FROM THE CIRCUIT COURT OF JACKSON COUNTY, The Honorable Kevin
D. Harrell, Judge
Victor C. Howard, Presiding Judge, Lisa White Hardwick, and
Edward R. Ardini, Jr., Judges
WHITE HARDWICK, JUDGE
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.
and Procedural History
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.
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.
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.
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.
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.
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,
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.
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. 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.
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. 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.
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
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.
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]."
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.
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
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.
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.
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.
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
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.
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.
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.
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.
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
I -- GAL's Motion for Change ...