Court of Appeals of Missouri, Eastern District, First Division
from the Circuit Court of the City of St. Louis 1322-FC01612
Honorable Elizabeth B. Hogan
M. Clayton III, President Judge.
Court's own motion, the opinion filed in this case on May
30, 2017 is hereby withdrawn and a new opinion is to issue.
Appellant's motion for rehearing is denied.
Appellant's motion for application to transfer to the
Missouri Supreme Court is denied as moot.
Honorable Mary K. Hoff Judge.
Bowers ("Jessica") appeals from the judgment of the
trial court dissolving her marriage to Jason Bowers
("Jason") and granting Jason third-party sole legal
and physical custody of minor child J.B. (J.B.), pursuant to
Section 452.375.5(5). We affirm.
October 2007, when Jessica and Jason began their romantic
relationship, it is undisputed that Jessica was pregnant with
a child conceived with her former paramour, Stephen Nugent
("Stephen"). During Jessica's pregnancy, she and
Jason jointly concluded that Jason should be the father of
the child, rather than Stephen. Jessica was concerned about
Stephen's ability to take responsibility and be a parent
due to Stephen's propensity to eschew his parental
responsibilities towards his other children that he has sired
with other women. Stephen acquiesced to Jessica's request
that he remain uninvolved in the life of J.B. and voluntarily
permitted Jason to act as J.B.'s father.
attended prenatal medical appointments with Jessica and was
present in the delivery room when Jessica gave birth to a
girl, J.B., on April 28, 2008. Four days after the birth of
J.B., Jessica and Jason, now cohabitating, executed a
Missouri Affidavit Acknowledging Paternity
("Acknowledgment"), which resulted in the State of
Missouri issuing a birth certificate naming Jason as the
"father" of J.B.
two years after J.B.'s birth, Jason and Jessica wed on
April 3, 2010. Jessica, Jason, and J.B. resided together as a
family from prior to J.B.'s birth until the parties
separated in August 2012. For the entirety of J.B.'s
life, Jason fulfilled his role as her father: he taught J.B.
how to walk and ride her bike; he attended her medical
appointments; he accompanied J.B. to church services; he
danced, sang, and cooked with J.B.; and he provided for
J.B.'s financial support. At no time during the first
five years of J.B.'s life did she have any interaction or
contact with Stephen, nor did Stephen provide any financial
support for J.B.
10, 2013, Jason filed a "Petition for Dissolution of
Marriage, for Determination of Physical and Legal Custody and
for Order of Child Support" (hereinafter, "Petition
for Dissolution"). Jason alleged J.B. was "born of
the marriage, " and prayed the trial court award joint
legal and physical custody of J.B. to Jason and Jessica,
pursuant to the authority of the Missouri Uniform Parentage
Act ("MoUPA"), Section 210.817, et seq.
Jessica filed two pleadings: (1) her Answer to Jason's
Petition for Dissolution, denying the allegation that J.B.
was "born of the marriage;" and (2) her "Cross
Petition for Dissolution of Marriage, " claiming J.B. to
be born prior to the marriage, but designating Jason as the
"legal father" based upon the executed
Acknowledgement. Jessica requested, inter alia, the
trial court award her sole legal and physical custody of J.B.
with rights of visitation to Jason, under the authority of
Chapter 452, the Dissolution of Marriage Act.
January 2014, Stephen made his first appearance in J.B.'s
life, vis-à-vis the dissolution proceedings, by filing
a "Motion to Intervene and Third-party Respondent's
Petition for Determination of Father-Child Relationship and
Judgment and Order of Custody" (hereinafter,
"Motion to Intervene"). Stephen sought, inter
alia, to establish his own paternity and an award of
joint legal and physical custody of J.B., pursuant to the
MoUPA. Over Jason's objections, the trial court granted
Stephen's Motion to Intervene.
testing revealed there was a 99.9% probability Stephen was
the biological father of J.B. Consequently, Jessica filed a
motion to dismiss Jason's requests for J.B.'s custody
and support. Jason filed an "Alternative Motion for
Third-Party Custody pursuant to [Section] 452.375.5(5),
" seeking sole legal and physical custody of J.B.
