Conoyer v. Kuhl

• Decision Date: 04 December 2018
• Docket Number: No. ED 106413,ED 106413
• Citation: 562 S.W.3d 393
• Parties: Kyle CONOYER, Petitioner/Appellant, v. Rachel KUHL, Respondent/Respondent.
• Court: Missouri Court of Appeals

562 S.W.3d 393

Kyle CONOYER, Petitioner/Appellant,

v.Rachel KUHL, Respondent/Respondent.

No. ED 106413

Missouri Court of Appeals, Eastern District, DIVISION THREE.

Filed: December 4, 2018

Rachel S. Gray, 13321 N. Outer Forty Road, Suite 300, Town and Country, MO 63017, For Petitioner/Appellant.

Eric M. Tuncil, 7751 Carondelet Avenue, Suite 505, St. Louis, MO 63105, For Respondent/Respondent.

SHERRI B. SULLIVAN, P.J.

Introduction

Kyle Conoyer (Appellant) appeals from the motion court’s order and judgment granting Rachel Kuhl’s (Respondent) motion to dismiss Appellant’s Amended Petition for Third Party Custody. We reverse and remand.

Factual and Procedural Background

Appellant and Respondent were in a romantic relationship in high school. They broke off their relationship sometime around January, 2011. Shortly thereafter, Respondent became pregnant as a result of a non-consensual sexual encounter with another man. Afterwards, while Respondent was pregnant, she and Appellant resumed their relationship. Respondent told Appellant of the pregnancy; the child, E.K., was born April 11, 2012.

Appellant and Respondent continued their relationship for the next several years. Appellant and Respondent lived together, and Appellant helped care for E.K. Appellant viewed his relationship with Respondent and E.K. as that of a family, and he views E.K. as his daughter, if not in biological fact. Appellant and Respondent were never married.

The couple separated sometime around 2016 or 2017. Since their separation, Respondent has not allowed Appellant any contact with E.K.

On July 25, 2017, Appellant filed a petition with the St. Charles County Circuit Court for third-party custody, pursuant to Section 452.375.5.¹ With the court’s leave, Appellant filed an Amended Petition for Third Party Custody (Amended Petition) on November 11, 2017, which set out the facts of his relationship with Respondent and E.K. in further detail. Among the facts alleged were:

- Appellant assumed the role of a father to E.K., and E.K. referred to Appellant as "Dad" and to Appellant’s parents as "Grandma" and "Grandpa."

- Friends and acquaintances of Appellant and Respondent believed Appellant to be E.K.’s father.

- Respondent referred to E.K. as "your baby" during her pregnancy.

- Appellant was present during E.K.’s birth, cut the umbilical cord, and held her after the delivery.

- Appellant and Respondent chose E.K.’s name together.

- Appellant and Respondent purchased a house. The house was in Respondent’s name, but Appellant provided the down payment and made mortgage payments.

- Appellant provided for E.K. financially and cared for her when Respondent was at work.

- Appellant, Respondent, and E.K. lived the life of a typical family, spending time during the week and on weekends doing family activities such as game nights, trips, and birthday parties.

- Appellant, Respondent, and E.K. slept in the same bed together.

- Appellant, Respondent, and E.K. spent holidays with each other’s respective families.

- Appellant and Respondent were at one point engaged and planning a wedding.

- During this period, Respondent invited and encouraged Appellant to take an active parental role with E.K.

- Since their separation, E.K. had become emotionally distraught due to her lack of contact with Appellant, whom she viewed as her father.

- E.K.’s biological father had played no role whatsoever in her life, and is an unsuitable, unwilling custodian of E.K.

- Respondent had herself proven to be an unfit custodian by refusing to allow contact between Appellant and E.K.

- Appellant is a suitable custodian, and able and willing to provide an adequate and stable environment for E.K.

- Finally, Appellant alleges these circumstances constitute special or extraordinary circumstances rendering it in E.K.’s best interests to continue to have contact with Appellant, and to grant custody rights to Appellant.

Appellant attached one exhibit, a copy of a text message allegedly received from Respondent, to his Amended Petition.

On the same day he filed his Amended Petition, Appellant also filed a motion to appoint a guardian ad litem to investigate whether the welfare of E.K. required he be granted third-party custody rights.

On December 4, 2017, Respondent filed a motion to dismiss Appellant’s Amended Petition. Respondent argued even if all the facts alleged in Appellant’s Amended Petition were true, the Amended Petition failed to state a claim upon which the relief sought could be granted. On that same day, Respondent also filed a motion asking for a hearing on her motion to dismiss and requested the court defer ruling on Appellant’s motion to appoint a guardian ad litem until after such hearing was held, as a ruling in favor of Respondent would obviate the need for a guardian ad litem’s appointment. The motion court granted both requests, and the motion to dismiss Appellant’s Amended Petition was set for hearing.

