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Wuebbeling v. Clark

Court of Appeals of Missouri, Eastern District, First Division

August 9, 2016

RONALD WUEBBELING, Respondent,
v.
JILL CLARK, f/k/a JILL WUEBBELING, Appellant.

         Appeal from the Circuit Court of St. Louis County, Honorable John R. Essner

          ROY L. RICHTER, Judge

         Jill Clark, formerly known as Jill Wuebbeling ("Mother") appeals from the trial court's September 8, 2015 amended judgment and the trial court's July 24, 2015 judgment. The September 8, 2015 amended judgment granted the guardian ad litem's motion to amend and ordered Mother and Ronald Wuebbeling ("Father") to pay certain amounts for counseling services as well as outstanding guardian ad litem ("GAL") fees. The July 24, 2015 judgment, inter alia, sustained Father's motion for contempt and motion for family access and awarded compensatory time to him for Mother's denial of his custody for 24 days, and ordered Mother and the children to participate in counseling at Mother's expense; and sustained Father's motion to abate child support, abating Father's obligation to pay child support for the months of November 2014 through July 2015 and ordering Mother to reimburse Father for nine months of the child support. We dismiss in part, affirm in part, and reverse in part.

         I. Background

         Mother and Father were divorced pursuant to an amended decree of dissolution on June 2, 2006. The judgment was modified on October 30, 2007. Injunctive orders regarding custody and visitation were entered on June 23, 2008, and December 3, 2008. The judgment was modified again on February 24, 2010, following a trial, which expanded Father's visitation time to receive custody of his two children, "Daughter" (born July 5, 2000), and "Son" (born September 10, 2003), on the first and third Fridays of each month at 6 p.m., extending until 4 p.m. on Saturday on the first weekend of the month but lasting until Sunday at 6 p.m. on the third weekend of each month. Father was additionally granted custody on various holidays and special days as well as for one week in the summer. The trial court noted, "The sad and frustrating history of the litigation between these two parents prior to this modification judgement is thoroughly detailed in the February 24, 2010 judgement." After that, the trial court approved the extension of services of the Family Court Exchange Center "in consideration of the contentious history of this family." Although Mother requested a temporary restraining order and argued that Father's time with the children should be supervised, the trial court denied such request in August 2014.

         Father filed a motion for family access on August 1, 2014. He filed a motion for contempt on September 15, 2014, and he filed a motion for abatement of child support on October 27, 2014. Over several days in January, February, March and May of 2015, a hearing was conducted on the motions. The trial court issued its Judgment on July 24, 2015, regarding these three motions, sustaining Father's motion for contempt and awarding compensatory time for Mother's denial of his custody for 20 days in the months of July, August and mid-September of 2014; sustaining Father's motion for family access and awarding compensatory time for Mother's denial of his custody time on four additional days on September 26, October 10 and 24, and November 7, 2014, and ordering Mother and the children to participate in counseling as detailed in an attached separate order at Mother's expense; denying Father's request for attorney's fees; sustaining Father's motion to abate child support, abating Father's obligation to pay child support for the months of November 2014 through July 2015 and ordering Mother to reimburse Father for nine months of the child support for a total of $8, 271; and ordering Mother to reimburse Father for court costs in this matter including costs incurred for repeated attempts to serve Mother with summons, totaling $580. All parties filed post-trial motions. On September 8, 2015, the trial court issued an amended judgment granting the GAL's motion to amend, ordering Mother to pay $753.33 and Father to pay $661.66 to the counselor for his services and Mother to pay $1, 813 and Father to pay $600 to the GAL for outstanding fees.

         This appeal follows.