Judgment of the Trial Court
a bench trial on the respective petitions and motions of
Jessica, Jason, and Stephen regarding dissolution, paternity,
custody, and visitation, and during which all interested
parties were present, the trial court entered its Findings of
Fact, Conclusions of Law, and Judgment (hereinafter,
"Judgment"). The trial court found Jessica and
Stephen credible solely in their admissions that they
repeatedly violated court orders during the pendency of this
litigation. Stephen was found unfit, unsuitable, and unable
to be the custodian of J.B. Similarly, Jessica's conduct,
in contravention of numerous court orders, demonstrated her
shortcomings as a parent. Specifically, the trial court found
Jessica was unlikely to obey court orders requiring J.B.
continue frequent and meaningful contact with Jason. During
the course of litigation, Jessica attempted, on numerous
occasions, to sever J.B.'s ties with Jason, without
regard for the detrimental consequences of her actions upon
trial court found Jessica and Jason were unable to co-parent,
thus rendering joint physical and legal custody impossible.
The trial court awarded sole legal custody and physical
custody of J.B. to Jason as a third-party custodian, pursuant
to Section 452.375, with rights of visitation to Jessica.
Stephen was not awarded any rights of custody or visitation.
However, the trial court ordered J.B.'s birth certificate
be amended to reflect Stephen, not Jason, as her father.
Jessica now appeals.
appeal, Jessica assigns two points of error. In her first
point, Jessica maintains the trial court erred in awarding
sole legal and physical custody to Jason as a third-party
custodian, because the finding of the Judgment that Jessica
was "unfit, unsuitable, or unable to be a
custodian" was against the weight of the evidence and
was not supported by substantial evidence. In her second
point, Jessica contends the trial court erred as a matter of
law in designating Jason as a third-party custodian because
Jason was already a party in the dissolution pursuant to
Section 452.375. No cross-appeals were filed by Jason or
Stephen. Fully cognizant of the extraordinarily complicated
set of circumstances in this case, we stress that throughout
this opinion we have only addressed those issues presented to
this Court on appeal. Although discussed at length in the
dissenting opinion, we are not addressing the Mo.
Acknowledgment of Paternity Statute found in Section 210.823,
the paternity presumptions in Section 210.822.2 concerning
"weightier considerations of policy and logic", nor
equitable parenting, since these issues were not raised in
bench tried case, the judgment of the trial court will be
affirmed unless there exists no substantial evidence to
support it, it is against the weight of the evidence, or it
erroneously applies or declares the law. Murphy v.
Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); see also
Richmond v. Richmond, 164 S.W.3d 176, 178 (Mo. App. E.D.
2005). However, we review de novo, any points which
turn upon the interpretation of statutes and Missouri Supreme
Court Rules and the application of the same to specific
facts. Belden v. Belden, 389 S.W.3d 717, 722 (Mo.
App. S.D. 2012); see also Muhm v. Myers, 400 S.W.3d
846, 849 (Mo. App. E.D. 2013) (de novo review
applicable to the interpretation of Missouri Supreme Court
outset, we address the procedural issues in this case. In
2004, the Supreme Court of Missouri adopted an Operating Rule
4.05.3 which states: "Dissolutions and paternity actions
shall be filed separately. A separate case number shall be
assigned for each dissolution and each paternity action filed
and shall be related in the automated case management system
for scheduling and other processing." However, Section
210.829.1 of the MoUPA grants courts the authority to join a
course of action under the MoUPA "by separate document
with an action for dissolution of marriage, annulment,
separate maintenance, support, custody, or visitation
…" While seemingly contradictory, we do not find
Operating Rule 4.05.3 and Section 210.829.1 to be in
conflict. Operating Rule states these actions should be filed
separately; however, nowhere does it limit the joining of any
related custody or visitation matters for trial.
matter before us, the dissolution, paternity action, and
Section 452.375.5 petition all regarded the custody and
visitation of J.B. and were tried together. As the trial
court found, the resolution of these matters together
promoted judicial efficiency. Although ideally separate files
should have been maintained, because this issue and the joint
nature of the trial were not raised as points in this appeal,
we need not address this further.
first point on appeal, Jessica argues the trial court erred
in finding there was substantial evidence to support that she
was unfit or unsuitable to have custody of J.B. We disagree.
the evidence and inferences therefrom in the light most
favorable to the judgment, and we disregard all contrary
evidence and inferences. Kropf v. Jones, 489 S.W.3d
830, 834 (Mo. App. E.D. 2015) (citing Potts v.
