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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 ...


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