Barry v. Barrale, WD
| Citation | 598 S.W.2d 574 |
| Decision Date | 07 April 1980 |
| Docket Number | No. WD,WD |
| Parties | Paul BARRY and Margaret Barry, Respondents, v. Ann BARRALE, Appellant. 30757. |
| Court | Court of Appeal of Missouri (US) |
Alex Bartlett, Jefferson City, for appellant.
Thomas P. Rose, Jefferson City, for respondents.
Before CLARK, P. J., and DIXON and SOMERVILLE, JJ.
Respondents Paul and Margaret Barry brought this action before the juvenile division to obtain a decree establishing scheduled visitation with their grandchildren. Ann Barrale, the children's mother, appeals the judgment which granted visitation and temporary custody to the grandparents.
The unfortunate events culminating in this litigation followed the death of respondents' son James in an automobile accident in 1977. James left surviving him in addition to respondents, appellant, his former wife, and two children, a son born in 1968 and a daughter born in 1971. Prior to James' death, he and Ann had encountered marital problems leading to a dissolution of their marriage in 1976 and an award of custody of the children to the mother. This estrangement of James and Ann apparently did not adversely affect regular visits between respondents and their grandchildren. After James' death, however, the relationship between Ann and the Barrys deteriorated with the eventual severance of all contact and a prohibition by Ann of any visits between the Barrys and the two children.
Assistance by counsel for the parties directed toward resolution of the problem was enlisted but efforts resulted only in meetings which were enforced and hostile. The gulf between Ann, now remarried, and the Barrys continued to widen with predictable disruption of the children's attitudes toward and communication with their The foregoing statement of facts omits the details of charges and recriminations exchanged by the parties reflected in more than one hundred fifty pages of transcript. Because the disposition of the case does not depend on assessment of fault for the family enmity now fully matured, we eschew recitation of those details. To the extent, however, that these facts bear on the welfare of the children, they will be noted subsequently.
grandparents. In this setting, respondents charged by the subject action that Ann had unreasonably caused estrangement between them and the children and they sought access to their grandchildren by court order.
Appellant first charges that the trial court erred in failing to sustain a motion to dismiss the petition because the statute on which plaintiffs relied to maintain their cause of action, § 452.400, RSMo 1978, 1 does not authorize orders for grandparent visitation except as incident to a decree for dissolution of marriage. In support of this contention appellant notes that the petition as filed expressly adopted § 452.400 as the authority upon which the suit was based, whereas § 452.402 is actually the appropriate reference where grandparent visitation is sought after the death of one parent of a child.
For the limited purpose of addressing this first question, appellant assumes and we also adopt the premise that § 452.400 controls grandparent visitation where both parents are alive and separated by dissolution of the marriage, and that § 452.402 is applicable where one parent is deceased irrespective of the prior marital status. Consideration of this point requires review of the statutes in question and their legislative origin.
Prior to the session of the 79th General Assembly of Missouri, § 452.400, RSMo Supp.1975 contained two paragraphs not material to this action and providing for parental visitation rights after dissolution of a marriage. There was no § 452.402. At that legislative session, Senate Bill No. 430 was enacted and read as follows:
"AN ACT to repeal section 452.400 RSMo. Supp.1975, relating to the granting of certain visitation rights, and to enact in lieu thereof two new sections relating to the same subject.
452.400. Visitation rights modification of, when visitation rights to grandparents, authorized.
Be it enacted by the General Assembly of the State of Missouri, as follows:
Section 1. Enacting clause. Section 452.400, RSMo. Supp.1975 is repealed and two new sections enacted in lieu thereof, to be known as Section 452.400 and Section 2. to read as follows.
452.400. Visitation rights modification of, when visitation rights to grandparents, authorized. 1. 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 emotional development.
2. 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 emotional development.
Section 2. Grandparent's visitation rights when one parent deceased how adjudicated, procedure. Whenever one parent of a child is deceased and the surviving parent denies reasonable visitation rights to a maternal or paternal grandparent of the child, the grandparent may petition the juvenile court of the county where the child resides to inquire into the refusal of the surviving parent to allow reasonable visitation. The court shall take jurisdiction over the child and hold a hearing under the same procedure as a hearing under Chapter 211, RSMo., to determine if the visitation by the grandparent would be in the child's best interests or if it would endanger the child's physical health or impair his emotional development. At the conclusion of the hearing, the juvenile court may grant or deny reasonable visitation rights to the grandparent and issue any necessary orders to enforce the decree.
