Court of Appeals of Missouri, Southern District, First Division
J.C.M., an individual, and J.C.M., Next Friend for W.C.M. and O.H.M., Plaintiff-Appellant/Respondent,
J.K.M., a/k/a J.K.E., D.A.N. and D.E.N., Defendants-Respondents/Cross-Appellants.
FROM THE CIRCUIT COURT OF IRON COUNTY Honorable Randall Head
adult involved in this consolidated appeal challenges the
judgment that awarded money damages to W.C.M.
("WM") and O.H.M. ("OM") ("the
children"). In a single point, J.C.M.
("Father"), claims the trial court erred in failing
to grant him a new trial based upon his claim that the
defendants' closing argument was
"improper."J.K.M. ("Mother"), along with her
parents, D.A.N. and D.E.N. ("Grandparents"), cross-
appeal the portion of the judgment entered in favor of
Plaintiffs on their claims for interference with custodial
rights and false imprisonment.
points, Defendants claim the trial court erred in: (1)
instructing the jury on the false imprisonment claim; (2)
denying their motions for directed verdict or a new trial on
the false imprisonment claim because Plaintiffs did not make
a submissible case; and (3) abusing its discretion in ruling
on four separate evidentiary matters.
Mother's sole additional point claims instructional error
related to her refusal to answer questions at her deposition
and subsequent failure to testify at trial based upon her
assertion of Fifth-Amendment privilege. Finding no reversible
error in any of these points, we affirm.
and Father were married in 2000. The sad series of events
that ultimately led to these appeals began in January 2006.
At that time, Mother, Father, and the children were living
together in apparent domestic harmony in Salem, Missouri.
Sometime that month, WM, then four years' old, said that
Father had touched his "root," the term WM used for
his genitalia. Believing this statement to be an indication
that Father had sexually abused WM, Mother took the children,
moved out of the family home, and began residing in a trailer
located on Grandparents' property in a remote part of
Dent County, Missouri.
Mother filed a petition for a child order of protection
against him, Father filed for divorce in May 2006. After
Mother and Father separated in 2006, and before the
dissolution trial in January 2008, various hotline calls were
made against Father as a result of WM's accusations, and
WM attended counseling. During this time period, WM made
statements to several third-party witnesses, including
professionals, nonprofessionals, and family members, about
the alleged abuse. Due to the accusations against him, Father
had only supervised visits with the children. The
Children's Division investigated WM's accusations of
sexual abuse and ultimately found them to be unsubstantiated.
No criminal charges for sexual abuse were ever filed against
the dissolution judgment awarded custody of the children to
Father, Mother abducted the children and fled the
state. Father would not see the children again
for more than three years. When the children were finally
returned to Missouri and placed back into Father's care
and custody in August 2012, Father and the children sued
Mother and Grandparents for, respectively, intentional
interference with custody and false
dissolution case took three days to try, and the resulting
JUDGMENT, ORDER, AND DECREE OF DISSOLUTION OF
MARRIAGE (the dissolution judgment") was extremely
critical of Mother. For example, it contained the following
• Mother had made no effort to seek employment;
• Mother had accused Father of having an affair with a
co-worker during the marriage, but the court found no
credible evidence of that - rather, it found that Mother had
embarrassed and disrupted Father at his place of work;
• Mother had accused Father of having a pornography
addiction, but the court was not convinced that Father's
actions in that regard were abnormal;
• Mother's allegations of sexual abuse
against Father were investigated by the Missouri
Children's Division and were unsubstantiated;
• Mother repeatedly questioned WM about the
sexual abuse, and that repeated questioning rendered any
effort to obtain a reliable report nearly
• Mother had exerted pressure on the children
not to attend visits with Father;
• Mother has an inflexible belief system that
"prevents her from seeing the evidence of her mistake
before her own eyes";
• There is no credible evidence that Father
committed any acts of abuse;
• Mother and her family have a general attitude
that they are right and therefore justified in violating
• Mother blames others for events that put her
in a bad light;
• Mother has called the professionals involved
in the case liars, and she exaggerates details or makes up
stories in order to explain her position;
• Mother fabricates reasons to deny Father's family
members contact with the children; and
• Because of her inflexible belief system, Mother will
not comply with future court orders.
dissolution judgment awarded Father legal and physical
custody of the children, subject to periods of visitation
with Mother. Because Mother had the children at the time the
dissolution judgment was entered, the court ordered her to
deliver them to Father in ten days -- May 31, 2009, at 5:00
p.m. at the Dent County Sheriffs Department. Father went to
the sheriffs office at the appointed time and waited for over
an hour, but Mother did not appear.