Potts, 303 S.W.3d 177, 184 (Mo. App. W.D. 2010).
"Judging 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
witnesses." Id. Consequently, we defer to the
trial court's credibility determinations. Id.
in its Judgment, the trial court found Jessica was unfit to
have sole legal and physical custody of J.B. The trial court
also determined that Stephen was the biological father of
J.B. but was unfit to have custody of J.B. Stephen did not
appeal these findings.
the course of the trial, which lasted many days, the trial
court heard and considered evidence involving all parties and
other witnesses. In addition to other findings, the trial
court found that Jessica disregarded medical needs of J.B.
and repeatedly failed to follow trial court orders while the
case was pending. The trial court also considered the lengthy
testimony of therapist, Dr. Anne Duncan-Hively about the
interactions of all of the parties especially regarding J.B.
In her testimony, Dr. Duncan-Hively stressed the strong bond
between Jason and J.B. She suggested that Jessica had
deliberately at times tried to destroy the strong bond
between Jason and J.B. by denying them time together without
any recognition of the possible serious significant emotional
harm to J.B. Witnesses at trial and the record of the
numerous pleadings and hearings held in this matter support
this finding. Moreover, the trial court reviewed Section
452.375.2 which lists the eight factors to be considered in
making a determination of custody and visitation. It found
that it did not have to make a detailed finding on each
factor pursuant to Lalumondiere v. Lalumondiere, 293
S.W.3d 110, 113 (Mo. App. E.D. 2009). Notably, in its
Judgment, the trial court especially focused on factor 4 of
Section 452.375.2 in making its findings: "Which parent
is more likely to allow the child frequent, continuing, and
meaningful contact with the other parent." The trial
court found, and there was substantial evidence in the record
to support, that Jessica tried to keep J.B. from Jason, in an
attempt to alienate the child from Jason, and in doing so,
consciously disregarded the best interests of J.B.
on the foregoing as well as the lengthy testimony of Dr. Anne
Duncan-Hively, and other evidence, the trial court correctly
found that Jessica was unfit to have custody of J.B. After a
thorough review of the record, we find there was substantial
evidence to support the trial court's findings of
Jessica's unfitness and this finding was not against the
weight of the evidence. Point I is denied.
Point II, Jessica argues that the trial court erred in
finding that Jason was a third-party custodian under Section
452.375.5, because Jason was already a party in the
dissolution proceeding. Given the conclusions of the trial
court that both biological parents were unfit, the trial
court correctly considered Jason's petition for
third-party custody of J.B.
When the court finds that each parent is unfit, unsuitable,
or unable to be a custodian, or the welfare of the child
requires and it is in the best interests of the child, then
custody, temporary custody or visitation may be awarded to
any other person or persons deemed by the court to be
suitable and able to provide an adequate and stable
environment for the child. Before the court awards custody,
temporary custody, or visitation to a third-party under this
subdivision, the court shall make that person a party to the
we find that it is significant in this joined matter, that
Jason was a party to the dissolution, filed a petition for
third-party custody under Section 452.375.5(5), and all
matters including paternity determinations were heard in the
same proceeding. As a result, we conclude there was no error
in finding Jason to be a third-party custodian because all
actions related to the determination of custody or visitation
of J.B. Crucially, all interested parties were given a full
and fair opportunity to present their evidence and be heard
by the trial court on all issues.
