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Gordon v. Epperly

Court of Appeals of Missouri, Western District

September 27, 2016

ROBERT GORDON, Guardian Ad Litem on Behalf of:
v.
BRADLEY G. EPPERLY, Respondent. G.J.E., I.G.E., and S.J.E.; AMY E. SCHRAMM f/k/a AMY E. EPPERLY, Appellant,

         APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, The Honorable Kevin D. Harrell, Judge

          Before Victor C. Howard, Presiding Judge, Lisa White Hardwick, and Edward R. Ardini, Jr., Judges

          LISA WHITE HARDWICK, JUDGE

         Robert Gordon, guardian ad litem ("GAL"), and Amy E. Schramm ("Mother"), appeal the judgment modifying custody of Mother and Bradley G. Epperly's ("Father") three children. The GAL and Mother contend the court erred in denying their motions for change of judge; failing to make findings detailing the factors that resulted in the court's rejection of the GAL's proposed custodial arrangement; and granting Father joint legal and joint physical custody. For reasons explained herein, we affirm.

         Factual and Procedural History[1]

         Mother and Father were married in 2001. They had three children: a daughter, born on February 13, 2003; a son, born on September 16, 2004; and a son, born on July 13, 2006.

         Mother and Father's marriage was dissolved on August 31, 2006. In the dissolution judgment, the court approved Mother and Father's agreed-upon parenting plan, which provided for Mother to have sole physical custody and the parties to share joint legal custody. With regard to Father's visitation, the parenting plan stated that the children "shall reside with [Mother] and for the time being, given the tender years of the minor children, [Father] shall have weekly visits in Kansas City, Missouri under the supervision of [Mother] at a minimum of 1 day per week as agreed by the parties." The court ordered Father to pay Mother $1000 per month in child support.

         At the time of the dissolution, Father was working for the Army National Guard. He served in Afghanistan from September 2009 to September 2010 and received several awards and commendations. From 2006 to 2011, when Father was not deployed overseas, Mother allowed Father to have some unsupervised visitation with the children in public places. Mother never allowed Father overnight visitation with the children, and she did not allow him visitation during major holidays except for a couple of Christmas Eves and a Memorial Day and/or Labor Day weekend. In late 2011 and 2012, paternal grandparents supervised Father's visits with the children at Mother's request.

         Father has a history of problems with alcohol. He sought in-patient treatment for his drinking in 2005 and 2012. Father last drank to intoxication in April 2012 and has not consumed any alcohol since March 2014. He regularly attends Alcoholics Anonymous and receives counseling. There was no evidence that Father ever drank around the children, and he has never been cited for an alcohol-related offense.

         In November 2012, Father filed a motion to modify the dissolution judgment to allow the parties to share joint physical custody of the children. After Father filed his motion to modify, Mother refused to allow paternal grandparents to supervise Father's visits and insisted that she supervise them.

         In April 2013, the court appointed Dana Outlaw as guardian ad litem for the minor children. Also in April 2013, Father filed a motion to lift the restrictions on his parenting time or, in the alternative, to substitute his present wife, whom he married in March 2013, as supervisor. Following a hearing and apparently upon the parties' agreement, [2] on July 19, 2013, the court ordered that Mother be removed as supervisor of Father's visitation and that Father be granted, at a minimum, weekly visitation with the children, to be supervised by paternal grandparents. Mother then filed a counter-motion to modify in which she asked the court to award her both sole physical and sole legal custody.

         Mother subsequently stopped allowing paternal grandparents to supervise Father's visitation. She offered Father supervised visitation only through the Layne Project, the Guardian Program, or therapists, at Father's expense.[3] Also, Mother requested that Father sign a contract, which contained restrictions on his visitation, before she would allow him to have visitation. On April 2, 2014, Father filed a family access motion. This motion was given a separate case number from Father's motion to modify. Nevertheless, the court entered an order stating that Father's family access motion would be heard at the trial setting on the custody modification case.

