Court of Appeals of Missouri, Eastern District, Third Division
Appeal from the Circuit Court of St. Charles County. Honorable Ted Clint House.
FOR APPELLANT: Daniel R. Schramm, Daniel R. Schramm, L.L.C., Chesterfield, Missouri; Dara M. Strickland, The Strickland Law Firm, Chesterfield, Missouri.
FOR RESPONDENT: Richard A. Gartner, Jason R. Caudill, The Gartner Law Firm, St. Peters, Missouri.
Kurt S. Odenwald, Presiding Judge. Robert G. Dowd, Jr., J., Concurs. Gary M. Gaertner, Jr., J., Concurs.
Kurt S. Odenwald, Presiding Judge.
Maria J. Hazelbaker (" Mother" ) appeals from the judgment of the trial court modifying the legal and physical custody provisions of a January 17, 2012 dissolution decree. The decree granted Mother and William M. Hazelbaker (" Father" ) joint legal and physical custody of their minor child, Jenika (" Child" ), and named Father the residential parent. Mother filed a motion seeking sole legal and physical custody of Child, and Father filed a cross-motion to modify seeking to restrict Mother's temporary custody and increase her child support obligations. Following a trial on the motions, the trial court granted Father sole legal custody of Child and modified the parties' physical custody periods as set forth in a new parenting plan. On appeal, Mother argues tat the trial court erred in admitting the testimony of Dr. Ann Duncan-Hively (" Dr. Duncan-Hively" ) because the parties' settlement agreement prohibited Father from calling Dr. Duncan-Hively as a witness in any future proceeding concerning the custody of Child. Mother also asserts the trial court erred by failing to appoint a guardian ad litem (" GAL" ) because Section 452.423 mandates the appointment of a GAL in any proceeding in which abuse or neglect is alleged. The parties' agreement to preclude Dr. Duncan-Hively as a witness is unenforceable. In addition, the circumstances presented by the parties' motions and evidence did not require the appointment of a GAL. Accordingly, we find no error and affirm the judgment of the trial court.
Factual and Procedural Background
Mother and Father were divorced on January 17, 2012. The parties agreed to a marital settlement agreement, which the trial court approved and incorporated into the dissolution decree. The trial court awarded Mother and Father joint legal and physical custody of Child. Father was named the residential parent and Mother was initially awarded only supervised visitation. The trial court retained jurisdiction for four months, during which time Mother was to seek treatment for her obsessive compulsive disorder with a therapist of her choice and to participate with Father and Child in family therapy with Dr. Duncan-Hively. The order also named Dr. Duncan-Hively as Child's therapist. As the part of their marital settlement agreement, the parties stipulated that " [n]either party nor the minor child
shall call Dr. Ann Dell Duncan-Hively as a witness, expert or otherwise, in any future proceedings concerning the custody of the child." The settlement agreement further provided that after three months, Mother would be granted unsupervised visitation and temporary custody under a substituted parenting plan.
Four months later, on May 14, 2012, the trial court amended the judgment nunc pro tunc. Consistent with the parties' settlement agreement, the trial court granted Mother unsupervised visitation and temporary custody pursuant to a substituted parenting plan. The judgment further ordered that no child support would be paid by either party.
On February 26, 2013, Mother filed a two-count motion to modify. Count I sought a change in custody and Count II requested an award of child support. Mother alleged a substantial continuous change in circumstances that required the judgment be modified. Specifically, Mother alleged the following: Father engages in parental alienation and emotional abuse; Father kidnapped child by taking her out of the country without Mother's knowledge; Father coerces Child into lying and tells Child lies about Mother; Father fails to inform Mother about Child's medical appointments and extracurricular activities; and Father tells Mother's family and friends that Mother sexually molested Child. Mother also requested the court to order an alternative therapist for Child, alleging that Dr. Duncan-Hively did not act impartially and that seeing a different therapist would be in Child's best interests.
On May 10, 2013, Father filed a cross-motion to modify. Father requested that the court award him sole legal custody of Child, restrict Mother's temporary custody periods, and require Mother to pay child support.
A trial was conducted on the parties' motions on July 9, July 10, and August 6, 2013. At trial, Father called Dr. Duncan-Hively as a witness. After Dr. Duncan-Hively answered three questions, Mother objected to allowing testimony from Dr. Duncan-Hively, citing the stipulation in the parties' settlement agreement prohibiting any party from calling Dr. Duncan-Hively as a witness in any future proceeding concerning the custody of Child. The trial court overruled the objection on the ground that the provision excluding Dr. Duncan-Hively as a witness was unenforceable.
The trial court issued its findings of fact, conclusions of law, and judgment on the parties' cross-motions to modify on October 11, 2013. The judgment awarded Father sole legal custody and modified the physical custody schedule pursuant to a new parenting plan. Both parties' requests for child support were denied. On November 7, 2013, Mother filed a motion for a new trial, or in the alternative, to amend the modification judgment. In her motion, Mother asserted that the trial court erred in allowing Dr. Duncan-Hively to testify and in failing to appoint to a GAL.
The trial court did not rule on Mother's post-trial motion within ninety days. Thus, under Rule 81.05(a)(2), Mother's motion was deemed overruled and the judgment became ...