The hearing was held on January 19, 2018. At the hearing, no argument was presented from Appellant or Respondent regarding the merits of Respondent’s motion to dismiss the Amended Petition. Rather, the parties themselves testified before the motion court about the many factual disputes in the underlying claim. Respondent testified, in so many words, that the facts averred in the Amended Petition were inaccurate and mischaracterized the relationship between Appellant, E.K., and herself. Both parties submitted several exhibits to the motion court, including a number of affidavits submitted by Respondent from E.K.’s teachers and physician, and several photographs, a Father’s Day card, and a text message submitted by Appellant.

After hearing evidence from the parties, the motion court took the matter under submission. On January 24, 2018, the motion court entered a one-sentence judgment granting Respondent’s motion to dismiss Appellant’s Amended Petition. This appeal follows.

Points Relied On

Appellant asserts two points on appeal. In his first point, Appellant claims the trial court erred in granting the motion to dismiss the Amended Petition because the facts alleged in the petition were sufficient to state a claim for third-party custody under Section 452.375.5. Appellant’s second point claims the motion court misapplied Section 452.375.5 when it failed to enter judgment in favor of Appellant. Because resolution of Appellant’s first point is dispositive of this appeal, we do not reach Appellant’s second point.

Discussion

Appellate review of a trial court’s order to grant a motion to dismiss is de novo. Fenlon v. Union Elec. Co., 266 S.W.3d 852, 854 (Mo. App. E.D. 2008). A motion to dismiss for failure to state a claim tests only the adequacy of the petitioner’s claim. Id. In doing so, all facts alleged in the petition are assumed to be true, and any resulting inferences are liberally construed in favor of the petitioner. Bosch v. St. Louis Healthcare Network, 41 S.W.3d 462, 463 (Mo. banc 2001) (quoting Nazeri v. Missouri Valley College, 860 S.W.2d 303, 306 (Mo. banc 1993) ). The function of the petition is to "invoke substantive principles of law entitling [petitioner] to relief and ... ultimate facts informing the [respondent] of that which [petitioner] will attempt to establish at trial." State ex rel. Henley v. Bickel, 285 S.W.3d 327, 329 (Mo. banc 2009) (citation omitted). It is not the function of this Court, or the motion court, to determine on the merits whether the petitioner is entitled to relief. Fenlon, 266 S.W.3d at 854.

Section 452.375.5 authorizes a cause of action for individuals seeking third-party rights to custody or visitation of a minor child. K.M.M. v. K.E.W., 539 S.W.3d 722, 735-36 (Mo. App. E.D. 2017) (citing In re T.Q.L., 386 S.W.3d 135, 140 (Mo. banc 2012) ). This action is not intended to be an avenue to custody or visitation rights available to "any third party that comes along." Id. at 617 (quoting McGaw v. McGaw, 468 S.W.3d 435, 447 (Mo. App. W.D. 2015) ). Rather, Section 452.375.5 has been consistently held to apply to individuals who have, for a substantial period and to a substantial degree, fulfilled the role of a primary parent to a child, most especially when they have done so at the behest of that child’s natural parent. See McGaw, 468 S.W.3d at 447-48 ; Flathers v. Flathers, 948 S.W.2d 463, 471-72 (Mo. App. W.D. 1997) ; T.Q.L., 386 S.W.3d at 140 ; Bowers v. Bowers, 543 S.W.3d 608, 616 (Mo. banc 2018) ; K.M.M., 539 S.W.3d at 736-37. In other words, Section 452.375.5 does not provide a means by which any and all relatives and caretakers of a minor child may seek custody or visitation, but rather a means by which individuals with a "significant bond[ed] familial custodial relationship" not otherwise recognized by law may seek a right to meaningful contact with the child. K.M.M, 539 S.W.3d at 738 ; see also Hanson v. Carroll, 527 S.W.3d 849, 854 (Mo. banc 2017) (legislature intended Section 452.375.5(5)(a) as "alternative consideration to parental custody").

In evaluating a claim under Section 452.375.5, a court must begin with the presumption the natural parent or parents are fit and suitable to make decisions consistent with the child’s welfare and best interests, including decisions about with whom the child should have contact. Flathers, 948 S.W.2d at 466. In order to rebut this presumption, the petitioner has the burden of demonstrating the parent or parents against whom the action is brought are unfit, unsuitable, or unable to be a custodian or the welfare of the child requires custody or visitation rights vest with the petitioner. K.M.M., 539 S.W.3d at 736. Only after a petitioner has rebutted the parental presumption under either the "fitness" or "welfare" prong does the court examine whether an award of third-party custody or visitation is in the child’s best interests, and whether the petitioner can provide a suitable and stable environment for the child. Id.

Appellant argues his petition satisfies the requirements of both the "fitness" and "welfare" prongs...