to Father, instead of bringing them to the sheriffs office,
Mother had taken the children to a home in Iowa owned by
people known to Grandparents. Over the next three years,
Mother moved the children from Iowa to North Carolina,
Florida, Texas, Oklahoma, Wyoming, and finally to Kansas, all
the while evading the authorities' attempts to locate
Mother and the children. During that three-year time period,
the children were not allowed to attend school, were forced
to disguise themselves by getting haircuts and coloring their
hair, and were not allowed to have friends. Grandparents
aided Mother in making these moves, either by providing her
with money or by assisting her in finding places to live in
those various states. The children were finally returned to
Missouri in late August 2012 when law enforcement located
them in Kansas.
Mother returned to Missouri, she was charged with two felony
counts of parental abduction. Those charges were eventually
amended to misdemeanors, and Mother was placed on a two-year
period of unsupervised probation, which she was still on at
the time of trial.
claims against Mother and Grandparents were for interference
with his custodial rights based upon their abducting the
children after the dissolution judgment had made Father their
legal custodian. The theory of the children's false
imprisonment claims against Mother and Grandparents was that
they unlawfully restrained the children by removing them from
the state against Father's wishes. Plaintiffs'
petition alleged that the children "did not and, because
of their minority, could not lawfully consent to this
majority of the trial concerned whether Father had sexually
abused WM. WM testified that he had no recollection of Father
ever having abused him, and he did not remember ever having
made such allegations against Father. Defendants contended
that Mother was justified in taking the children, and
Grandparents were justified in aiding and assisting her
because they believed that Father had sexually abused WM.
testified at trial. They admitted that they had taken the
children in violation of a court order, but they argued that
they were acting under a reasonable belief that Father had
sexually abused WM, thus putting the children at risk while
in Father's care. Mother asserted her Fifth-Amendment
right against self-incrimination and did not testify at her
deposition or at trial. The trial court later instructed the
jury that "[i]n reaching a decision in this matter, you
may but are not required to infer that had [Mother] responded
truthfully to the questions posed to her during her
deposition, her answers would have been unfavorable to her,
or would have corroborated the testimony provided by
Plaintiffs and their witnesses."
jury returned a verdict in favor of Father and the children
on all claims against Defendants. However, as to interference
with Father's custodial rights ("Count 1"), the
jury assessed Father's compensatory damages at
"$0[.]" As to false imprisonment of WM ("Count
2"), the jury assessed WM's compensatory damages at
$75, 000. As to false imprisonment of OM ("Count
2"), the jury assessed OM's compensatory damages at
$75, 000. The jury also found that Plaintiffs were not
entitled to punitive damages.
recite additional evidence as necessary to address the
parties' various points on appeal, and for ease of
analysis, we do not take them up in strict numerical order.
sole point claims as follows that the trial court erred in
overruling his motion for a new trial based upon
Defendants' allegedly "improper" jury argument.
The trial court erred in overruling [Father]'s motion for
a new trial based on Defendants' improper jury argument
because Defendants' argument was without legal or factual
justification and was prejudicial in that Defendants
"requested" that the jury transfer any damages it
might award to [F]ather to [the children] because "we
don't reward molest[e]rs" and the jury thereafter
found [D]efendants liable for interference with
[Father]'s custodial rights but awarded $0 in
compensatory damages despite undisputed evidence that
[F]ather incurred expenses related to his three-year search
for his children in addition to non-pecuniary damages.
point conflates two separate statements made during
Defendants' closing arguments, and we will analyze them
separately. First, Mother's counsel argued, "We
don't reward child molesters. They aren't entitled to
a dime, I don't care what they say; they're not
entitled to it, and don't reward this man." Because
Father did not object to that argument at trial, his claim is
not preserved for review. Potter v. Kley, 411 S.W.3d
388, 391-92 (Mo. App. E.D. 2013).
Unpreserved claims of error are subject only to review for
plain error. [Rush v. Senior Citizens Nursing Home Dist.
of Ray County, 212 S.W.3d 155, 162 (Mo. App. W.D.
2006).] Under Rule 84.13(c),  "[p]lain errors affecting
substantial rights may be considered on appeal, in the
discretion of the court, though not raised or preserved, when
the court finds that manifest injustice or miscarriage of
justice has resulted therefrom." Rule 84.13(c). Comments
made during closing arguments rarely rise to the level of
plain error entitling a party to relief. Rush, 212
S.W.3d at 163.
Id. at 392.
did not request plain-error review of this argument, and we
decline to do so sua sponte. See Mitchell v.
