In Re the Marriage of Amy C. BESHERS (Now Quinn), Petitioner/Appellant/Cross-Respondent, v. Paul W. BESHERS, Respondent/Respondent/Cross-Appellant

In re the Marriage of: )
)
AMY C. BESHERS (now Quinn), )
)
Petitioner/Appellant/Cross-Respondent, ) Nos. SD32696 and SD32715
) Consolidated
vs. ) Filed: July 2, 2014
)
PAUL W. BESHERS, )
)
Respondent/Respondent/Cross-Appellant. )
APPEAL FROM THE CIRCUIT COURT OF WEBSTER COUNTY
Honorable Donald G. Cheever, Associate Circuit Judge
AFFIRMED
Amy C. Beshers Quinn (“Mother”) and Paul W. Beshers (“Father”) cross-appeal the trial
court’s February 7, 2013 “Amended Judgment and Decree of Modification.” See Rules 81.04(c)
and 84.04(i).1 Mother’s appeal (SD32696) and Father’s appeal (SD32715) were consolidated for
purposes of this opinion. On appeal, Mother raises five points of alleged trial court error, and
Father raises a single point of alleged trial court error. Finding no merit in any of these points,
we affirm the judgment of the trial court.
1
References to rules are to Missouri Court Rules (2013).
Factual and Procedural Background
In the light most favorable to the judgment, the following facts were adduced at trial. On
August 13, 2009, a “Modified Judgment and Decree of Dissolution of Marriage” (“Dissolution
Judgment”) was entered dissolving the marriage of the parties and awarding the parties joint
legal and physical custody of the three minor children born of the marriage: C.M.B., M.K.B.,
and C.J.B. (collectively “the children”), with Mother’s address designated for mailing and
educational purposes. Father was ordered to pay financial support to Mother for the children in
the total amount of $545 per month.
On December 3, 2009, an altercation occurred between C.M.B., Mother, and Mother’s
current husband (“Quinn”), over an argument C.M.B. had with M.K.B. Mother spanked C.M.B.
with a plastic cutting board, and Quinn then spanked C.M.B. with a wooden paddle. Each
spanked C.M.B. numerous times resulting in both the plastic cutting board and the wooden
paddle being broken.
On December 4, 2009, Father saw C.M.B. was badly bruised from his waist to the middle
of his legs. The primary bruising was on his buttocks, both of which were severely bruised.
Father immediately called the hotline for the Missouri Department of Social Services and was
directed to take C.M.B. to the agency’s office in Marshfield. Officer Todd Clark (“Officer
Clark”) of the Marshfield Police Department was contacted to take photographs of C.M.B.’s
injuries.
C.M.B. was bruised to such an extent that Officer Clark recommended criminal charges
be filed against Mother and Quinn. He prepared probable cause statements and provided those to
the prosecuting attorney. Criminal charges were thereafter filed against Mother and Quinn;
2
however, the charges were dismissed after Mother signed a deferred prosecution agreement in
which she admitted striking C.M.B.
Due to C.M.B.’s injuries, the Children’s Division of the Missouri Department of Social
Services implemented a safety plan wherein C.M.B. was placed with Father and had supervised
visitation with Mother. C.M.B. has lived with Father since December 4, 2009.
On April 13, 2010, Father filed a “Motion to Modify Judgment of Dissolution of
Marriage as to Child Support, Child Custody and Visitation.” Father sought to have the
Dissolution Judgment modified and asked the court to enter a new custody and support order in
regard to the children. Father alleged that the children had undergone continuing and substantial
changed circumstances, citing the December 3, 2009 spanking incident as support. Father’s
proposed parenting plan called for sole legal and physical custody of the children with
supervised visitation for Mother. In her answer, Mother denied Father’s allegations and
requested the court refuse to modify the Dissolution Judgment as there were no substantial and
continuing changes of circumstances.
On May 19, 2010, the court appointed Teresa Housholder (“Housholder”) as guardian ad
litem, a position she held until November 29, 2010, when the trial court granted her leave to
withdraw. Kevin Easley (“Easley”) was subsequently appointed to serve as guardian ad litem.
On June 4, 2010, the court entered a “Temporary Order” that C.M.B. would attend
weekly counseling with Karon Harms (“Harms”).
