Adams v. Adams

• Decision Date: 18 July 1991
• Docket Number: No. 17124,17124
• Citation: 812 S.W.2d 951
• Parties: Ingrid M. ADAMS (now Dillon), Respondent, v. William S. ADAMS, Appellant.
• Court: Missouri Court of Appeals

Page 951

812 S.W.2d 951

Ingrid M. ADAMS (now Dillon), Respondent, v. William S. ADAMS, Appellant.

No. 17124.

Missouri Court of Appeals,

Southern District,

Division One.

July 18, 1991.

Lawrence E. Ray, St. Robert, for respondent.

James L. Thomas, James L. Thomas & Associates, Waynesville, for appellant.

MAUS, Presiding Judge.

A decree of dissolution awarded the primary care and custody of two children to appellant William S. Adams, their father. The respondent, Ingrid M. Adams (now Dillon) their mother, was granted reasonable visitation. The appellant, a Chief Warrant Officer, received an order assigning him to a tour of duty in Germany. He filed a motion to modify including permission to take the children with him to Germany. The respondent filed a motion seeking custody of the two children. The trial court denied the appellant's motion. It modified the previous decree and awarded primary custody to the mother and granted the father weekend and designated holiday visitation and temporary custody for 60 days each summer. The father appeals.

An outline of the historical background of the case and the record before this Court is necessary to demonstrate why the judgment must be reversed and the case remanded. The parties separated May 27, 1988. The decree of dissolution was entered on June 29, 1988, upon the petition of the mother. At that time she lived in Crocker, Missouri, and worked at McDonald's in St. Robert. The father was a Chief Warrant Officer stationed at Ft. Leonard Wood. He lived at that post. Their son, David Stephen Adams, born April 26, 1978, and their daughter, Jennifer Jean Adams, born September 10, 1980, lived with their father.

The mother was unable to be personally present at the hearing upon the petition, but appeared by counsel. She was in Germany as the result of a death in her family. The father appeared pro se. He was called as a witness by the mother's counsel. His testimony established the basis for the decree of dissolution. His testimony, elicited by the mother's lawyer (not present counsel), included the following questions and answers.

"Q. And you and your wife have agreed to everything that we're doing today; is that correct?

A. Yes, sir, we have."

* * * * * *

"Q. And are you requesting that the primary care and custody of the minor children be awarded to yourself?

A. That is correct.

Q. And you've talked this over with your wife and she's agreeable to that; is that correct?

A. Yes, she is.

Q. And are you requesting that this Court grant reasonable visitation privileges to see and visit with the minor children and to have the minor children see and visit her on any and all reasonable occasions as long as she gives you reasonable notice; is that correct?

A. That's correct."

* * * * * *

"Q. Basically, are you asking the Court to allow you to remove the children from this state and go to another post or go overseas--

A. Basically.

Q. --without having to come back into court? Now, you've talked this over with your wife, and she's agreed to this; is that correct?

A. That is correct.

Q. And it's your understanding she's talked to me and that's agreeable also; is that correct?

A. Yes, sir."

As stated, the decree of dissolution awarded the primary care and custody of the children to the father and granted reasonable visitation to the mother. The decree also contained the following provision.

"4. That both parties are allowed to remove the minor children from the State of Missouri and/or the United States of America without further permission or order of this Court."

As a result of a subsequent modification, the efficacy of this provision, in the light of §§ 452.377 and 452.411, need not be considered.

The mother's first motion to modify and father's cross-motion to modify were heard on July 26, 1989. Those motions are not a part of the record. On September 25, 1989, the court entered a judgment disposing of those motions. That judgment of modification provided the father should continue to have primary custody of the children. It awarded the mother specific visitation on the first and third weekends and designated holidays and granted her temporary custody for 30 days beginning each July 1. The judgment of modification also contained the following provision.

"2. Defendant [father] is not permitted to remove the children from the State of Missouri for a period exceeding ninety days pursuant to Section 452.377 RSMo (1986);".

On September 27, 1989, the father filed a motion to modify the decree entered two days earlier. That motion alleged the father had, on September 25, 1989, been ordered to report on January 10, 1990, for a tour of duty in Germany. The father prayed that he be allowed to remove the minor children from Missouri and that mother be granted temporary custody for 45 days in the summer and for the Christmas holiday, with the parties to divide the cost of transportation.

