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J.C.M. v. J.K.M.

Court of Appeals of Missouri, Southern District, First Division

April 16, 2019

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.


          DON E. BURRELL, P.J.

         Every 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."[1]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.[2]

         In six 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.

         Finally, 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.


         Mother 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.

         After 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 Father.

         When the dissolution judgment awarded custody of the children to Father, Mother abducted the children and fled the state.[3] 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 imprisonment.[4]

         The 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 findings:

• 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 impossible;
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 court orders;
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.

         The 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.

         Unbeknownst 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.

         When 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.

         Father's 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 abduction."

         The 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.

         Grandparents 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."

         The 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.

         We 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.


         Father's Direct Appeal

         Father's 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.

         Father's 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), [5] "[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.

         Father 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).

         Grandparents' 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.

         Father 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.

         When 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[6] 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.

         The trial court again denied Father's request for a mistrial.

         "A 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").

         "[W]e 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 denied.

         Defendants' Cross-Appeal

         Review 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).

         Point 1 - Modification of False Imprisonment Verdict Director

         Defendants' 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.

         The approved MAI[7] 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 MAI ...

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