Wilson, 496 S.W.3d 579, 584 n.5 (Mo. App. S.D. 2016).
counsel later argued:
My clients have asked something, and I'm going to make
that request to you, and that is this: That if you do decide
to give anything more than nominal damages in this case, they
have asked that you give it to the boys, rather than to
[Father]. I'd rather have you have recovery for them.
immediately objected that the argument was "utterly
improper," and he requested a mistrial. The trial court
denied the request for mistrial and advised the jury that it
was to be guided by the court's instructions.
the jury returned its verdict awarding Father "$0"
in compensatory damages, Father stated:
Prior to the discharge to discharging the [j]ury, I just want
to renew my motion for a new [sic] trial that I stated
previously, [during defense counsel]'s improper argument
to the jury in closing. I feel that it's clear now that
that argument had a direct impact on the jury's verdict.
As indicated by the verdict, I'd like to go renew that
motion at this time.
trial court again denied Father's request for a mistrial.
mistrial is a drastic remedy, granted only in extraordinary
circumstances." State ex rel. Kemper v.
Vincent, 191 S.W.3d 45, 49 (Mo. banc 2006) (quoting
State v. Parker, 886 S.W.2d 908, 922 (Mo.
banc 1994)). "Objections to evidence and argument must
be specific." State v. White, 870 S.W.2d 869,
873 (Mo. App. W.D. 1993) (citing State v. Jones, 806
S.W.2d 702, 705 (Mo. App. E.D. 1991)). "The statement
'that's improper argument' is too general and
nonspecific to preserve the issue for appellate review."
White, 870 S.W.2d at 873 (citing State v.
Beatty, 849 S.W.2d 56, 61 (Mo. App. W.D. 1993)). Thus,
the trial court was free to simply deny or ignore it. See
Sparkman v. Columbia Mut. Ins. Co., 271 S.W.3d
619, 624 (Mo. App. S.D. 2008) ("A vague, general
objection does not allow the trial court to make an informed
ruling as to the validity of the objection").
will not convict a trial court of error on an issue that it
had no chance to decide." Kline v. City of Kansas
City, 334 S.W.3d 632, 641 n.4 (Mo. App. W.D. 2011)
(quoting Goralnik v. United Fire & Cas. Co., 240
S.W.3d 203, 210 (Mo. App. E.D. 2007)). Father's point is
of Points Alleging Instructional Error
"An instruction will be given or refused by the trial
court according to the law and the evidence in the
case." Eckerd v. Country Mut. Ins. Co., 289
S.W.3d 738, 746 (Mo.App.2009). "We review the evidence
in the light most favorable to the submission of the
instruction." Id. This Court reviews "the
trial court's submission of a jury instruction ... de
novo." Rinehart v. Shelter Gen. Ins. Co., 261
S.W.3d 583, 593 (Mo.App.2008); see Gumpanberger v.
Jakob, 241 S.W.3d 843, 846 (Mo.App.2007). "The
court will determine if the instruction is supported by
substantial evidence by viewing the evidence in a light most
favorable to the instruction and disregard contrary
evidence." Syn, Inc. v. Beebe, 200 S.W.3d 122,
128 (Mo.App.2006). A new trial is warranted "'only
if the offending instruction misdirected, misled, or confused
the jury, resulting in prejudicial error.'"
Rinehart, 261 S.W.3d at 593 (quoting Kopp v.
Home Furnishing Ctr., LLC., 210 S.W.3d 319, 328
(Mo.App.2006)); see McBryde v. Ritenour School
Dist., 207 S.W.3d 162, 168 (Mo.App.2006). Stated another
way, "[r]eversal for instructional error should not
occur unless it is found that the instruction contains an
error of substance with substantial potential for prejudicial
effect." White v. Curators of Univ. of
Missouri, 937 S.W.2d 366, 369 (Mo.App.1996).
State ex rel. Missouri Highway & Transp. Comm'n
v. Dale, 309 S.W.3d 380, 384-85 (Mo. App. S.D. 2010).
1 - Modification of False Imprisonment Verdict Director
first point claims the trial court erred in submitting a
modified Missouri Approved Instruction ("MAI") on
the children's false imprisonment claims because the
instruction as submitted asked the jury to decide whether
Father had consented to the children being
restrained by Mother -- not whether the children had
consented to their restraint.
approved MAI for false imprisonment reads as follows:
Your verdict must be for plaintiff if you believe:
Defendant intentionally [restrained] [instigated the
restraint of] plaintiff against plaintiff's will.
MAI 23.04 (footnote omitted).
In this case, the trial court submitted a modified version of