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Massman v. Massman

Court of Appeals of Missouri, Eastern District, Fifth Division

December 6, 2016

DALE G. MASSMAN and MARANDA J. MASSMAN, Respondents,
v.
NICOLE MASSMAN, Appellant.

         Appeal from the Circuit Court of Osage County Honorable Robert D. Schollmeyer

          LAWRENCE E. MOONEY, JUDGE.

         The mother, Nicole Massman, appeals the judgment entered by the Circuit Court of Osage County granting visitation with her minor child to the paternal grandparents, Dale and Maranda Massman. The grandparent-visitation statute requires, inter alio, that a grandparent be unreasonably denied visitation for a period exceeding 90 days in order to obtain court-ordered visitation. The grandparents neither pled nor proved such a denial of visitation. In failing to consider this statutory requirement, the trial court erroneously applied the law. Therefore, we reverse.

         Factual and Procedural Background

         The mother and the child's father, Brent Massman, were married and had one child, born in 2012. The grandparents, Dale and Maranda Massman, were the father's parents. The mother and the father were separated and living apart when the father died in December 2014, shortly before the child's third birthday. At the time of his death, the father had custody of the child on alternate weekends and every Wednesday night, and the grandparents regularly spent time with the child during the father's custody time.

         According to the grandmother's testimony, following the father's death, the grandparents saw the child four times in January, [1] twice in February, [2] and twice in March 2015.[3] The grandmother testified that they also sometimes saw the child at church services, attended parties at the child's daycare, and were never denied the opportunity to attend events at the daycare. She stated that she telephoned the mother, sometimes numerous times per week, but that the mother did not always call back. The grandparents filed a petition in mid-April 2015 alleging that the mother had restricted their contact with the child and seeking court-ordered visitation with her. The grandparents sought "at a minimum" an amount of time comparable to a traditional Siegenthaler schedule: the entirety of every other weekend, every Wednesday evening, every other Thanksgiving, days immediately before and after Christmas, days at Easter, the day before or after the child's birthday, and two weeks each summer.[4] The grandparents also asked the court to order the mother to keep them informed regarding the child's medical condition. The grandparents' petition did not identify any period when they had been denied visitation for more than 90 days.

         The grandparents visited with the child on a monthly basis after filing their petition although they had no visitation for about 70 days immediately surrounding their petition filing. The grandmother testified at trial that the time they had with the child was not unreasonable, but they wanted a set schedule of visits, including overnight visits with the child. The grandmother stated that she wanted one weekend per month with the child, time at holidays and the child's birthday, and a set schedule.

         The mother testified that after the father's funeral, the child suffered from nightmares and night terrors, and awoke screaming some eight to ten times per night. In the year between the father's death and trial, the child's sleep situation had improved so that she was awakening only one to three times per night. The mother testified that she had no objection generally to the child having overnight visits with the grandparents and that she was following the advice of the child's counselor in scheduling visitation and specifically overnight visitation. The mother also stated she did not object to, nor had she ever objected to, the kind of time the grandmother testified that she wanted so long as the mother's weekend work schedule was considered.

         The trial court found that the mother "restricted the contact between [the grandparents] and the minor child and the contact that has occurred is found to be unreasonable by this Court pursuant to the terms of Section 452.402.1(2) RSMo."[5] The trial court made no finding that the grandparents had been unreasonably denied visitation for more than 90 days, nor did the court acknowledge section 452.402.1(4), which requires such a denial of visitation. The court granted the grandparents one weekend per month with the child-with overnight visits delayed until recommended by the child's counselor-and a holiday schedule. The court also ordered the mother to inform the child's counselor of the intent to transition the child to overnight visits with the grandparents as soon as possible and to provide the grandparents with updated documentation about the counselor's recommendations; to inform and update the grandparents about the child's medical condition; to inform the grandparents of school and sporting events so that they could attend; and to allow the grandparents to visit the child at her daycare or school. The mother appeals.

         Discussion

         In two points on appeal, the mother challenges the trial court's finding that she had denied the grandparents reasonable visitation, and the trial court's grant of visitation pursuant to section 452.402. Because we find the mother's second point dispositive, we address it first.

         In her second point, the mother claims the trial court erred in awarding the grandparents specific, defined, and enforceable visitation rights with the minor child because under section 452.402.1(4), only a grandparent who has been unreasonably denied visitation with the child for more than 90 days is entitled to court-ordered visitation. The mother contends that the undisputed evidence showed that the grandparents were never denied visitation for any period exceeding 90 days.

         We will affirm the trial 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. Blakely v. Blakely, 83 S.W.3d 537, 540 (Mo. banc 2002); Murphy v. Canon, 536 S.W.2d 30, 32 (Mo. banc 1976). Statutory interpretation is an issue of law that we review de novo. Blakely, 83 S.W.3dat540.

         Section 452.402.1 gives grandparents limited statutory rights to seek court-ordered visitation with their grandchildren. Section 452.402.1 states:

The court may grant reasonable visitation rights to the grandparents of the child and issue any necessary orders to enforce the decree. The court may grant grandparent visitation
when:
(1) The parents of the child have filed for a dissolution of their marriage. A grandparent shall have the right to intervene in any dissolution action solely on the issue of visitation rights. Grandparents shall also have the right to file a motion to modify the original decree of dissolution to ...

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