Court of Appeals of Missouri, Southern District, Second Division
FROM THE CIRCUIT COURT OF MCDONALD COUNTY Honorable John
LePage, Associate Circuit Judge.
JEFFREY W. BATES, J.
Clark (Mother) appeals from an amended judgment that
dissolved her marriage to James Clark (Father), awarded
Father sole legal and physical custody of the parties'
three children, and purported to grant Mother restricted
visitation. According to Mother, the manner in which her
visitation schedule was to be determined "constitutes an
impermissible delegation of judicial authority to someone
other than a judge[.]" We agree. The amended judgment is
reversed, and the cause is remanded for further proceedings
consistent with this opinion.
of the narrow issue presented by this appeal, the relevant
facts can be succinctly summarized. In January 2016, Father
filed a petition for dissolution of the parties'
marriage. The parties' three children were then ages 10,
15 and 18. A guardian ad litem (GAL) was appointed to
represent the children. Temporary custody was placed with
2016, the court entered an order concerning Mother's
visitation. The court found that Mother "would benefit
from therapeutic visitation with the children at this
time." The court ordered that "the local rule
visitation for mother will be suspended pending further order
of this Court, and mother shall participate in therapeutic
visitation with the children[.]" In August 2016, the GAL
filed a motion to terminate the therapeutic visits. In a
September docket entry, the court suspended therapeutic
visitation until further evidence could be heard on the
March 2017, trial on the petition for dissolution was held.
The court heard testimony from several witnesses, including:
(1) the family therapist conducting the initial therapeutic
visitation; (2) the children's therapist; (3)
Mother's therapist; (4) Mother; (5) Father; and (6) the
parties' three children.
December 2017, the court entered an amended judgment of
dissolution. In awarding Father sole legal and physical
custody of the children, the court made a finding that
"frequent, continuing and meaningful contact with the
mother is not in the children's best
interest[.]" The judgment incorporated a parenting plan
(Parenting Plan) "restricting" Mother's
visitation to therapeutic visits. Such visits were to be
determined by: (1) Mother's therapist; (2) the
children's therapist; and (3) a "therapeutic
visitation therapist" agreed to by the parties. The
visitation provision in the Parenting Plan stated:
The best interests of the children will be served by
restricting mother's visitation time in the following
The mother shall be encouraged to engage in therapy with her
own individual therapist … and when her therapist
reaches a point in therapy that her therapist believes the
mother can engage in a healthy therapeutic relationship with
the children, mother's therapist shall reach out
to the children's therapist … and upon
the children's therapist recommendation
therapeutic visits may be coordinated with a therapist agreed
to by the parties, hereinafter known as the
"therapeutic visitation therapist". The
mother shall be consulted on the selection of the therapeutic
visitation therapist, however, the decision of which
therapist to utilize will be decided by the therapist of the
children. If either party disagrees, they may seek the
Court's recommendation by simple request of the Court for
When the therapeutic visitation therapist believes
that the therapy is effective and it is time to look at
supervised visitation (without a therapist) or unsupervised
visitation; then the therapeutic visitation therapist shall
reach out to the children's current therapist and upon
agreement and recommendation of the children's
therapist, supervised visits or limited unsupervised
visits may be allowed.
The recommendation by the [c]hildren's
[t]herapist (not the therapeutic visitation therapist)
for unlimited unsupervised visits, will be
prima facie evidence of a change in circumstances warranting
a change in the visitation schedule, but not necessarily a
substantial change in circumstances warranting a change in
the custody of the children.
(Underlining in original and other emphasis added.) This
review of this court-tried case is governed by Rule 84.13(d)
and Murphy v. Carron, 536 S.W.2d 30, 32
(Mo. banc 1976). In Re Bell, 481 S.W.3d 855, 858-59
(Mo. App. 2016). "The judgment will be affirmed 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." Id. The issue presented by
this appeal involves a delegation of statutory authority,
which we review de novo. See Barker v.
Barker, 98 S.W.3d 532, 534 (Mo. banc 2003).
contends that the trial court erred by granting Mother
therapeutic visitation that "could only take place upon
recommendations of Mother's therapist and the
children's therapist and requiring both therapists to
coordinate with a third therapist who would conduct the
therapeutic visitation." According to Mother, the
judgment "constitutes an impermissible ...