Approved June 1, 1977."
The effective date of the enactments contained in Senate Bill No. 430 above was September 28, 1977, being ninety days after adjournment of the session on June 30, 1977. S. B. No. 430 was first officially published in the session acts, Laws of Missouri, Seventy-Ninth General Assembly, on March 1, 1978, under attestation by the Secretary of State and repeated the content as shown above in the original enactment. The Revisor of Statutes, however, concluded that the portion of S. B. No. 430 designated "Section 2" was not appropriately included in § 452.400 but should be separately designated by a new section, 452.402. The result of this change thereafter appeared in the Missouri Revised Statutes, Supplement 1977, first distributed June 29, 1978, some thirty days after the subject action was commenced. Of course, this change also appeared in the 1978 general revision of the statutes published long after the origin of the present case.
Respondents' petition plainly referred to S. B. No. 430 and its revision of § 452.400, RSMo Supp.1975, as the source of the entitlement to the relief prayed. While respondents would have been informed as to the addition of the new section number by reference to the 1978 pocket part of V.A.M.S., the published session acts, an equally authoritative source, contained no such reference and in the limited time interval here prior to the publication of the regular statute supplement, respondents cannot be faulted for relying on the legislative form of the enactment.
The factual allegations of respondents' petition included all the details necessary to bring them within the subject matter of the statute regulating visitation rights of grandparents unreasonably denied access by a surviving parent. Indeed, the petition repeated some of the language which appears in the statute. Even had the petition included no citation of a statute at all, it would prevail against a motion to dismiss if the averments of the petition invoked substantive principles of law entitling the petitioner to relief. The pleader is not obligated to cite or refer to a statute or to use the terms of the statute literally. Williamson's Estate v. Williamson, 380 S.W.2d 333, 338 (Mo.1964); Peer v. MFA Milling Co., 578 S.W.2d 291, 295 (Mo.App.1979).
Moreover, it is plain that appellant was not misled by any discrepancy in the statute numbers. In her answer, appellant pleaded various affirmative defenses particularly addressed to a cause of action under § 452.402. The record of the trial proper indicates recognition that the issues were those appropriate to the situation of grandparent visitation when one natural parent is deceased. The trial court correctly overruled appellant's motion to dismiss respondents' cause of action.
Next, appellant contends that the juvenile division of the court had no jurisdiction over the children of appellant because none of the conditions specified in § 211.031 for exclusive original jurisdiction was present. Citing In the Interest of M.K.R., 515 S.W.2d 467 (Mo.banc 1974), for the proposition that the juvenile court is a court of limited jurisdiction with only those powers expressly conferred by the juvenile code, she argues that the juvenile court may only intervene in matters of grandparent visitation with children who are already under the jurisdiction of the juvenile court by reason of neglect delinquency or adoption. Appellant's position as to this point is, alternatively, that § 452.402 is inoperative to confer jurisdiction on the juvenile court as to a cause of action for grandparent visitation because this section of the statute was not designated as part of the "Juvenile Code" or, that...
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Blakely v. Blakely
...For instance, Missouri courts have construed the statute narrowly to disallow orders in the nature of "custody," Barry v. Barrale, 598 S.W.2d 574, 581 (Mo.App. W.D.1980), to exclude persons other than the parents of a child's father or mother from the scope of the statute, such as step-gran......
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Smith v. Jones
...all encompassing general parens patriae role in parenting (cf., Lehrer v. Davis, 214 Conn. 232, 571 A.2d 691 (1990); Barry v. Barrale, 598 S.W.2d 574 (Missouri, 1980), DeWeese v. Crawford, 520 S.W.2d 522 (Texas, 1975)). Such role though permitted is limited. Clearly, it is in the best inter......
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J.P. v. P.W.
...Apparently, anything less than physical custody for an appreciable period of time may be regarded as "visitation". See Barry v. Barrale, 598 S.W.2d 574 (Mo.App.1980). This meaning is emphasized by § 452.400.1 which says that a parent not granted custody is entitled to reasonable visitation ......
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