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Goodsell v. Noland

Court of Appeals of Missouri, Western District, Second Division

February 27, 2018


         Appeal from the Circuit Court of Jackson County, Missouri The Honorable Susan Margene Burnett, Judge

          Before James Edward Welsh, Presiding Judge, Alok Ahuja, Judge, Anthony Rex Gabbert, Judge.

          Anthony Rex Gabbert, Judge.

         Shane Noland (Father) appeals the circuit court's Judgment and Order of Paternity, Custody and Child Support. He asserts four points on appeal. First, he contends that the circuit court misapplied the law in awarding him only supervised parenting time. Second, he contends that the circuit court's Parenting Plan is deficient and provides him inadequate parenting time. Third, he argues that the court abused its discretion in striking his pleadings and allowing him to present no evidence. Fourth, he contends that the court erred in its award of child support. We affirm in part and reverse in part.

         Procedural and Factual Information

         On November 27, 2015, twin boys were born to Meagan Goodsell (Mother). Mother and Father were unmarried. Mother had two children from a previous relationship. Father had one child from a previous relationship, and another child born to that same relationship after the birth of the twins. Mother informed Father of the pregnancy as soon as she learned of it. Father provided no support to Mother during the pendency of her pregnancy, and no support to the children after their birth. The twins were nearly eleven months old at the time of trial. Although Father had been given the opportunity to visit the twins, Father had never met the children at the time of trial.

         On February 18, 2016, Mother filed a "Petition for the Declaration of the Existence or Nonexistence of the Father Child Relationship Under the Missouri Uniform Parentage Act and Order of Support." The State of Missouri, Family Support Division, was named a third party respondent. On March 18, 2016, both the Family Support Division and Father filed answers to the petition. Father's answer denied paternity. DNA testing was ordered by the court and completed. Father stipulated to paternity at trial on October 14, 2016. On November 21, 2016, the court entered its Judgment of Paternity. Father filed a motion for new trial on December 20, 2016. The court denied that motion on January 13, 2017. The court also entered a Judgment Nunc Pro Tunc on January 13, 2017.[1] On January 23, 2017, Father filed an amended motion for new trial which was denied on March 6, 2017. Father appeals the court's Judgment of Paternity.

         Additional procedural and factual information will be discussed below as applicable to Father's points on appeal.

         Standard of Review

         Our standard of review is set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Schollmeyer v. Schollmeyer, 393 S.W.3d 120, 122 (Mo. App. 2013). We will affirm the circuit court's judgment unless it is unsupported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Id. at 122-123. We view the evidence and all reasonable inferences in the light most favorable to the court's judgment. Id. at 23. We assume that the trial court was motivated by the child's best interests in custody decisions, and we defer to its credibility determinations. O'Connell v. Horton, 313 S.W.3d 702, 705 (Mo. App. 2010). The party challenging the judgment has the burden of proving error. Beckham v. Beckham, 41 S.W.3d 908, 911 (Mo. App. 2001). "We review questions of law de novo." In Interest of J.L.H., 488 S.W.3d 689, 693 (Mo. App. 2016).

         Point I - Supervised Visitation

         In Father's first point on appeal, he contends that the court misapplied Section 452.400[2] in ordering supervised visitation because there is no evidence that he presents a danger to the children's physical health or emotional development. He contends that the court's reasoning for ordering supervised visitation -- that the children are of "tender years" and because Father had never met the children -- was insufficient under Missouri law to justify supervised visitation. He argues that the court could not "restrict" his visitation without evidence of past physical or emotional abuse or that his visitation would adversely impact the children. We find no error.

         Our Missouri Supreme Court made clear in Turley v. Turley, 5 S.W.3d 162, 165 (Mo. banc 1999), that "[e]very visitation agreement confines and limits the visitation of each parent within certain bounds, " and that the requirements of Section 452.400.2 discussing the "restriction" of visitation is limited to instances where the court is modifying an existing order.[3] Here, we have an initial award of sole legal and sole physical custody to Mother, with a grant of visitation to Father. Consequently, the trial court's determination regarding Father's visitation was governed by Section 452.400.1(1) which states: "A parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger the child's physical health or impair his or her emotional development." Courtney v. Roggy, 302 S.W.3d 141, 151 (Mo. App. 2009) (abrogated on other grounds). Father was awarded visitation. Had he been awarded no visitation, a finding of danger to the physical health or emotional development of the children would have been required under Section 452.400.1(1). As Father was awarded visitation, the question here is whether the court's visitation award was reasonable. The court ordered the following:

Father's[4] Parenting Time: Father shall have supervised parenting time with the minor children every other Sunday from 4:30 PM to 7:30 PM, or other times that may be agreed upon, in writing, by the parties. Mother shall be the supervisor, unless Mother designates a third party to supervise. If Father refuses supervised visitation with Mother or Mother's designated third party, the Guardianship Program at Hope House will supervise all Father's parenting time. If the Guardianship Program at Hope House is utilized, Father shall be responsible for contacting Hope House and arranging for parenting time during the periods ordered by this court. If Father fails to contact and arrange for Hope House parenting time, and if Father fails to provide Mother with fourteen (14) day notice of the scheduled parenting time at the Guardianship Program at Hope House, Father shall forfeit that particular parenting time. Under no circumstances shall Mother be required to contact Hope House or otherwise arrange Hope House parenting time on behalf of Father.
Because Father has never had contact nor requested contact with the children in any meaningful manner, Father shall provide Mother with at least 72 hours' notice if he intends to exercise his supervised visitation. If Father fails to notify Mother at least 72 hours prior to his proposed supervised visitation, or if Father fails to appear for scheduled parenting time, Father shall forfeit his parenting time for that designated week. If Father chooses to exercise his supervised parenting time with the children, Mother, or a third party designated by Mother shall be responsible for picking up and transporting the minor children at the beginning and end of each of Father's parenting sessions. At no time shall the children be removed from the court's jurisdiction during Father's parenting time. Father shall keep Mother informed, in writing, of his current residence and place of work at all times.
Therapeutic Parenting Time: If Father chooses to exercise some sort of therapeutic parenting time, the therapist shall be agreed upon, in writing, by both parties before any therapeutic parenting time shall be scheduled. Any costs or fees associated with therapeutic parenting time shall be born solely by Father, unless otherwise agreed to by the parties.
Transportation of the Children: At no time shall the children be transported without proper child seat protection devices until they are old enough pursuant to Missouri law to travel without these devices. If a party, or third party designate, appears for any exchange without proper child seat safety devices installed in the vehicle to be used for transport of the children, the exchange will not occur. At no time shall the children be transported by any person who does not possess a valid driver's license.

         The court awarded Mother all holidays, as well as the children's birthdays. Father was awarded supervised parenting time on Father's Day. The court ordered that Father may have additional parenting time on Father's birthday and during the summer if he has complied with the provisions set forth in the parenting plan regarding supervised visitation, and the parties agreed in writing as to the conditions of the summer parenting time.

         Father contends on appeal that, under the facts of his case, the law does not allow for an order of supervised visitation. He argues that, because the legislature commands that he is entitled to substantial, meaningful, and continuing contact with his children, the children's "tender years" and Father's prior lack of contact with the children was insufficient to support an order of supervised visitation. We disagree.

         First, Father erroneously argues that the court relied on a "tender years" presumption in determining that Father's visitation be supervised. Father references a statement made by the court as to "the tender age of these children" in an oral declaration of judgment; nowhere does this language appear in the court's written Judgment. In civil cases, "[c]ourts typically disregard a trial court's oral statements made in a ruling on an issue because such statements are not part of the trial court's order or judgment." G.K.S. v. Staggs, 452 S.W.3d 244, 251 n.5 (Mo. App. 2014) (internal quotation marks and citation omitted). Regardless, the court made no findings, even in its oral pronouncement, that solely because of Mother's status as a female and a mother, and/or the young age of the children, custody of the children should be awarded to Mother;[5] rather, the court stated that, because the children were young and Father had never seen the children, supervised visitation with Father was in the best interest of the children at this time.

         Second, Father's lack of contact with his eleven-month-old children can and does justify the court's determination that supervised visitation is in the children's best interest. Although the twins were approximately eleven months old at trial, Father had never seen the children. The twins had lived with Mother since their birth and she had been their sole custodian. Although Father was aware of the twins' birth, he chose to provide no support for their care. Mother testified that, after the children were born, she contacted Father and offered for him to see the children. Father's response to these offers was to say nothing or block Mother's attempts to contact him. Father's only request to see the children was on the eve of trial; he requested to meet them at 5:30 p.m. at a convenience store. Approximately three months prior to trial, Father was ticketed for failing to properly restrain his five-year-old child in a motor vehicle, and for driving without a valid driver's license. Father admitted to having no valid driver's license at the time of trial.

         Father quotes Missouri legislative policy that "frequent, continuing and meaningful contact with both parents"[6] is preferred and argues that the court, therefore, could not order supervised visitation solely based on Father's lack of contact with the children. Yet, Father ignores that he abandoned his children for the first eleven months of their lives. Even if he were to now deny Mother's claims that he was aware of her pregnancy and the birth of the twins, the paternity action naming him as father was filed a full eight months before trial. For the eight months following legal notice of his alleged paternity, he failed to visit his children and failed to support them. While now touting legislative policy in asserting his rights as a Father in this paternity action, he ignores that in other contexts, specifically Chapter 211 termination of parental rights proceedings and Chapter 453 adoption proceedings, our legislature deems abandonment of a child justification for severing all parental rights. See §§ 211.447.2(2)b; 211.447.5(1); 453.040(7). And, we note that our legislature does make an age distinction in cases of abandonment. Abandonment need only occur for sixty days for a child under one year of age -- six months for a child older than one year - for the abandoning parent's consent to an adoption of the child to be unnecessary.[7]

         We find the court's visitation award reasonable. It was well within the court's discretion to have determined that Father's complete lack of contact with his eleven-month-old children prior to the Judgment of Paternity warranted supervised visitation until such time as Father's demonstration of a commitment to the children through consistent, appropriate visitation warrants a determination that unsupervised visitation is in the children's best interests.[8]

         The circuit court did not misapply Section 452.400 in ordering supervised visitation between Father and his children. Father's first point on appeal is denied.

         Point II - Parenting Plan

         In Father's second point on appeal, he contends that the court's Parenting Plan is deficient and provides him inadequate parenting time because it makes Mother the sole decision-maker regarding what contact, if any, Father is to have with his ...

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