On December 16, 2010, Father filed a “Motion for Sanctions,” alleging Mother had failed
to pay her portion of the guardian ad litem fees to Housholder as ordered by the court, Mother
had failed to pay her share of the counseling sessions with Harms as ordered by the court, and
requested that Mother be sanctioned as a result. On March 28, 2011, the court heard argument
3
on Father’s Motion for Sanctions. The court made the following docket entry: “Court hearing
agreement [sic] on [Father]’s Motion for Sanctions and takes same under advisement.”
Thereafter, on September 28, 2011, Father filed a “Second Motion for Sanctions” with the same
allegations as to Mother’s nonpayment of fees.
On May 25, 2011, the court ordered Mother and Father to engage in “high-conflict
resolution counseling” with John Duncan (“Duncan”).
On January 25, 2012, Mother filed a “Counter-Motion to Modify Judgment of
Dissolution of Marriage as to Child Support, Child Custody and Visitation.” Mother alleged that
there were changes in circumstances so substantial and continuing as to make the terms of the
Dissolution Judgment unreasonable and that as a result, a modification was necessary to serve
the best interests of the children.
A bench trial was held on February 1 through 3, 2012. Prior to trial, the trial court
observed that leave had not been granted for Mother to file her counter-motion to modify and
asked the parties whether there were any objections. Father’s counsel did object stating that the
motion was untimely (six days before trial) because Father would not have time to file any
responsive pleadings, and that the relief sought by Mother was available as a part of Father’s
motion to modify. The trial court agreed with Father’s counsel that “the relief requested is
available to you already” and, on that basis, sustained Father’s objection. Mother, however, did
introduce evidence at trial supporting her counter-motion to modify, including her proposed
parenting plan that provided she would have sole physical and sole legal custody of the children.
As relevant for purposes of this appeal, evidence was adduced at trial regarding the
present state of C.M.B.’s relationship with Mother. Harms believed that C.M.B. was physically
and emotionally afraid of Mother and that he would run away if ordered to live with her.
4
According to Harms, her sessions with C.M.B. and Mother became so combative that she had to
suspend the sessions. During his testimony, C.M.B. confirmed that he wanted no contact with
Mother even if arranged in a controlled setting. When C.M.B. was asked if he could tell some
positive or good things about Mother as a parent, C.M.B. stated that, “I don’t know any.”
C.M.B. testified he disliked Mother a lot and for all he cared “she could fall off the face of the
earth and die and [he] wouldn’t care.” On one occasion, to avoid a scheduled visit with Mother,
C.M.B. ran away from school.
At the conclusion of the evidence, the trial court took the case under advisement. On
October 16, 2012, the trial court entered its “Judgment and Decree of Modification.” Thereafter,
on November 14, 2012, Father filed a “Motion to Amend Judgment and Motion for New Trial
and Suggestions in Support Thereof.” In this motion, Father argued that the trial court’s
judgment lacked written findings as to the factors listed in section 452.375.2, was incorrect as to
the effective date of child support, and was incomplete and unenforceable by its terms with
regard to a contempt order contained therein.
On February 7, 2013, the trial court entered its “Amended Judgment and Decree of
Modification” (“Final Judgment”), which amended an earlier judgment pursuant to Father’s
November 14, 2012 Motion to Amend Judgment and Motion for New Trial and Suggestions in
Support Thereof. Under the trial court’s Final Judgment, the Dissolution Judgment was
modified as it applied to C.M.B., but not modified as it applied to M.K.B. and C.J.B. The trial
court found that the December 3, 20092 “spanking” or “beating” of C.M.B. by Mother and Quinn
that left “significant bruising” on C.M.B.’s bottom and upper legs, resulted in significant issues
between Mother and C.M.B. for which C.M.B. had been receiving counseling since the incident.
2
The trial court’s Final Judgment indicates the date of the spanking to be December 13, 2009, which is a
typographical error. The correct date was December 3, 2009.
5
However, the trial court believed that but for Father’s influence, Mother and C.M.B. could have
reconciled and that the spanking by itself would not, in the trial court’s opinion, justify a
modification of the court’s prior order. The trial court acknowledged the spanking had become a
major source of friction between Mother and C.M.B. and helped shape C.M.B.’s feelings toward
Mother.