         Trial on Father's motion to modify, Mother's counter-motion to modify, and Father's family access motion was held on May 27-28, 2014.[4] Father, as movant, proceeded first and called two witnesses, while the guardian ad litem called two expert witnesses out of turn. By the end of the day on May 28, 2014, Father had not yet rested, and Mother had not yet called any witnesses. The case was continued to December 11, 2014, for further evidence.

         On June 18, 2014, Father filed a second family access motion. In this motion, he alleged that he had not been allowed visitation with his children since January 19, 2014. He requested an immediate hearing on the motion. The court set the hearing on the motion for August 20, 2014. Before the hearing, Mother filed a motion to consolidate the family access case with the modification case. Mother also filed a motion to appoint the guardian ad litem from the modification case to serve as guardian ad litem in the family access case, but the motion appears to have been erroneously filed in the original dissolution case.

         On August 20, 2014, Mother and Father appeared for the hearing on the family access case. Having not been made a party to the family access case, the guardian ad litem did not appear. According to Mother, the court asked counsel for Mother and Father if they wished to speak in chambers. Mother contends that her counsel told the court's clerk that she did not want to speak in chambers but wanted the proceedings to be on the record, while Father's counsel indicated that he wanted to speak in chambers. According to Father, however, the in-chambers conference was "an accommodation to Mother's counsel." The in-chambers conference lasted two hours. The guardian ad litem was not present, and no record of the in-chambers conference was made.

         Mother asserts that, in chambers, her counsel argued to the court that it could not proceed or take up any issues in the custody modification case without the guardian ad litem present. She also noted that only the family access case had been noticed for hearing. Additionally, she argued that the court's refusal to consolidate the custody modification case and the family access case subjected the parties to conflicting judgments. According to Mother, the court indicated to counsel that it was dismissing Father's second family access motion on the court's own motion and that the parties could either agree to supervised visitation through the Connections Supervised Visitation Program or Mother could supervise Father's visitation with the minor children as set forth in the original dissolution judgment. According to Father, Mother "refused all suggested solutions offered by [the court]."

         After the in-chambers conference, the court went on the record and stated that it was dismissing Father's family access case, thereby rendering moot Mother's motion to appoint a guardian ad litem and her motion to consolidate the case with the custody modification case. The court also stated that it was setting aside its July 19, 2013 order in the custody modification case. The court explained that, in the stipulation that formed the basis for that order, the parties had agreed to Father's having weekly visits with the children, supervised by paternal grandparents. Because Father alleged that he had not seen the children in seven months, the court decided to set aside that order and order the parties to follow the original dissolution judgment, whereby Mother would supervise Father's visitation. The court entered a written order to this effect on September 9, 2014.

         Meanwhile, Father filed a motion to remove Outlaw as guardian ad litem. In this motion, Father alleged that Outlaw, along with Mother's counsel, had instructed Mother to disregard the court's order to allow Father visitation with the children in accordance with the dissolution judgment. Mother filed a motion for a mistrial in the custody modification case or, in the alternative, to set aside the court's September 9, 2014 order because the court had no authority to enter the order, and the order put Mother and the children at risk of danger. The court held a hearing on the motions, took them under advisement, and set the case for a review hearing in two weeks "to make sure that the parties were complying" with the order to follow the dissolution judgment.

         On October 24, 2014, the court held its review hearing. The court heard arguments from counsel but did not take evidence. Father's counsel noted that Mother had not allowed Father to see the children for over nine months, while Mother's counsel argued that Mother had offered Father visitation supervised by third parties, but Father had not accepted. Father's counsel argued that Mother offered Father only visitation supervised by persons that he would have to pay to be the supervisor.

         After hearing counsel's arguments, the court stated that there was nothing ambiguous about the provision in the parties' dissolution judgment requiring that Mother allow Father one day of visitation each week, supervised by her. The court further stated that the parties were not following that judgment. The court issued a show cause order to Mother directing her to return in one week to show cause why she failed to comply with the dissolution judgment.

