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Wuebbeling v. Wuebbeling

Court of Appeals of Missouri, Eastern District, Third Division

May 7, 2019

RONALD WUEBBELING, Petitioner/Respondent,
JILL WUEBBELING, n/k/a JILL CLARK Respondent/Appellant.

          Appeal from the Circuit Court of St. Louis County Honorable John R. Essner.

          SHERRI B. SULLIVAN, P.J.


         Jill Clark, formerly Jill Wuebbeling (Mother), appeals from the judgment of the trial court finding her in contempt of court, abating child support she was awarded for two minor children from Ronald Wuebbeling (Father), and awarding Father attorney's fees. We affirm in part, reverse in part, and remand the case with instructions.

         Facts and Background

         Mother and Father divorced in 2006. There were two children of their marriage: Daughter, age 18 at the time of this appeal, and Son, age 15. At the time of divorce Mother was awarded sole legal and physical custody of the children, with Father granted visitation. Father was ordered to pay Mother child support.

         Since that time, a great deal of litigation has taken place between Father and Mother, largely around custody and visitation. In 2006, the trial court granted Father's post-trial motion awarding him joint legal and physical custody of the children. Several months later, Mother filed for a temporary restraining order against Father, which was granted. In 2007, Mother filed another motion to modify as well as another order of protection. Thereafter, the trial court ordered Father to have an interlock system installed on his vehicle.

         In 2008, more litigation ensued. Mother filed for another temporary restraining order, and Father filed a motion to enforce judgment and for sanctions. After the hearing, the trial court found Father had placed the children in danger by driving while intoxicated during his custody period. The trial court ordered custody exchanges to take place at the Family Court Exchange Center. Father was ordered to submit to a breathalyzer test before and after custody exchanges.

         In 2010, the trial court awarded joint legal custody between the parents, with sole physical custody for Mother and visitation for Father. Father was again ordered to submit to breathalyzer tests before exchanges. In 2014, Mother filed for a temporary restraining order. This order was denied. The trial court noted the continuing family dysfunction and ordered the parties to begin counseling.

         Later in 2014, Father filed a motion for contempt and a motion for abatement of child support. In July 2015, Father's motions for contempt and child support abatement were granted. The trial court found Mother had withheld visitation from Father and awarded him compensatory visitation time; Mother had repeatedly failed in her obligation to foster a relationship between Father and the children; and Mother had spoken to the children about Father's alcohol problem, despite no "credible proof" Father had had a problem with alcohol for the past "several years." Mother appealed from this judgment, which was largely affirmed, but reversed on the trial court's order for Mother to pay counseling fees. Wuebbeling v. Clark, 502 S.W.3d 676 (Mo. App. E.D. 2016).

         Accompanying the trial court's July 2015 judgment was an order for Mother and Father to engage in further co-parenting counseling (counseling order). According to the trial court, the purpose of the counseling was to "educate Mother of the importance of providing the children with a continuing and meaningful relationship with both of their parents and to assist in reestablishing a relationship between the children and father." The counseling order stated the counselor was to "exercise [his] independent objective judgment in conducting the counseling program." Also included in the counseling order were the following two provisions:

3. Mother and Father are ordered to cooperate with the counselor and facilitate the children's participation in all aspects of the counseling program, including but not limited to scheduling and keeping appointments for themselves as requested by the counselor, providing information and records, completing any questionnaires and assessment instruments, and submitting to psychological testing and any other reasonable methods that he may employ in this therapy.
4. Mother and Father will cooperate with the counselor if necessary to briefly deviate from any existing custody and visitation schedule to permit the minor children to spend periods of time in the care of each parent as deemed necessary by him. This is not to be a change in visitation or custody but is for therapy purposes only.

         In November 2016, Father filed a Motion for Contempt and a Motion for Abatement of Child Support. The allegations in these motions were similar: Father alleged Mother had not complied with the counseling order to begin and participate in counseling, and that Father had not had visitation with the children pursuant to the existing visitation schedule laid out elsewhere in the Parenting Plan. The Motion for Contempt prayed the court order Mother to show cause for her refusal to comply with the 2015 counseling order, as well as her failure to comply with the visitation schedule pursuant to the Parenting Plan. The Motion for Abatement prayed the court enter an order pursuant to Section 452.340.7 abating Father's child support obligations retroactively to entry of the counseling order, the time Father alleges Mother began violating the visitation schedule. The motion also prayed the court should abate Father's child support prospectively until such time as Mother complies with the court-ordered visitation schedule. Father also requested an award of attorney's fees.

         A hearing was held on Father's motion in January 2018. The first witness to testify was Rick Orlando (Orlando), the counselor who provided services to the family pursuant to the 2015 counseling order. Orlando testified he had received the counseling order issued by the court, and it was his understanding his role was to assist in reuniting Father with the children. Orlando stated he met with Mother initially in October 2015. Mother informed him of the court's finding she had created a toxic environment for the children and caused their alienation from Father. At this appointment, Orlando provided Mother with information about the importance of the children having a relationship with both parents.