The trial court further stated that Father had engaged in “frequent and deliberate attempts
to alienate all the children toward [Mother].” While M.K.B. and C.J.B maintained a good
relationship with Mother, C.M.B., as a result of the spanking incident and Father’s attempts at
alienation, had developed “an extremely bitter and unhealthy attitude toward [Mother]” and
noted C.M.B.’s propensity to run away. Relying on Easley’s written recommendations,3 the trial
court concluded that until some amount of reconciliation could be achieved between Mother and
C.M.B., Mother having residential custody of C.M.B. is “at best, risky” and “has the potential for
disaster.” Additionally, the trial court was concerned that the conflict between C.M.B. and
Mother would have an adverse affect on the other children, especially M.K.B.
The trial court concluded that both Father’s proposed parenting plan and Mother’s
proposed parenting plan provided for custodial arrangements that were not in C.M.B’s best
interest. Therefore, the trial court rejected both plans and ordered the parties would have joint
legal and physical custody of C.M.B., pursuant to the trial court’s “Parenting Plan.”
3
In its Final Judgment, the trial court quoted the guardian ad litem as stating:
I believe that if [C.M.B.] were ordered to return to the residential placement [with Mother], he
would run from her placement which could potentially place him at risk of great harm. Because of
[C.M.B.]’s predisposition to run, it is my recommendation that [C.M.B.] begin therapeutic
visitation with [] Mother and therapist John Duncan.
While we cannot refer to the guardian ad litem’s report as it was not filed with the record on appeal, we presume it
to be consistent with the trial court’s findings. See In re J.M., 1 S.W.3d 599, 600 (Mo.App. S.D. 1999).
6
The trial court’s Parenting Plan designated Father’s address as C.M.B.’s address for
mailing and educational purposes. Within ten days following the execution of the trial court’s
Final Judgment, C.M.B. and Mother were ordered to begin counseling with Duncan with
“[s]ession frequency, and makeup of session to be determined by [Duncan] and shall continue
until [Duncan] concludes no further sessions are necessary.” Within sixty days, or sooner if
determined by Duncan, Mother was to have unsupervised “visits” with C.M.B. on a schedule to
be determined by Duncan. Thirty days after the initial unsupervised visit, Mother was to have
eight overnight unsupervised “visits” from 6 p.m. on Fridays to 6 p.m. on Saturdays, to occur
when M.K.B. and C.J.B were present. After the eight visits were completed, the “visits” would
extend to 6 p.m. on Sundays. Mother also was to have seven consecutive days of unsupervised
“visitation” with C.M.B. beginning the summer of 2013. Starting with Thanksgiving 2013,
C.M.B. was to be on the same holiday schedule as M.K.B. and C.J.B. for Thanksgiving,
Christmas, New Year’s Day, Easter, Memorial Day, July 4th, and Labor Day.
The trial court’s Parenting Plan further provided that “[n]either party shall have on their
person or in their presence any recording device for the purpose of recording any conversation
between themselves and [C.M.B.], nor shall either party allow any other party to record any
conversation between themselves and [C.M.B.].”4
Additionally, the trial court ordered that Father’s child support obligation for C.M.B. be
terminated effective March 1, 2012, but no order was made for Mother to pay child support to
Father for C.M.B. The trial court found that Father had not been forthright in his testimony and
responses concerning his income.
4
As acknowledged by Mother, and despite C.M.B.’s wishes, Mother has attempted to use a recording device during
at least one scheduled visit with C.M.B. Mother further acknowledged that she has recorded telephone
conversations between the children and Father.
7
The trial court also found that Mother had “intentionally and contumaciously” violated
the court’s orders in failing to pay fees she owed to Housholder and Harms and as a result, was
in contempt. Mother could purge herself of contempt by paying $1,004.50 to Harms and $2,450
to Housholder in separate monthly installments of a least $50 per month until the balances were
paid. The trial court further ordered that “[s]hould [Mother] fail to perform the acts as set forth
above, she will be placed in the custody of the Sheriff of Webster County until such time as she
has entirely purged herself of contempt.”
In five points on appeal, Mother alleges that the trial court erred in: (1) transferring
“residential custody” of C.M.B. from Mother to Father in that it rewarded Father for his
successful attempt at alienation, and such transfer was contrary to the best interests of C.M.B.;
(2) finding that there were substantial and continuing changed circumstances concerning C.M.B.
because Father failed to prove the allegations in his motion to modify; (3) ordering that neither
party shall have on their person or in their presence any recording device for the purpose of
recording any conversation between themselves and C.M.B., nor shall have any other party
recording any conversations because such an order may only be entered after a finding of
impairment or endangerment of the minor child pursuant to section 452.4005; (4) finding that
Mother intentionally and contumaciously violated the court’s orders by failing to pay fees to
Harms and Housholder because the court never ordered Mother to pay Harms’ fees and Father
was not the real party in interest and thus lacked standing to institute contempt proceedings; and
(5) delegating to Duncan certain authorities because such was an unconstitutional delegation of
the court’s authority.