         On October 26, 2014, Mother, Father, and the children met for a supervised visit along with a mediator. This was the first time that Father had seen the children since January 19, 2014. After the visit, Mother requested a continuance of the show cause hearing, but the court denied her request.

         The court held the show cause hearing on October 31, 2014. According to Mother, she brought two witnesses, including a paid expert, to testify on her behalf, but the court refused to allow the testimony. Mother asserts that she was allowed to testify for approximately ten minutes, but the court allowed Father's counsel to repeatedly interrupt her. The record on appeal does not include a transcript of the hearing. It does not appear that a contempt order was entered.

         On November 4, 2014, the court disqualified Outlaw as guardian ad litem and appointed Robert Gordon in her place. The court also ordered a mistrial in the modification case due to Gordon's appointment, and the court set a new trial for April 27 through May 1, 2015. Two weeks after he was appointed, the GAL filed a motion for an automatic change of judge under Rule 51.05. The court denied his motion. In the meantime, Father filed an amended motion to modify custody in which he requested sole legal and sole physical custody.

         The court held a pretrial conference on December 10, 2014. According to Mother, the court told the parties that the April 27 through May 1, 2015 trial setting was a firm setting and would not be changed. On December 22, 2014, however, the court, on its own motion, reset the trial for April 13 through April 17, 2015. After Mother requested to continue this due to her counsel's unavailability, the court told the parties that it would do so only if all the parties agreed. Ultimately, after the parties agreed, the court continued the trial to April 20 through 24, 2015. When Father later requested that the court continue a pretrial conference set for April 1, 2015, the court granted his request.

         Mother then filed a motion for change of judge for cause. In this motion, she argued that, because the presiding judge of the 16th Judicial Circuit had reassigned the trial judge to non-domestic cases, effective January 1, 2015, the trial judge lacked the authority to hear the case. Mother contended that this case was the only domestic case that the trial judge had retained after the presiding judge's administrative order. The court denied the motion. Mother filed an amended motion for change of judge for cause due to the court's alleged prejudice and bias and attitude of personal enmity toward her and in favor of Father. The court denied the motion.

         Trial was held on April 20 through 24, 2015. Following the trial, the court entered its judgment modifying the parties' dissolution judgment to award Father and Mother joint legal and joint physical custody. The court adopted and modified Father's proposed parenting plan. Pursuant to the court's modified plan, the children were to continue to reside with Mother, with Father having parenting time every other weekend, every Wednesday evening, alternating holidays, and half of the summer. The court also awarded Father compensatory time to make up for the nine months in 2014 that Mother did not allow Father visitation. The court ordered Father not to consume alcohol at any time prior to or during any period of parenting time and to install an ignition lock on his vehicle for six months after entry of the modification judgment, regularly attend Alcoholics Anonymous at least four times a month, obtain a sponsor at Alcoholics Anonymous, and continue individual counseling for 12 months. Mother and the GAL appeal. Additional facts will be set forth as necessary to address the points on appeal.

         Standard of Review

         Appellate review of a judgment modifying a dissolution decree is under the standard of Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Lueckenotte v. Lueckenotte, 34 S.W.3d 387, 397 (Mo. banc 2001). We will affirm the circuit court's judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Id. We view the evidence and any reasonable inferences therefrom in the light most favorable to the court's decision and disregard all contrary evidence and inferences. Pratt v. Ferber, 335 S.W.3d 90, 93 (Mo. App. 2011). In doing so, we recognize that "'[j]udging credibility and assigning weight to evidence and testimony are matters for the trial court, which is free to believe none, part, or all of the testimony of any witness.'" Wennihan v. Wennihan, 452 S.W.3d 723, 727 (Mo. App. 2015) (citation omitted).

         Analysis

         Point I -- GAL's Motion for Change ...


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