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In re Marriage of M.A.

May 11, 2004

IN RE THE MARRIAGE OF M.A. AND M.S.
M.A., PETITIONER/APPELLANT
v.
M.S., DEFENDANT/RESPONDENT.



Appeal From: Circuit Court of St. Louis County, Hon. Joseph A. Goeke, III

SYLLABUS BY THE COURT

Mother appeals from the court's judgment in a proceeding to modify the custody and visitation provisions of a February 21, 1995, dissolution decree. Father had filed a motion asking the court to allow his visits with the parties' two children to be unsupervised and to change the children's custodial arrangement from sole legal custody in mother to joint legal custody. Mother moved to dismiss father's motion for unsupervised visitation and moved that father's visitation be terminated pursuant to section 452.400.1, RSMo 2000. She also filed a counter-motion to modify, seeking termination of father's visitation. The court denied the motion to dismiss and terminate visitation. After an evidentiary hearing, the court granted father's request that his visitation with son no longer be supervised, but ordered the visits with daughter continue to be supervised until the parties agreed otherwise or until further order of the court. The court also granted father's request for joint legal custody and designated father's present wife as supervisor of his visitation.

AFFIRMED IN PART; REVERSED IN PART; REVERSED AND REMANDED IN PART;

TRANSFERRED TO MISSOURI SUPREME COURT.

Division Two holds: (1) Section 452.400.1, RSMo 2000, applies in modification proceedings and prohibits a court from granting visitation if visitation is prohibited by the version of the statute in effect when the motion to modify was filed.

(2) When both expert witnesses and guardian ad litem testified that son should be given counseling before being told of father's abuse of daughter and before eliminating supervision requirement on father's visitation with him, and there was no contrary evidence, the court's order ordering immediate unsupervised visitation was not supported by substantial evidence. Further, it was erroneous because the court did not require the parties to return to court for a re-evaluation of son's best interests with respect to visitation after he was told of abuse and before eliminating the supervision requirement.

(3) The court erred in granting joint legal custody when there was no evidence that both parents had a commonality of beliefs concerning parental decisions and a willingness to function as a parental unit.

(4) The court's order designating father's present wife as supervisor of his visitation was void because no pleadings were filed requesting that father's wife be appointed as supervisor and no evidence was presented of her qualifications to be a supervisor.

The opinion of the court was delivered by: Kathianne Knaup Crane, Judge

Opinion Vote: AFFIRMED IN PART; REVERSED IN PART; REVERSED AND REMANDED IN PART; TRANSFERRED TO MISSOURI SUPREME COURT. Norton, P.J. and Hoff, J. concur.

Opinion:

Mother appeals from the judgment of the trial court in a proceeding to modify the custody and visitation provisions of a February 21, 1995, dissolution decree. Father had filed a motion requesting the court to allow his visits with the parties' two children to be unsupervised and to change the children's custodial arrangement from sole legal custody in mother to joint legal custody. Mother moved to dismiss father's motion for unsupervised visitation and moved that father's visitation be terminated pursuant to Section 452.400.1 RSMo (2000). She also filed a counter-motion to modify, seeking termination of father's visitation. The trial court denied the motion to dismiss and terminate visitation. After an evidentiary hearing, the trial court granted father's request that his visitation with son no longer be supervised, but ordered the visits with daughter continue to be supervised until the parties agreed otherwise or until further order of the court. The trial court also granted father's request for joint legal custody and designated father's present wife as supervisor of his visitation.

On appeal mother contends that the trial court erred in not terminating father's visitation pursuant to section 452.400.1 RSMo (2000), in giving father unsupervised visitation of son, in declaring that supervised visitation of daughter should be eliminated after she was informed of father's sexual abuse of her as an infant and toddler, in awarding joint legal custody of son and daughter, and in ordering that father's present wife serve as supervisor of father's visitation. Father did not file a brief within the extended time granted to him and did not timely seek another extension of time in which to do so.

We reverse the trial court's denial of mother's motions seeking termination of father's visitation of daughter. We reverse the trial court's award of joint legal custody and designation of father's present wife as supervisor of his visitation, and we reverse and remand the trial court's elimination of supervised visitation of son. Because of the general interest and importance of the question of whether section 452.400.1 applies in modification proceedings, we transfer to the Missouri Supreme Court.

FACTUAL BACKGROUND

Mother, M.A., and father, M.S., were married in 1986. On July 6, 1990, an infant girl, R.S., was born in Peru. On July 13, 1990, an infant boy, J.S., was born in Peru. Mother and father traveled to Peru in October, 1990, to meet and adopt R.S. ("daughter") and J.S. ("son") and stayed three to four months. Daughter and son lawfully immigrated to the United States.

While in Peru, father sexually abused daughter. He thereafter abused her at different times for approximately 18 months. As a teenager, father had molested his young cousin (approximately 3 years old) in a similar manner.

Father confessed to his clergyman in 1992 that he had been molesting daughter, and told mother. After this confession, father abused daughter two more times. His clergyman referred father to a psychologist, who reported the abuse to the Division of Family Services (DFS). Father was charged with and pleaded guilty to two counts of sodomy*fn1 and was given a suspended imposition of sentence and placed on probation for five years. Because of the molestation of daughter, mother filed for dissolution.

A term of father's probation was that he attend counseling. He successfully completed the sex-offender program at Behavioral Science Institute (BSI) in 1999. He voluntarily sought additional counseling after the completion of the BSI program.

PROCEDURAL BACKGROUND

Mother and father's marriage was dissolved on February 21, 1995. The dissolution decree gave mother primary legal and physical custody of son and daughter and granted father supervised visitation of son and daughter for four hours per week. The visitations were to be supervised by DFS or someone approved by DFS in advance in writing. The judgment was modified on April 21, 1999, pursuant to the parties' "Consent Agreement" on father's motion to modify, to allow father six hours a week of supervised visitation. DFS would no longer supervise the visits; the supervisors were to be selected by Marie Clark or any psychologist at the Behavioral Science Institute in accord with written criteria developed by Ms. Clark and Dr. Terrence Rohen and upon consultation with Dr. Rohen. Visitation was again modified on June 7, 2001, in advance of mother, son and daughter's relocation to New Jersey, pursuant to the parties' "Family Court Modification Agreement." This agreement allowed father to have supervised visitation once each quarter for a period not less than seven days or more than thirty days. Father's present wife, D.S., was "not to be eliminated" from the evaluation process as a supervisor.

Father filed his motion to modify on December 6, 2001. Mother filed a motion to dismiss father's motion and to terminate father's visitation pursuant to section 452.400.1 RSMo (2000) and Hoskins v. Box, 54 S.W.3d 736 (Mo.App. 2001). Mother also filed a counter-motion to modify that sought termination of father's visitation rights. The trial court denied mother's motion to dismiss and terminate visitation on the grounds that father's motion to modify was governed by section 452.400.2, which does not contain the restrictions in section 452.400.1. The court held an evidentiary hearing on father's and mother's modification motions.

In its order and judgment, the trial court found that father had successfully completed a sexual abuse program and was therefore rehabilitated. It found that son was not at risk from father, and that it was in son's best interest to eliminate supervision of father's visitation with him. It also found that the risk father would abuse daughter in the future was low, and it was in daughter's best interest to have unsupervised visits with father, but that her visitation should remain supervised until she had been told of father's past abuse of her. It found that Ms. Clark had withdrawn from participation in the selection of supervisors for visitation because of the actions of both mother and father. It found: "Since December 2001 there has been no one available to select additional supervisors because Mother has refused to a (sic) agree to a replacement for Ms Clark" and "Mother's ...


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