         After this initial appointment, Mother returned with the children for their counseling appointment with Orlando. Orlando testified that during this session the children told him they did not want to see their father. They told Orlando Father drank alcohol frequently and had driven under the influence of alcohol while they were in the car. The children also told Orlando that Father frequently had issues with anger and had been physically violent toward them. Daughter related to Orlando an instance when Father slapped her, pushed her to the ground, and forced her to stand in a corner for several hours. Both children told Orlando they were afraid to spend time with Father.

         Orlando next met with Father. Orlando testified when he related the children's concerns to Father, he felt Father minimized them. Orlando recalled Father confirming he drank alcohol, but telling Orlando he did not have a problem with alcohol as the children claimed. Nevertheless, Orlando recommended Father seek anger management or alcohol addiction classes, or both, in order to begin repairing his relationship with the children. Orlando admitted he did not confirm whether the children's accusations were true or not. Rather, Orlando felt it was significant that, regardless of what had actually occurred, the children genuinely believed their father had problems with alcohol and anger. In Orlando's view, Father taking steps to address these issues would, if nothing else, demonstrate to the children he sincerely wanted to repair their relationship.

         After the session, Orlando contacted Mother and told her he was recommending the children have no further visitation with Father until he sought help for alcohol and anger issues. Orlando also proposed to Mother a counseling session among the children, Father, and her. Sometime later, Mother and Orlando spoke again, and she informed Orlando the children refused to meet with Father in counseling at that time. Orlando did not thereafter contact either party to request further counseling appointments be scheduled. When asked why he did not direct the parties to set further appointments, he stated it was not his practice to do so. Orlando stated he considered it to be incumbent on patients to set their own appointments, and never directs his patients to make appointments. Orlando also testified that, to his knowledge, Father never sought treatment for anger or alcohol issues.

         The children's guardian ad litem (GAL) testified at the hearing. The GAL stated he had arranged to have Orlando counsel the family. The GAL testified that, in his opinion, Father did have issues with alcohol, although the GAL had never recommended to the court Father receive treatment.

         Mother and Father also testified at the hearing. Father testified contrary to Orlando, stating Orlando had never made any recommendations he seek treatment for his anger or alcohol issues. Father testified he had received no visitation with the children since August 2015, despite numerous emails and messages he sent Mother to try to arrange it.

         Mother testified she had never received such messages from Father. Mother also testified she believed she had complied with the counseling order and had done everything Orlando had asked her to do. When asked why she did not make any further appointments after the children refused to see their Father with Orlando, she stated she believed the counselor had communicated that there should be no further counseling until Father took affirmative steps to address his anger and alcohol issues. She also testified she was unable to exchange the children with Father, because at some point in the past their exchanges had become so disruptive the Family Exchange Center had banned them from the premises, and so she did not have the ability to exchange the children with Father.

         After taking the matter under submission, the court entered judgment granting both Father's Motion for Contempt and Motion for Abatement of Child Support. This judgment was accompanied by findings of fact and conclusions of law. The court found Mother did not violate the counseling order with respect to when she initiated counseling. However, it did find Mother violated the provision of the counseling order requiring her "to facilitate the children's participation in all aspects of the counseling program." In the court's view, Mother failing to schedule a counseling appointment involving the children and Father together, which had been proposed by the counselor, amounted to contravening the counseling order. Additionally, the court found Mother's stated reason, that she believed the counselor had directed her not to continue counseling until Father complied with his recommendations to seek alcohol and anger counseling, to be contrary to what Orlando had testified he had told Mother, which was that visitation was to be suspended until Father sought help. Thus, the trial court found Mother's excuse to be incredible and her defiance of the court order to be contumacious.

         The court also found Mother had not complied with the existing visitation schedule by not exchanging the children with Father since entry of the 2015 counseling order, and she had done so without good cause. Therefore, the court ordered Father's child support obligations to Mother retroactively abated from August 2015 through January 2018, as well as prospectively until Mother complies with the orders of the court. Father's request for attorney's fees was also granted.

         Finally, the court noted that although Father claimed at the hearing Orlando never recommended he receive treatment for alcohol and anger issues, his testimony was contradicted by a correspondence between Orlando and Father where the recommendation was repeated. Going forward, the court suggested Father seek the help Orlando suggested, if only to "address those ideas that have been put into the minds of the children as a result of Wife's actions and statements." As of the time of oral argument in the instant appeal, Father had not sought any alcohol or anger management counseling.

         Points Relied On

         Mother makes four claims of error on appeal. Point I claims the trial court erred in finding Mother in contempt of the counseling order. Mother asserts a number of grounds for this alleged error, including the trial court's order was too vague and indefinite to enforce in contempt. Point II claims the trial court erred in finding her in contempt for violating the visitation schedule, partially on those same grounds. Points III and IV claim the trial court erred by awarding Father child support abatement and attorney's fees, respectively, because the contempt findings upon which the awards were based were erroneous.

         Appealability of ...

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