The mother, on November 30, 1989, filed a cross-motion to modify. As the basis for modification, she alleged:

"10. That since the time of said original decree and for [sic] Judgment of Modification a substantial and continuing change in circumstances has developed requiring that a modification be made in that Defendant has received a military assignment to West Germany and intends to frustrate the custody, visitation rights and parental contact of the children and Plaintiff."

The mother prayed for custody of the children and child support, with the father to have temporary custody for 30 days each summer and six days at each Christmas, the father to pay travel expenses. Those motions were heard on December 18, 1989. The trial court took the matter under advisement until the next morning.

The children briefly testified on the record on December 18, 1989. Prior to their appearance, counsel for the mother said:

"Your Honor, we join in asking that you interview the children. However, I want--might want to ask them some questions, also."

The court responded:

"I'm not going to let you. You can form a list. We'll take about a five-minute recess, and you can write down any questions you want to request me to ask, but that doesn't mean I'm going to ask them."

The court subsequently said:

"Well, the last time we had a hearing on this matter, which I think was in July of 1989, both of the children talked to me separately and together; and I think they're both extremely articulate...."

The children then briefly testified by responding to questions by the court concerning their preference. They expressed love for both parents. David's testimony included the following:

"Q. Now, what do you want to do?

A. Well, I'm going to have to stay with one or another. So--Well, I'll try to get the easiest way. So--well--

Q. That's a hard decision, isn't it?

A. Yes.

Q. Because you love them both; don't you?

A. Uh-huh."

Jennifer's testimony included the following:

"Q. ... What are your feelings about going to Germany?

A. Well, I would enjoy going to Germany.

Q. You would? Is that your preference? Would you rather go to Germany?

A. Yeah--In a way, yes."

The mother's testimony included the following:

"Q. Did the children ever tell you that they wanted to stay with their father?

A. They have at times."

The trial court on the morning of December 19, 1989, again talked with the children. There is no record of that conversation. In an extensive dialogue with the parties and counsel, the trial court announced:

* * * * * *

"I am going to give temporary custody of both children to the natural mother until June of 1990. I've discussed this with the children in the presence of their attorneys. This is going to be a temporary order. Mr. Adams will have visitation rights in the summertime after school is out. Then I'm going to set a hearing when he can make it back to pick up the children for visitation rights. I'm going to let you present any evidence you may, but I want to see and hear and talk to the children again."

* * * * * *

Subsequently, in the dialogue, the court explained:

"The kids--I'll tell you what they told me in chambers. And I'll tell Mr. and Mrs. Adams, and we shouldn't do that. The lawyers shouldn't even tell you. They want to go with you, Mr. Adams; they want to stay with their mother. They're flighty, see? And I--And this is my suggestion that they have not had a period of time to be with the mother as an actual parent. It's just been visitation. And they reluctantly agreed--and I say this reluctantly--that they would give my plan an opportunity to work."

The trial court thereupon signed a handwritten "Memorandum of Judgment of Modification" containing temporary orders. Those "temporary orders" awarded primary physical custody of the two children to the mother and awarded her child support of $200 per month per child. The temporary orders concluded with the following. "The Court shall reconvene court and hear evidence in June, 1990."

The father then filed a Petition for a Writ of Prohibition in this Court attacking the temporary orders. He asserted, among other things, the temporary orders were invalid because there was no motion for a temporary order and such temporary orders prevented an appellate review. He prayed that those orders and the judgment of September 25, 1989, be vacated. The petition was denied.

The father had also filed a notice of appeal to this Court. The mother filed a motion to dismiss that appeal because the temporary orders were not a final judgment ¹. That appeal was dismissed when the father did not file the record.

The father has attached a copy of the temporary orders, as well as the judgment of July 31, 1990, to his notice of appeal. It is by this Court determined that the temporary orders have expired by their own terms. However, nothing in this opinion should be construed as approving such orders. Section 452.380.1 provides:

"A party to a custody proceeding may move for a temporary custody order. The motion must be supported by an...