Jason did not appeal the Judgment of the trial court and
therefore we are only reviewing those issues specifically
raised in Jessica's two points on appeal. Additionally,
we note that Jessica does not challenge the finding that
Jason was suitable for custody of J.B. but rather attacks the
procedure for naming Jason as third-party custodian. Jessica
has offered no evidence that firmly convinces this Court that
the welfare of J.B. requires a different custody and
visitation schedule than that ordered by the trial court. As
such, the evidence supported the trial court's
determination that awarding sole custody to Jason was in the
best interests of J.B. In affirming the trial court's
Judgment with respect to this point, we rely on longstanding
precedent and presume that the trial court reviewed all the
evidence and awarded custody in the manner it believed would
be in the best interests of J.B. "This presumption is
based upon the trial court's better position to judge not
only the credibility of the witnesses and parties directly
but also their sincerity, character, and other trial
intangibles which might not be completely revealed by the
record." Hartig v. Hartig, 738 S.W.2d 160, 161
(Mo. App. E.D. 1987). Point II is denied.
Judgment is affirmed.
M. Clayton III, Presiding Judge, concurs.
P. Page, Judge, dissents and transfers to Missouri Supreme
Court in separate opinion.
P. Page, Judge.
strongly and respectfully, in equal measure, dissent. Jason
is J.B.'s "natural father." This is not a case
requiring an award of third-party custody.
Custody is Erroneous
discussed in great detail, infra, I disagree with
the majority opinion that Stephen is J.B.'s natural
father. I begin my dissent assuming, arguendo, the
majority opinion is correct. However, under the facts of this
case, even if I could agree that Stephen is J.B.'s
natural father, third-party custody is wholly inappropriate
for the following reasons.
the procedural legal authority governing an award of
third-party custody is confusing. Compare In re
T.Q.L., 386 S.W.3d 135 (Mo. banc 2012) (putative, but
non-biological, father was permitted to seek third-party
custody because mother was deemed "unfit" and
biological father was unknown) with D.S.K. ex rel. J.J.K.
v. D.L.T., 428 S.W.3d 655, 657-60 (Mo. App. W.D. 2013)
(prohibiting the husband from intervening in the paternity
action of the children born during his marriage, but leaving
open the possibility that the husband could file an
independent third-party cause of action). However, the law is
clear that the custody of J.B. cannot be decided within the
dissolution of Jessica and Jason if Stephen is the natural
father. D.S.K. ex rel. J.J.K., 428 S.W.3d at 659
("[T]he court does not have the authority in a
dissolution proceeding to determine the custody of children
not born of the marriage or adopted by the parties.").
Unfortunately, the legal quagmire presented to the trial
court, infra, resulted in a judgment that appears to
adjudicate the custody of J.B. within the dissolution of
Jason and Jessica. Warlop v. Warlop, 254 S.W.3d 262,
263 (Mo. App. W.D. 2008) ("Where there are no children
born of the marriage or adopted by the parents and no
allegations of the natural parent being unfit, the trial
court in a divorce proceeding does not have jurisdiction to
determine the custody of one party's child.").
the only possibilities for the adjudication of
Jason's petition (or motion) for third-party custody,
herein, were within Stephen's paternity action or an
independent cause of action. I am skeptical, however, whether
the trial court had the authority to award Jason third-party
custody within Stephen's paternity as the majority
opinion implies or whether Jason has standing to file an
independent third-party custody action. See,
e.g., D.S.K. ex rel. J.J.K., 428 S.W.3d at
659-60 ("[A]lthough Husband failed to establish that he
had an interest in the paternity case entitling him
to intervene as a matter of right, nothing prevents him from
asserting his third-party custody claim as an independent
cause of action.") (emphasis added); see also
Chipman v. Counts, 104 S.W.3d 441, 446-48 (Mo. App. S.D.
2003) (grandmother lacked standing to seek custody of
grandchild under Chapter 452 because the parents of the
grandchild were never married).
despite the confusion surrounding the proper procedural
adjudication of third-party custody, there is no confusion
regarding the substantive law governing the adjudication of
third-party custody: in Missouri, natural parents are not to
be denied custody of their minor child, unless the
third-party seeking custody first meets its burden of showing
that each parent is unfit, unsuitable, or unable to
be a custodian or the welfare of the child requires,
and it is in the best interest of the child.