5
All references to section 452.400 are to RSMo Cum.Supp. 2005.
8
In his cross-appeal, Father alleges the trial court erred in entering its judgment of
modification because it erroneously modified the financial support to be paid on behalf of
C.M.B. in that the trial court failed to accept or reject the calculations of the presumed correct
child support amount as required by law.
The issues presented for our determination are:
1. Can Mother argue on appeal that there was no change in circumstances?
2. Was the trial court’s best-interests finding erroneous?
3. Is section 452.400 applicable here where both Mother and Father have joint
physical custody of the children?
4. Is the trial court’s contempt judgment against Mother final and appealable?
5. Did the trial court grant Duncan the authority to alter C.M.B.’s custody
arrangement?
6. Did Father properly preserve the trial court’s alleged error in modifying the
financial support to be paid on behalf of C.M.B.?
Standard of Review
As this is a court-tried case, review of this case is governed by Murphy v. Carron, 536
S.W.2d 30 (Mo. banc 1976). 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 32. We view the evidence and all permissible inferences in the light most
favorable to the judgment and disregard all contrary evidence and inferences. Bridgeman v.
Bridgeman, 63 S.W.3d 686, 689 (Mo.App. E.D. 2002). “Substantial evidence is competent
evidence from which the trial court could reasonably decide the case.” Bauer v. Bauer, 38
S.W.3d 449, 455 (Mo.App. W.D. 2001).
9
“We presume the trial court reviewed all the evidence and awarded custody in view of
the children’s best interests.” Malawey v. Malawey, 137 S.W.3d 518, 522 (Mo.App. E.D. 2004).
The trial court is granted greater deference in a child custody matter than in other matters. Id.
We presume the court’s judgment is in accordance with the children’s best interests after
reviewing all of the evidence, and we will not reverse its decision unless we are firmly convinced
that the welfare and best interests of the children require otherwise. Id. “An appellant seeking to
reverse a trial court’s ruling concerning custody of a child has to overcome a high standard of
review.” Welch v. Welch, 12 S.W.3d 712, 713 (Mo.App. S.D. 1999).
Points I and II: Record Supports Judgment of Modification
In her first two points, Mother contends that the trial court erred in modifying the
Dissolution Judgment with respect to C.M.B. The proper standard for modification of a joint
physical custody judgment is found in section 452.410.1.6 Russell v. Russell, 210 S.W.3d 191,
194 (Mo. banc 2007). Under section 452.410.1, a court may not modify a prior custody decree
unless it finds, on the basis of facts which have arisen subsequent to that decree, that: “‘(1) a
change has occurred in the circumstances of the child or his custodian and (2) a modification of
custody is in the best interests of the child.’” Spire v. Adwell, 36 S.W.3d 28, 31 (Mo.App. W.D.
2000) (quoting Mobley v. Phillips, 942 S.W.2d 399, 400–01 (Mo.App. W.D. 1997)). The burden
of proof is on the party seeking modification to show the required change in circumstances.
Bather v. Bather, 170 S.W.3d 487, 493 (Mo.App. W.D. 2005).
We first address Mother’s second point on appeal in which she challenges the trial court’s
finding that “substantial and continuing changes in the circumstances” have arisen since the
6
All references to section 452.410 are to RSMo 2000.
10
entry of the trial court’s original custody order regarding C.M.B.7 Mother alleges that the trial
court’s finding was erroneous because Father failed to meet his burden to show the required
change in circumstances. In support, Mother notes that Father’s motion to modify relied on the
December 3, 2009 spanking incident to establish changed circumstances. However, the trial
court, as Mother notes, found that “[t]he spanking, by itself, would not, in this [c]ourt’s opinion,
justify a modification of this [c]ourt’s prior order, as requested by [Father].” Therefore,
according to Mother, “there was no basis to modify the prior judgment and parenting plan[.]”
Mother is incorrect. Our review is not limited to the specific allegations in Father’s
motion to modify. See Clayton v. Sarratt, 387 S.W.3d 439, 447 (Mo.App. W.D. 2013). Instead,
to determine whether the trial court’s judgment is supported by the record, we may look at all of
the evidence that was presented. Id.
