trial court agreed and denied the Mother’s motion for summary dismissal of his objection. The Mother appealed.

Held: Affirmed.
The court’s opinion notes that it is in conflict with the Baxleyopinion. The opinion rejects the determination in Baxley. “We believe the legislature intended that the date for any legal obligation to begin for the non-relocating party was the date of the receipt of the certified letter which strictly complies with the provisions of the statute; it was intended as a bright line for parents, practitioners and the court.”

So what was missing from the Mother’s letter by certified mail? According to the opinion, “she did not give Father the actual specific address and mailing address of her intended new residence but rather claims that her statement that she would move to ‘Orlando, Florida’ was sufficient.” However, a parent is supposed to provide the specific address “if known” and the record showed that she knew that intended address, but failed to give it to Father.

“[T]he statutory purpose of requiring an actual address and a mailing address is for the benefit of the non-relocating party; a parent should be informed where his/her child will be living. Only in rare circumstances would it suffice to simply state the city and state.”

Failing strict compliance with the statutory requirements as to notice, the Mother was not eligible for a home-free pass to Florida.

Concurring Opinion, Bates, J.:
It is important to note that the parties here had a full hearing on the relocation issue as a result of the trial court’s denial of the Mother’s motion for summary dismissal of the Father’s objection to relocation. The concurring opinion agrees with the result reached by the majority for that very reason, i.e. it enabled a full and fair hearing on the issue of relocation. “I disagree, however, with the proposition that a parent seeking to relocate must strictly comply with the notice provisions in § 452.377.2. In my view, the effect of noncompliance with the statutory procedures in § 452.377 by either parent should be determined using a prejudice-based analysis.” In short, as long as a full hearing on the relocation issue is given when one party would be prejudiced by its denial, then strict compliance is not the real issue.

Source: The Missouri Bar

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