Jones v. Jones, 10 S.W.3d 528, 535 (Mo. App. W.D.
1999); see also Section
452.375.5(5)(a). If the majority opinion is correct and
Stephen is the "natural father, " then, in this
case, the law mandates that Jason be denied third-party
the sole focus of the trial court's determination of
Jessica's alleged unfitness is the acute acrimony between
her and her now former husband, Jason. In fact, absent
Jessica's inability to co-parent, the trial court's
judgment lacks a single finding Jessica is an unfit
custodian. Flathers v. Flathers, 948 S.W.2d
463, 466 (Mo. App. W.D. 1997) ("We read the unambiguous
language of this statute as creating a rebuttable presumption
that parents are fit, suitable, and able custodians of their
children and that their welfare is best served by awarding
their custody to their parents.").
after labeling Jessica as "unfit, " the trial court
proceeded to award Jessica 5 out of 14 nights of physical
custody. The majority appears to concede the trial
court's contradictory findings and affirms the award of
third-party custody to Jason upon the "welfare of the
child, " pursuant to Section 452.375.5(5). However, the
trial court's findings do not refer to J.B.'s
"welfare, " but instead focus solely upon
Jessica's inability to co-parent with Jason.
those few cases where our trials courts have divested a
biological parent of custodial rights premised upon the
"welfare of a child, " the facts are much more
egregious and extreme than here. Further, most third-party
custody cases award custody to a biological relative, as
opposed to a former step-parent. Most crucially, awards of
third-party custody are not and should not be premised upon
the acrimony between the natural parent and former
instance, in Giesler v. Giesler, 800 S.W.2d 59 (Mo.
App. E.D. 1990), this court affirmed third-party custodial
rights to the paternal aunt and uncle of the children,
because the father was absent and the mother "was unable
to cope with the demands of parenthood[.]"
Giesler, 800 S.W.2d at 60. In Giesler, the
mother neglected to transport her children to and from
school, lacked any interest in her children's educational
progress, disregarded timely medical immunizations, and did
not obtain regular and suitable childcare for her children.
Id. at 60-61. Moreover, the mother's new
paramour (with whom she resided) "used extremely vile
language" in front of the children, "engaged in
physically abusive conduct toward" the mother,
"incited and fomented discord regarding custody matters
between and among the parties[, ]" and used the children
to "torment and provoke the children's aunt and
uncle." Id. at 61. This court affirmed the
trial court's determination that "the welfare of the
minor children manifestly demands, and it is in the best
interests of all the children that their primary custody
should go to" the aunt and uncle. Id. at 62.
in K.S.H. ex rel. M.S.H. v. C.K., 355 S.W.3d 515
(Mo. App. S.D. 2011), the Missouri Court of Appeals, Southern
District, affirmed the trial court's determination that
the welfare of the child required the grandmother be awarded
third-party custody, because "there was evidence of
physical abuse, emotional abuse, a chaotic home environment,
neglect of health needs, the lack of a healthy parent-child
relationship, emotional manipulation, and consistent poor
judgment by [the mother]." K.S.H. ex rel.
M.S.H., 355 S.W.3d at 521.
in T.W. ex rel. R.W. v. T.H., 393 S.W.3d 144 (Mo.
App. E.D. 2013), this court reversed the trial court's
award of third-party visitation to the maternal grandmother,
because the grandmother improperly intervened in the
father's paternity action, and the award impermissibly
impinged upon the mother's constitutional rights.
T.W. ex rel. R.W., 393 S.W.3d at 146-47. In T.W.
ex rel. R.W., this court found that despite the
grandmother's significant assistance and active
participation in the first decade of the child's life,
the grandmother "failed to meet the initial procedural
requirements for intervention" in the father's
paternity action. Id. at 152. Moreover, even if the
grandmother had properly intervened in the paternity action
and properly pled a claim for third-party custody, insomuch
as the trial court found the mother "was a fit, able,
and willing parent, " the trial court lacked the