We need not address, however, whether the record supports a finding of changed
circumstances in this case. “Both Father and Mother filed motions alleging that there had been a
change in circumstances sufficient to justify a modification, and both parties presented
evidence.” Id. Though the trial court sustained Father’s objection to Mother’s counter-motion to
modify as being untimely, the court agreed with counsel that the relief Mother sought was still
available under the court’s consideration of Father’s motion. Indeed, during trial Mother
introduced evidence that included her suggested parenting plan seeking a modification of the
7
Although the trial court found “substantial and continuing changes in the circumstances,” a showing that the
changes were “substantial and continuing” was not required in this case. Here, the trial court modified C.M.B.’s
address for educational and mailing purposes from Mother’s address to Father’s address and changed the parenting
time schedule for C.M.B. However, both Father and Mother retained joint legal and physical custody of C.M.B.
under the trial court’s modification. Therefore, the trial court’s modification changed the terms related to the
custodial arrangement and not the custodial arrangement itself. See Clayton, 387 S.W.3d at 445-46. “[I]n order to
modify the residential designation and the parenting time schedule, . . . the moving party must demonstrate a change
in circumstances; the change, however, need not be substantial.” Id. at 446. “Likewise, the change did not have to
be ‘continuing,’ despite the language in the findings, because ‘that is the standard for a modification of child
support, not custody.’” Id. at 447 n.18 (quoting Hightower v. Myers, 304 S.W.3d 727, 734 (Mo. banc 2010)).
11
Dissolution Judgment to award Mother sole legal and physical custody of the children.8 Mother
cannot now be heard to complain that there was no change in circumstances when she sought at
trial a modification of custody. See Bather, 170 S.W.3d at 494; see also Howsmon v.
Howsmon, 77 S.W.3d 752, 757 (Mo.App. S.D. 2002) (‘“On appeal, a party is bound by the
position he [or she] took in the circuit court and will not be heard on a different theory.”’)
(alteration in original) (quoting In re Marriage of Medlock, 749 S.W.2d 437, 440 (Mo.App. S.D.
1988)). Point II is denied.
We next address Mother’s first point, which is premised on the trial court’s finding that
“[Father] has engaged in frequent and deliberate attempts to alienate all the children toward
“[Mother,]” a finding which Mother does not dispute. Relying on this finding, Mother contends
that the trial court’s Parenting Plan was not in C.M.B.’s best interest for the reason that
“transferring custody of the alienated child [(C.M.B)] to the alienator [(Father)], thereby
reward[ed] [Father] for his successful attempts at alienation.” Mother further argues that,
because of Father’s actions, she has suffered a “hardship” because she (the non-alienating parent)
“now has restrictions imposed on her custodial time.”
Mother’s argument is flawed in that it incorrectly focuses on how the trial court’s
judgment affects her and Father. Our primary concern, however, is the best interests of the
children. Contrary to Mother’s apparent premise, although the trial court found that Father
alienated C.M.B. from Mother, this does not equate to a mandate that modification in favor of
Father is not in the best interests of C.M.B. or the other children. We have observed “that
custody rights are not meted with a design to reward one parent or punish the other, that each
8
Mother testified that she was seeking sole physical and legal custody of the children because she and Father were
unable to co-parent because of a failure of communication. “In the context of joint custody, a breakdown of parental
communication and cooperation is sufficient, in and of itself, to constitute a change in circumstances which can
afford the basis for modifying a prior decree.” McCauley v. Schenkel, 977 S.W.2d 45, 50 (Mo.App. E.D. 1998).
12
child custody case must be judged on its own facts and that parental rights are secondary to
determining what will best serve the welfare of the children, which is always our primary
concern.” Noland-Vance v. Vance, 321 S.W.3d 398, 419-20 (Mo.App. S.D. 2010) (quoting
Garrett v. Garrett, 464 S.W.2d 740, 743 (Mo.App. Spfld.D. 1971)); see also Gentry v.
Simmons, 754 S.W.2d 579, 582 (Mo.App. W.D. 1988) (“The ultimate and sole test is what will
be in the best interests of the child.”).
Here, as required, the trial court determined the best interests of C.M.B. pursuant to
section 452.375.2.9 Further, the trial court explicitly noted that it “does not in any way want to
reward [Father] for his actions[.]” However, the trial court stressed that “the alternative of
forcing [C.M.B.] back into a custodial relationship with [Mother] and [Quinn] is, at best, risky.”
