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Keel v. Keel

Court of Appeals of Missouri, Eastern District, Second Division

September 2, 2014

KELLY S. KEEL, Petitioner/Appellant,
EDWARD W. KEEL, Respondent/Respondent

Page 867

Appeal from the Circuit Court of St. Louis County. Hon. John N. Borbonus.

For Petitioner/Appellant: Alexandra M. Hart, Michelle Hammond, Joshua B. Hutkins, Clayton, MO.

For Respondent/Respondent: Lisa Moore, Alan E. Freed, Clayton, MO.

Sherri B. Sullivan, P.J. Mary K. Hoff, J., and Philip M. Hess, J., concur.


Page 868

Sherri B. Sullivan, P.J.


Kelly S. Keel (Mother) appeals from the trial court's Full and Final Judgment Modifying Family Court Judgment (judgment) entered June 25, 2013. We affirm.

Factual and Procedural Background

On February 18, 2010, the second marriage of Mother and Edward W. Keel (Father) was dissolved in Oklahoma. The parties had first married on August 30, 1997; divorced; then remarried on March 23, 2002. In conjunction with the dissolution, the district court of Comanche County, Oklahoma entered a Joint Child Custody Plan (Custody Plan or Plan) giving the parties joint legal and physical custody of their two children, J., born February 8, 2005, and W., born September 8, 2008, with Mother having primary physical custody. Pursuant to the Custody Plan, Father had visitation on the first and third weekends of each month from Friday until Sunday; four weeks in the summer, divided into two fourteen-day blocks of time, and various holiday periods.

The Custody Plan also provides that the parent having physical custody of the children

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shall have the discretion to decide all routine matters; but both parties shall confer and attempt to jointly decide matters concerning method of discipline, schools, health care, religious instruction, summer camps, church schools, special event trips, travel, and any other area requiring decisions that affect the growth and development of the children.[1]

The Custody Plan provides that to ensure each party's continuing association with the children, " in the event of a time conflict respecting a parent's entitlement to the physical custody of the children, as above provided, both parties shall work together reasonably in advance for alternative times for physical custody, if necessary."

With regard to transportation costs, the Plan provides that Father shall be responsible for 86.9% of all visitation transportation costs to and from Mother's home for the retrieval and return of the children to Mother's home associated with his visitation with the children and Mother shall be responsible for the remaining 13.1% of the visitation transportation costs. The Plan dictates that if the parent entitled to physical custody of the children is to be out of town, that parent shall provide to the other the first opportunity to assume physical custody of the children during the time of such trip.

The Plan further stipulates that " each party shall be entitled to telephone the children at all reasonable times and the children shall be entitled to telephone their parents at any time. Each party shall be entitled to participate in all birthday, school or extracurricular activities of the children and each party shall keep the other informed of all such events on a regular basis."

The Plan mandates that " each party shall be equally entitled to access and have all medical, hospital, school and all other records of the children and neither party shall inhibit or interfere with such access and, in the event that any doctor, hospital, teacher or other person does not freely grant such access, each party shall take such action as is necessary to cause such access to occur."

Both Mother and Father agreed and signed this Custody Plan.

At the time of the dissolution, the family had lived at Fort Sill in Oklahoma since 2006, as Father was a member of the United States Army. Soon after the entry of the decree in February 2010, Mother relocated with the children to St. Louis, Missouri. In April of 2010, Father was transferred to Fort Hood, Texas, where he waited for pending deployment orders to Iraq. In the summer of 2010, Father met his fiancé e, Yanneth.

Father's Motion to Modify

In July of 2011, Father registered the Oklahoma dissolution judgment and Custody

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Plan as a foreign judgment in the trial court. He also filed a Motion to Modify (motion to modify), alleging Mother was restricting him from reasonable contact with the children, had made unilateral decisions and refused to provide him information about them. Father requested the trial court to modify the judgment to provide longer and more frequent blocks of custody time to Father, provide provisions regarding contact with Father and his family in the event of deployment, and a reduction in child support.

Mother's Answer to Motion to Modify

On January 4, 2012, Mother filed her answer to Father's motion to modify and a countermotion to modify. Mother alleged that Father refused to effectively communicate with her and joint legal custody was no longer workable; Father was inconsistent with his phone contact; Father had chosen not to exercise visitation times with children; and Father's income had increased. Mother requested the trial court to award her sole legal custody; amend the visitation schedule pursuant to her Proposed Parenting Plan which decreased Father's weekday, summer and holiday visitation time; order Father to pay Mother's attorney's fees and 100% of transportation costs for visitation, uncovered medical expenses, education and extraordinary expenses; obligate Father to maintain a life insurance policy in the amount of $1,000,000 for the children; and obligate Father to maintain college savings plans sufficient to cover the cost of tuition and books for four years at the University of Missouri-Columbia.

