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Abernathy v. Collins

Court of Appeals of Missouri, Western District, Second Division

July 18, 2017



          Before: Edward R. Ardini, Jr., Presiding Judge, Karen King Mitchell, Judge and Anthony Rex Gabbert, Judge



         Sunny P. Collins ("Collins") appeals from the judgment entered in the Circuit Court of Jackson County granting joint physical and joint legal custody of the parties' daughter. Because the trial court failed to make statutorily required findings, we reverse and remand to the trial court.

         Factual and Procedural Background

         Collins and Mark A. Abernathy ("Abernathy") began a relationship in 2005 and, in 2009, Collins gave birth to a child. The couple separated in 2012, with Collins maintaining custody of the child. Several years after their separation, an action was brought to determine the paternity of the child. Through this process, Abernathy was declared to be the child's father and ordered to pay child support through the State of Missouri's Family Support Center. In January of 2016, Abernathy commenced a new action through the filing of a pro se Petition for Declaration of Paternity, Custody and/or Support. This petition did not specify the type of relief he sought regarding custody of the child. An amended petition was subsequently filed on his behalf requesting joint legal and joint physical custody of the child with Abernathy's address being designated for educational and mailing purposes. Collins filed a counter petition seeking sole legal and sole physical custody of the child and arguing that Abernathy be awarded no visitation rights. A hearing was held on the matter at which both parties presented evidence. The trial court issued its Judgment and Order of Paternity, Child Custody and Visitation granting joint legal and joint physical custody with Collins's address designated for educational and mailing purposes. While the trial court found evidence of domestic violence in Abernathy's relationship with Collins, it nevertheless concluded that Abernathy "should be in the child's life" and awarded parenting time under a structured schedule that included a supervised "breaking in period." Collins filed a Motion to Amend Judgment and Suggestions in Support that was deemed overruled by operation of Rule 78.06.[1] Collins now appeals.


         Collins raises five points on appeal. In her first point, she alleges that the trial court erred in denying her request for the appointment of a guardian ad litem, which, she argues, was statutorily required based on allegations that Abernathy had abused the child. Her second point contends that there was not substantial evidence to support the judgment of joint legal custody, in that the evidence did not demonstrate that Collins and Abernathy share a commonality of beliefs concerning parental decisions or the capacity to function as a parental unit. Her third, fourth, and fifth points assert errors in the judgment regarding a lack of certain statutorily mandated findings. We will consider these points in the order most conducive to review.

         I. Appointment of Guardian ad Litem

         Section 452.423.2 states that "[t]he court shall appoint a guardian ad litem in any proceeding in which child abuse or neglect is alleged."[2] "The language of section 452.423.2 is plain and unambiguous." Soehlke v. Soehlke, 398 S.W.3d 10, 15 (Mo. banc 2013). It mandates the appointment of a guardian "when allegations of child abuse or neglect are raised in one or both parties' pleadings." Id. Thus, section 452.432.2 places upon trial courts a duty to "assess the parties' allegations [of abuse] in the context of their case and in the light of the best interest of the child" and determine whether abuse has been sufficiently alleged to warrant the appointment of a guardian ad litem. Id. at 18. However, the statute provides no definition for the word "abuse" as used in section 452.423.2. Reno v. Reno, 461 S.W.3d 860, 863 (Mo. App. W.D. 2015). Instead, the section leaves "the final construction of [the word] to the experience and judgment of Missouri's trial courts." Id. at 864 (quoting Soehlke, 398 S.W.3d at 17). The Missouri Supreme Court has stated that our "courts need no further guidance to be able to distinguish extraordinary allegations that involve real acts of child abuse or neglect from ordinary allegations that-no matter how vitriolic or ad hominem they may be-do not indicate that the child has suffered such harm." Soehlke, 398 S.W.3d at 18; compare Von Holten v. Estes, 512 S.W.3d 759 (Mo. App. W.D. 2017) (Father's pleading which "alleged, among other things, that Mother 'fails to maintain an appropriate and healthy environment for the minor child, ' 'inappropriately disciplines the minor child, ' 'fails to take adequate steps to assure the child has appropriate medical and dental care, ' is 'subject to emotional mood swings and outbursts that do not provide a healthy environment for the minor child to reside in, ' 'does not provide sufficient academic assistance to the minor child, ' and 'provides poor hygiene habits for the minor child'" was found too vague in nature and lacking in actual harm to the child to sufficiently allege abuse.), and Hazelbaker v. Hazelbaker, 475 S.W.3d 143, 148 (Mo. App. E.D. 2014) (Mother's pleadings that Father engaged in parental alienation, told the child that Mother was trying to poison her, coerced the child into lying and lied about Mother to the child, kidnapped the child by taking her out of the country without Mother's consent, and told Mother's family and friends that Mother sexually molested the child did not mandate appointment of a guardian ad litem.), with In Interest of T.G., 965 S.W.2d 326 (Mo. App. W.D. 1998) (Court did not err in finding Father had abused child after he shot and killed his wife with a shotgun while she was holding the child resulting in the child becoming injured.). We review a trial court's conclusion as to whether there were sufficient allegations of abuse to mandate the appointment of a guardian ad litem for an abuse of discretion. Estes, 512 S.W.3d at 769.

         The record in this case reveals a strained and dysfunctional relationship between Collins and Abernathy. Collins had accused Abernathy of domestic violence in the past and had sought and received protective orders against him relating to those incidents. Abernathy made no allegation of child abuse or neglect in his amended petition, and Collins's counter petition stated that "[Abernathy] has engaged in a pattern of domestic violence against [her]" but did not assert any claim of abuse against the child. It was not until later in the case, when Collins filed her Motion for Appointment of Guardian ad Litem, that she attempted to characterize Abernathy's actions as abuse directed at the child as opposed to domestic violence directed against her. Collins alleged that Abernathy had engaged in child abuse by being physically violent toward her in the presence of the child as well as recounting an incident where Abernathy had come to Collins's home in the middle of the night and smashed windows resulting in both she and the child receiving slight injuries.[3]

         Abernathy's conduct is deeply troubling and the trial court properly found that there was substantial evidence to support a finding that domestic violence against Collins had occurred. However, the specific issue before us is whether the disturbing actions alleged against Abernathy also constituted child abuse of the nature that would mandate the appointment of a guardian ad litem. The purpose of section 452.423.2 is "to protect children who may have been abused or neglected, " not to benefit the parties themselves. Rombach v. Rombach, 867 S.W.2d 500, 502 (Mo. banc 1993) (emphasis added). Thus, section 452.423 may not be used as a mechanism to generate additional support for one side or to cast shade, no matter how well deserved, on the other. If a guardian ad litem is to be appointed under 452.423, it must be because of allegations that the child has been abused.

         The sole major incident Collins relies on to demonstrate child abuse, the breaking of windows at her house, occurred in the middle of the night, and there is no support in the record before us to establish Abernathy was able to see any of the occupants of the house, let alone that he was targeting the child. Further, this incident transpired only a month after Collins informed the Kansas City Housing Authority that Abernathy had been lying when he claimed the child was living with him, causing him to lose part of his housing subsidy, and Collins's initial pro se answer specifically claimed that Abernathy's actions were him "lashing out" as a result.[4] The remaining incidents Collins's complains of more clearly involve actions by Abernathy that were directed against Collins herself and likewise show no intent on the part of ...

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