The trial court noted C.M.B.’s statements “that he hates [Mother]; that he would not care if she
died; that he will not visit her; that if ordered to visit her, he will run away.” In fact, as the trial
court also observed, C.M.B. had already run away to avoid a scheduled supervised visit before
9
All references to section 452.375 are to RSMo Cum.Supp. 2011. To determine a child’s best interest, section
452.375.2 provides that a trial court shall consider all relevant factors including:
(1) The wishes of the child’s parents as to custody and the proposed parenting plan submitted by
both parties;
(2) The needs of the child for a frequent, continuing and meaningful relationship with both parents
and the ability and willingness of parents to actively perform their functions as mother and father
for the needs of the child;
(3) The interaction and interrelationship of the child with parents, siblings, and any other person
who may significantly affect the child’s best interests;
(4) Which parent is more likely to allow the child frequent, continuing and meaningful contact
with the other parent;
(5) The child’s adjustment to the child’s home, school, and community;
(6) The mental and physical health of all individuals involved, including any history of abuse of
any individuals involved. If the court finds that a pattern of domestic violence as defined in
section 455.010 has occurred, and, if the court also finds that awarding custody to the abusive
parent is in the best interest of the child, then the court shall enter written findings of fact and
conclusions of law. Custody and visitation rights shall be ordered in a manner that best protects
the child and any other child or children for whom the parent has custodial or visitation rights, and
the parent or other family or household member who is the victim of domestic violence from any
further harm;
(7) The intention of either parent to relocate the principal residence of the child; and
(8) The wishes of a child as to the child’s custodian. The fact that a parent sends his or her child
or children to a home school, as defined in section 167.031, shall not be the sole factor that a court
considers in determining custody of such child or children.
13
trial. The trial court accepted the recommendations of Easley and concluded that “[u]ntil such
time as [C.M.B.] and [Mother], as the result of the passage of time, or extensive counseling and
therapy, can achieve some amount of reconciliation, [Mother] having residential custody of
[C.M.B.] has the potential for disaster.” Additionally, the trial court expressed concern that the
conflict between C.M.B. and Mother, as well as C.M.B.’s “attitude and outspoken behavior,”
would have an adverse affect on the other children, especially M.K.B.
“In determining parenting time, unless a court specifically finds otherwise, it is “the
public policy in Missouri that frequent, continuing, and meaningful contact with both parents is
in the best interest of the child and that any custody determination should further this policy.”’
Clayton, 387 S.W.3d at 448 (quoting Hightower v. Myers, 304 S.W.3d 727, 735 (Mo. banc
2010)). Here, both parents retained joint physical custody of the children. Although under the
trial court’s Parenting Plan Father now has a greater percentage of parenting time with C.M.B.
than does Mother, “there is no requirement that parenting time be equally divided between
Mother and Father where they share joint physical and legal custody.” Id.
In light of the foregoing, we are not convinced that the trial court’s Parenting Plan is
erroneous. Point I is denied.
Point III: The Provisions of Section 452.400 are Inapplicable to This Case
In her third point, Mother contends that the trial court erred in ordering the following as
part of its Parenting Plan: “Neither party shall have on their person or in their presence any
recording device for the purpose of recording any conversation between themselves and
[C.M.B.], nor shall either party allow any other party to record any conversation between
themselves and [C.M.B.].” Because the trial court made no finding of impairment or
14
endangerment of C.M.B., Mother argues that the above-stated order violated section 452.400.
We disagree.
Section 452.400.2(1) provides, inter alia:
The court may modify an order granting or denying visitation rights whenever
modification would serve the best interests of the child, but the court shall not
restrict a parent’s visitation rights unless it finds that the visitation would
endanger the child’s physical health or impair his or her emotional development.
By its terms, section 452.400 only applies to “visitation.” Bell v. Bell, 125 S.W.3d 899, 904
(Mo.App. W.D. 2004). Although the trial court characterized Mother’s custodial time with
C.M.B. as “visitation” such characterization was erroneous because, as already established, the
trial court found “that the parties should exercise joint legal and joint physical custody of all the
children pursuant to the [c]ourt’s Parenting Plan[.]” “As a joint physical custodian, [Mother]
does not have ‘visitation,’ which is provided only to non-custodial parents under the express
terms of section 452.400.1.”10 Id.; see also Loumiet v. Loumiet, 103 S.W.3d 332, 337 (Mo.App.