         II. Discussion

         Mother alleges five points on appeal. In her first, second, and third points, Mother contends the trial court erred in finding Mother in contempt for interfering with Father's court-ordered visitation in July and August of 2014, erred in sustaining Father's Motion for Family Access and ordering Mother and the children participate in counseling, and erred in sustaining Father's Motion to Abate Child Support and ordering Mother to reimburse Father in the amount of $8, 271, because the weight of the evidence shows Father failed to meet his burden to prove Mother caused the lost days of visitation, or that she denied or interfered with visitation without good cause. Mother argues (a) Father admitted he never went to the Exchange Center on these dates or made other arrangements with Mother for custody exchanges on these dates, as required by the Parenting Plan, (b) Mother did not contumaciously seek to deprive Father of his visitation on these dates but made good faith efforts to follow the Parenting Plan, (c) the children, of sufficient age and maturity, independently and without influence of Mother, refused visitation with Father; and (d) Mother had good cause not to bring the children to the Exchange Center after Father physically and emotionally harmed the children at the Exchange Center to such an extent that the Exchange Center refused to provide further service to Father.

         Fourth, Mother alleges the trial court erred in ordering Mother to pay the GAL the sum of $1, 813 because it is an abuse of discretion under Section 452.423.5 to require Mother to pay seventy-five percent of the GAL fees, in that Father, through his conduct, necessitated the appointment of the GAL, and should have been required to pay all of the GAL fees in what Mother maintains has been a meritless series of motions.

         Fifth and finally, Mother alleges the trial court erred in ordering Mother pay to John Borders the sum of $753.33 for counseling because the trial court lacked the authority to enforce a judgment it previously set aside, in that (a) the trial court sustained Mother's motion to set aside the order of August 8, 2014, with regard to counseling; (b) the fee order of $753.33 relates to counseling flowing from the order of August 8, 2014; and (c) a trial court has no authority to enforce a fee award when the underlying judgment for the fee award is void.

         A. Standard of Review

         When reviewing a trial court's decision after a bench trial, we will sustain the judgment unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). In a civil contempt proceeding, an appellate court applies the same standard. Ream-Nelson v. Nelson, 333 S.W.3d 22, 28 (Mo. App. 2010). Moreover, "[a] trial court's judgment in a civil contempt proceeding will not be disturbed on appeal absent a clear abuse of discretion." Id. "Judicial discretion is abused when the trial court's ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration." Id. We defer to the trial court's determinations of credibility and view the evidence and the inferences that may be drawn therefrom in the light most favorable to the judgment. Vinson v. Adams, 192 S.W.3d 492, 494 (Mo. App. E.D. 2006). Where there is conflicting evidence, the trial court, in its discretion, may accept or reject all, part, or none of the testimony it hears. Id. "We exercise extreme caution in considering whether a judgment should be set aside on the ground that it is against the weight of the evidence, and will do so only upon a firm belief that the judgment was wrong." Id., quoting In re D.M.S., 96 S.W.3d 167, 171 (Mo. App. S.D. 2003).

         B. Analysis

         Point I: Motion for Contempt

         We first address the motion for contempt Father filed on September 15, 2014, alleging repeated instances in which his custody time had been denied by Mother in August and September 2014, alleging Mother had not acted in such a way so as to foster the respect, love, and affection of the children for him but, rather, that she had acted to alienate the children from him. The trial court granted Father's motion and Mother alleges this to be in error.

         Before addressing Mother's claims, this Court must, sua sponte, determine whether Mother has presented an appealable judgment of contempt. See Jones v. Jones, 296 S.W.3d 526, 528 (Mo. App. W.D. 2009). To be appealable, a civil contempt order must be final. In re Marriage of Crow and Gilmore, 103 S.W.3d 778, 780 (Mo. banc 2003).

         "Where a contempt order has the purpose of coercing a party to comply with a court order rather than punishing a party to protect, preserve, and vindicate the power and dignity of the court, the order is one for civil contempt." City of Pagedale v. Taylor, 790 S.W.2d 516, 518 (Mo. App. E.D. 1990). Here, the trial court noted Father's request that Mother pay a fine up to $500 for her noncompliance, but the court made no such order at this time ...


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