Father's Motion for Contempt and Motion to Enforce Custody

On May 22, 2012, Father filed a motion for contempt of the Oklahoma decree and Custody Plan, alleging Mother had willfully violated the terms by failing to obey the provision requiring her to pay her 13.1% share of the children's transportation costs; failing to abide by the provision allowing Father first custody of the children by leaving the children with others while traveling out of town rather than giving Father the right to care for the children; making unilateral decisions regarding the children's health and well-being, including medical decisions; and advising Father she would not be consulting with him regarding further medical decisions.

On May 22, 2012, Father also filed a motion to enforce custody, alleging that pursuant to the Oklahoma decree and Custody Plan, Father is to have summer visitation with the children June 15 through June 30 and August 1 through August 15 and pursuant to the judgment, " both parties shall work together reasonably in advance for alternative times for physical custody, if necessary." Father maintained he notified Mother that he received orders transferring him from his current base in Texas to a new base in Kansas and the time frame in which Father must clear his old base and report to his new base is from June 15 through June 30, and he has no input as to the dates he is assigned to clear a base and report to a new base. Father maintained the children resume school such that it is not in their best interest that he retain custody of them until August 15 but return them to Mother's custody prior to the start of school, so Father requested alternative physical custody times for his summer visitation but Mother has refused to alter the summer period of June 15 through June 30. Father requested an order of the court finding an alternative physical summer custody time for him to have the children for two weeks during

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the month of July and alter his second two weeks so the children had a weekend prior to going back to school in August.

On May 23, 2012, the trial court issued an order to show cause to Mother as to why she should not be held in contempt of the dissolution judgment and Custody Plan, for the reasons stated by Father in his motion for contempt. The trial court also issued an order that Father shall have summer custody of the children from July 20 through August 12, 2012.

Father's Amended Motion to Modify and Motion for Guardian ad Litem

On June 29, 2012, Father filed a motion for the appointment of a guardian ad litem (GAL) and his first amended motion to modify. In the motion for GAL, Father alleged a GAL needed to be appointed because of Mother's behavior, behavior which likewise was the basis for the amended motion to modify. In support of both motions, Father specifically claimed Mother had: (1) engaged in a pattern of behavior restricting, limiting and interfering with Father's physical custody times, contact with the children and legal custody rights regarding the children; (2) engaged in a pattern of behavior intentionally designed to ensure Father does not have a frequent, continuing and meaningful relationship with the children; (3) misrepresented information and facts and made disparaging comments about Father directly to the children in an effort to alienate and destroy the relationship between the children and Father; (4) intentionally limited and denied Father's access to medical, educational and developmental information regarding the children as well as instructed others to deny and limit Father's contact and access to the children; (5) told Father she will not consult with Father regarding decisions that affect the children and she will not notify Father of medical appointments for the children; and (6) failed and refused to allow the children reasonable contact with their paternal grandparents, stepsiblings and stepmother and engaged in behaviors intended to negatively impact the relationship between the children and their paternal grandparents, stepsiblings and stepmother. In the motion for GAL, Father contended that Mother's behavior was damaging, detrimental, and emotionally abusive, and would have a lifelong negative impact on the children, and it was in the best interest of the children that the court appoint a GAL. In the amended motion to modify, Father requested the court grant him sole physical custody and order Mother to pay a portion of his attorney's fees.

On July 2, 2012, the court granted Father leave to file his amended motion to modify and granted his motion for GAL. M. Jill Wehmer was appointed as guardian ad litem and entered her appearance in the case on July 11, 2012.

On August 6, 2012, Mother answered the court's order to show cause claiming she was only required to pay " reasonable" transportation costs; she is unemployed so her trips out of town were not " on business" as stipulated in the Custody Plan so she did not have to give Father first option of physical custody while she was out of town; and that he had been in Iraq for twelve months while she scheduled medical appointments for the children and if he was in town he would be able to schedule them as well. Mother also filed her answer to Father's amended motion to modify, essentially denying all of Father's allegations of her noncompliance with the Custody Plan's provisions or of any misconduct with regard to deliberately interfering

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with Father's physical and legal relationship with his children.

On February 25, 2013, Father filed a motion for preliminary injunction and temporary restraining order to prohibit Dr. Michelle Ruffy's ...

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