W.D. 2003) (“[W]here the parties are awarded joint physical custody, there is no visitation
schedule, only a joint physical custody schedule[.]”). Therefore, section 452.400, which governs
visitation, is inapplicable to the instant case. Point III is denied.
Point IV: Contempt Appeal Not Reviewable
In her fourth point, Mother contends that the trial court erred in its finding “that [Mother]
did in fact intentionally and contumaciously violate the orders of this [c]ourt by the failing to pay
the fees of the former Guardian ad Litem, Teresa R. Housholder, Esq. and the counselor
appointed for the children, Karon A. Harms, M.S., as ordered by this [c]ourt.” Mother argues
that this finding was erroneous because she was never ordered by the trial court to pay for
10
The provisions of section 452.400.1(1) state “[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.” For ease of discussion, we shall denominate the periods of time in which
Mother has custody of C.M.B. as the trial court did in its Final Judgment.
15
counseling fees and Father “was not the real party in interest” and therefore “lacked standing to
institute contempt proceedings.”
Before addressing Mother’s claims this Court must, sua sponte, determine whether
Mother has presented an appealable judgment of contempt. See Jones v. Jones, 296 S.W.3d
526, 528 (Mo.App. W.D. 2009). To be appealable, a civil contempt order must be final. In re
Marriage of Crow and Gilmore, 103 S.W.3d 778, 780 (Mo. banc 2003).
“Where a contempt order has the purpose of coercing a party to comply with a court
order rather than punishing a party to protect, preserve, and vindicate the power and dignity of
the court, the order is one for civil contempt.” City of Pagedale v. Taylor, 790 S.W.2d 516, 518
(Mo.App. E.D. 1990). Here, because the trial court’s contempt order was issued for the purpose
of compelling Mother to pay fees for services rendered by Housholder and Harms, the trial court
found Mother in civil contempt.
‘“A party held to be in civil contempt has two options: (1) purge [herself] of the
contempt by complying with the court’s order, making the case moot and unappealable; or
(2) appeal the order, but only after the court’s order is enforced by incarceration or otherwise.”’
Bruns v. Bruns, 186 S.W.3d 449, 452 (Mo.App. W.D. 2006) (quoting Lieurance v. Lieurance,
111 S.W.3d 445, 446 (Mo.App. E.D. 2003)). A finding of contempt is interlocutory only and is
not final for purposes of appeal until it is actually enforced. Jones, 296 S.W.3d at 529. “Once a
trial court has issued an order of commitment, then the contempt order ‘changes from mere threat
to “enforcement,” and becomes final and appealable.’” Id. (quoting Gilmore, 103 S.W.3d at
782).
In this case, the trial court ordered Mother to pay $1,004.50 to Harms and $2,450 to
Housholder in separate monthly installments of a least $50 per month until the balances were
16
paid. The trial court further ordered that “[s]hould [Mother] fail to perform the acts as set forth
above, she will be placed in the custody of the Sheriff of Webster County until such time as she
has entirely purged herself of contempt.” However, Mother does not assert, and the record does
not contain, any indication that the above-stated order has been “enforced.” See id. “Where, as
in this case, there is no commitment order and no showing that the contemnor has ever been
arrested, confined, or posted bond, the contempt order is interlocutory only and not appealable.”
Id. Mother’s fourth point is premature and therefore is dismissed.
Point V: Trial Court Did Not Impermissibly Delegate Authority
In her fifth point, Mother contends that the trial court’s Parenting Plan was erroneous as a
matter of law because the plan constituted an improper delegation of judicial authority to the
counselor Duncan.
Mother cites a single case in support, Aubuchon v. Hale, 384 S.W.3d 217, 223 (Mo.App.
E.D. 2012), which recognized that “[p]ermitting others to alter custody arrangements is an
impermissible delegation of judicial authority.” Under the facts in that case, such an
impermissible delegation had occurred where a counselor was tasked with determining whether
there was a normalization of the relationships of the parents and children and, if so, a prior
parenting plan would be in full force and effect. Id. If the father failed to cooperate in the
opinion of the counselor, he would have no contact with his children. Id. If the mother failed to
cooperate in the opinion of the counselor, the prior parenting plan would go into effect. Id. The
court stated in its decision that if the normalization process failed, which it might despite the best
efforts of both parents, their only recourse was to file a motion to modify. Id. The Aubuchon
court concluded that the trial court was “allowing a counselor to determine if there has been a
17
normalization of the relationships of the parents and children to trigger or deny continued
custody arrangements.” Id.
