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Bowers v. Bowers

Court of Appeals of Missouri, Eastern District, First Division

June 30, 2017

JASON BOWERS, Respondent,
v.
JESSICA BOWERS, Appellant.

         Appeal from the Circuit Court of the City of St. Louis 1322-FC01612 Honorable Elizabeth B. Hogan

         ORDER

          Robert M. Clayton III, President Judge.

         On the Court's own motion, the opinion filed in this case on May 30, 2017 is hereby withdrawn and a new opinion is to issue.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.

         SO ORDERED.

          OPINION

          Honorable Mary K. Hoff Judge.

         Jessica 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).[1] We affirm.

         BACKGROUND

         I. Factual Background

         In 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").[2] 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.

         Jason 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.[3]

         Approximately 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.

         II. Procedural Background

          On May 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.

         Thereafter, 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.

         In 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.

         Genetic 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.

         III. Judgment of the Trial Court

         Following 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 her child.

         The 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.

         DISCUSSION

         On 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 Jessica's appeal.

         STANDARD OF REVIEW

         In a 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 Rules).

         PROCEDURAL ISSUES

         At the 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.

         In the 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.

         POINT I

         In her 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.

         We view 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.

         Here, 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.

         During 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.

          Based 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

         In 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.[4]

         Section 452.375.5(a) states:

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 action.

         Here, 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.[5]

         Finally, 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.

         CONCLUSION

         The Judgment is affirmed.

          Robert M. Clayton III, Presiding Judge, concurs.

          Lisa P. Page, Judge, dissents and transfers to Missouri Supreme Court in separate opinion.

         DISSENT

          Lisa P. Page, Judge.

         I must 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.

         Third-Party Custody is Erroneous

         As 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.

         Admittedly, 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.").

         Accordingly, 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).

         Nevertheless, 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).[1] 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 custodial rights.

         Here, 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.[2] 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.").

         Paradoxically, 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).[3] 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.

         In 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 step-parent.

         For 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.

         Similarly, 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.

         Conversely, 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 ...


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