The instant case, however, is not analogous to Aubuchon. Here, the trial court’s
Parenting Plan provides that Mother and C.M.B. will begin counseling with Duncan within ten
days of the Final Judgment. Counseling session frequency and duration shall be determined by
Duncan and shall continue until he concludes no further sessions are necessary. Within sixty
days of the first counseling visit, or sooner if Duncan determines Mother and C.M.B. are ready,
Mother will have an unsupervised visit with C.M.B at such location and for such duration as
Duncan shall determine. Additional unsupervised visits shall occur at such times as Duncan
determines. Thirty days after the initial unsupervised visit, Mother will begin parenting time
pursuant to the schedule laid out in the trial court’s Parenting Plan.
As the foregoing makes clear, the trial court’s Parenting Plan lays out a graduated
schedule of contact between Mother and C.M.B. The plan allows Duncan some discretion to
determine the frequency and duration of counseling sessions and initial unsupervised visits
between Mother and C.M.B. However, unlike Aubuchon, the trial court’s Parenting Plan does
not rely on the occurrence or non-occurrence of an event to “trigger” or “deny” a custody
arrangement. Whatever the outcome of Duncan’s counseling, Mother will have joint legal and
joint physical custody of C.M.B with a custody arrangement consisting of unsupervised visits
with C.M.B. at her residence on a set schedule laid out in the trial court’s Parenting Plan no later
than 100 days following the trial court’s Final Judgment. Because this custody arrangement is
not subject to “alteration” by Duncan (or anyone else), no impermissible delegation of authority
has occurred. Point IV is denied.
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Father’s Cross-Appeal: Allegations of Error as to Child Support Modification
Not Preserved for Review
Father asserts one point in his cross-appeal. He contends that the trial court erred in
modifying the child support to be paid on behalf of C.M.B., “in that the trial court failed to
accept or reject the calculations of the presumed correct child support amount made by [Mother]
and [Father] or to determine its own calculation of the presumed correct child support amount as
required by law.” As argued by Father, these allegations of error relate to the trial court’s failure
to make findings required by Rule 88.01.11
However, Father’s allegation of error was not raised in his November 14, 2012 Motion to
Amend Judgment and Motion for New Trial and Suggestions in Support Thereof. Effective
January 1, 2005, Rule 78.07(c) was amended to require an aggrieved party to file a motion to
alter or amend the judgment specifically raising “‘allegations of error relating to the form or
language of the judgment, including the failure to make statutorily required findings’ in order to
preserve those claims of error for appellate review.” In re M.D.D., Jr., 219 S.W.3d 873, 875-76
(Mo.App. S.D. 2007) (quoting Rule 78.07(c)) (internal quotations and citations omitted). In
Crow v. Crow, 300 S.W.3d 561, 566 (Mo.App. E.D. 2009), our Eastern District held that Rule
78.07(c) encompasses allegations of error that relate to a trial court’s failure to make findings
under Rule 88.01.12 As such, “allegations of error relating to a failure to make findings required
by Rule 88.01 in a court-tried case are not preserved for appeal and are thereby waived unless
raised in a post-trial motion to amend the court’s judgment pursuant to Rule 78.07(c).” Id.
11
To comply with Rule 88.01, a trial court is required to: (1) determine and find for the record the presumed correct
child support amount by using Form 14; and (2) make findings on the record to rebut the presumed correct child
support amount if the court, after consideration of all relevant factors, determines that the amount is unjust and
inappropriate. Brooks v. Brooks, 21 S.W.3d 834, 838 (Mo.App. E.D. 1999).
12
In reaching its holding, the Crow court recognized that “Rule 88.01 has been adopted by the Missouri Supreme
Court in compliance with a statutory mandate in section 452.340.8 that there be a rule in effect establishing child
support guidelines.” Crow, 300 S.W.3d at 566.
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Accordingly, Father failed to preserve his allegations of error for review and the sole point in his
cross-appeal is denied.
The Final Judgment of the trial court is affirmed.
WILLIAM W. FRANCIS, JR., C.J. - OPINION AUTHOR
NANCY STEFFEN RAHMEYER, P.J. - Concurs
DANIEL E. SCOTT, J. - Concurs
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