Bather v. Bather

• Decision Date: 20 September 2005
• Docket Number: No. WD 64138.,WD 64138.
• Citation: 170 S.W.3d 487
• Parties: Holly A. BATHER, Respondent, v. William J. BATHER, Appellant.
• Court: Missouri Court of Appeals

Page 487

170 S.W.3d 487

Holly A. BATHER, Respondent, v. William J. BATHER, Appellant.

No. WD 64138.

Missouri Court of Appeals, Western District.

June 21, 2005.

Motion for Rehearing and/or Transfer to Supreme Court Denied August 2, 2005.

Application for Transfer Denied September 20, 2005.

J. Michael Murphy, Liberty, MO, for appellant.

Steven D. Wolcott, Liberty, MO, for respondent.

Before HOLLIGER, P.J., BRECKENRIDGE and ELLIS, JJ.

PATRICIA BRECKENRIDGE, Judge.

William J. Bather (Father) appeals the trial court's judgment modifying, on the motion of his former wife, Holly A. Bather, now Logan (Mother), physical custody parenting time of their daughter. Father claims that there was insufficient evidence of a change in circumstances that would authorize modification of custody under section 452.410, RSMo 2000.¹ He further claims that there was insufficient evidence to permit restricting his visitation under section 452.400.2, and that the court erred in failing to make the findings he requested on the issue of restricting his visitation.

This court finds that, because the custodial arrangement in the judgment modified was designated as joint physical custody, the modification of the parenting time provisions was a modification of custody, governed by section 452.410. This court further finds that there was sufficient evidence that the modification of the parenting plan to establish a graduated schedule from short periods of supervised visitation to longer periods of unsupervised parenting time would serve the child's best interests. There was insufficient evidence, however, that the modification of the schedule for parenting time in paragraph 1, subparagraphs (f) and (g), permitting Father to have unsupervised parenting time only on alternating weekends and holidays, would serve the child's best interests. Therefore, the trial court erred in a portion of its modification of the physical custody parenting time provisions. The judgment is reversed, and the cause is remanded to the trial court with directions to modify the parenting plan to eliminate the provisions for unsupervised alternating weekends and holidays in paragraph 1, subparagraphs (f) and (g) and to, instead, substitute the physical custody parenting time provisions for unsupervised parenting time as ordered in the February 2001 modification judgment, which alternated weeks between parents. In addition, given the interrelatedness of child custody and child support, the trial court is directed to reconsider the issue of child support on remand. Father's remaining points on appeal are without merit and, therefore, are denied.

Factual and Procedural Background

Father and Mother were married on March 8, 1991. Their daughter, Lauren Elizabeth Bather, was born on June 15, 1995. Father and Mother separated in February 1996, and their marriage was dissolved on December 30, 1997. The dissolution judgment provided that Father and Mother share joint legal and physical custody of Lauren. Mother was to have parenting time with Lauren each weekend from 8:30 A.M. Saturday until the following Monday at 5:30 P.M., and Father was to have parenting time at all other times. Additionally, Father had the right to select up to thirteen non-consecutive weekends per year when Lauren would remain with him through Saturday. On those weekends that Lauren would remain with Father, Lauren was to return to Mother at 8:30 A.M. Sunday and stay with Mother until 8:30 A.M. the following Tuesday. The judgment also set out a parenting time schedule for the holidays. Because the parties equally divided their parenting time, no child support was ordered.

Mother married David Logan in November 1998. Subsequently, on February 6, 2001, the trial court entered a judgment modifying the physical custody parenting time provisions to implement an agreement reached by Mother and Father. Under the agreement, Mother and Father alternated weeks with Lauren, beginning at 5:30 P.M. each Sunday. During the weeks that Lauren was with Father, Mother had parenting time on Thursday evenings from 3:30 P.M. to 8:00 P.M. During weeks that Lauren was with Mother, Father also had this same two and one-half hour parenting time on Thursday evenings.

The parties abided by this parenting time schedule until June 2002, when Mother claimed that Lauren disclosed that Father had sexually abused her. Mother called the Division of Family Services Abuse Hot Line and the Liberty Police Department. Two days later, Mother e-mailed Father and told him that Lauren had reported being sexually abused in his home and that, on the advice of DFS and the Liberty Police Department, Mother was not going to allow Father, or anyone acting on his behalf, to have contact with Lauren.

Mother took Lauren to Children's Mercy Hospital to have her examined. The examination revealed no physical evidence to confirm sexual abuse. Nevertheless, the Clay County Prosecuting Attorney filed criminal charges against Father based upon the allegations of sexual abuse.² As a special condition of his bond, Father was not allowed any contact with Lauren while the criminal charges were pending.

On August 29, 2002, Mother filed a motion to modify joint legal and physical custody. In her motion, Mother alleged that, on June 7, 2002, a referral was made to DFS alleging that Father had sexually abused Lauren, and an investigation was occurring between the police department, the prosecuting attorney's office and others, including a determination by DFS "of a reason to suspect." Mother further alleged that the Clay County grand jury had issued an indictment charging Father with multiple felony counts, and a condition of Father's bond was that he have no contact with Lauren at the present time. Mother asked the court to modify the February 2001 judgment by ordering that Father have no parenting time with Lauren. Mother also asked for the appointment of a guardian ad litem.

Some of the criminal charges against Father were dismissed before the trial, and Father was acquitted of the remaining criminal charges in March 2003. In July 2003, Father filed a motion to modify custody. In his motion, he alleged that, since the February 2001 judgment, facts had arisen constituting a change of circumstances. Specifically, he alleged that Mother had "influenced said child into making false statements that [Father] improperly touched and abused his child"; Mother had "herself improperly touched and abused the parties' child"; Mother had "willfully deprived [Father] of his court-ordered custody and visitation and custody [sic]"; and "[t]he child's best interests, happiness, and welfare dictate and mandate that the primary custody of said child be granted to [Father], with reasonable visitation being granted to [Mother]." Father asked that custody be modified to grant him the majority of parenting time with Lauren, with Mother having parenting time on every other weekend, alternating holidays, and two weeks in the summer.

One week after filing his motion to modify, Father filed a motion asking that Mother be held in contempt. In this motion, Father alleged that he had not been able to see Lauren since June 9, 2002. He further alleged that, despite his having been acquitted of the criminal charges, Mother still refused to let the child see Father "to even begin `break in' visitation periods." According to Father, he made "numerous attempts to work out these visitation periods with [Mother], but [he was] still unreasonably, willfully, and without good cause being denied any visitation with his daughter, despite this court's order."

The court held a hearing on Father's motion for contempt. On August 28, 2003, the court entered a temporary order requiring Mother and Father to participate in the Transitions Program. The court ordered Mother to deliver Lauren to the Transitions Program facility so that Father could have a series of eight visits with the child. The court also ordered Mother to produce Lauren for one ninety-minute visit with Father and the guardian ad litem. The trial court took the motion for contempt under advisement. In a separate order, the court ordered Mother, Father, Lauren, Lauren's paternal grandmother, and Lauren's stepfather to submit to psychological evaluations. In December 2003, Father filed a family access motion, and noticed the motion for hearing on December 10, 2003.³ The court declined to take up the motion at that time and set all motions for trial on February 25, 2004.

Trial was held on the parties' motions to modify on February 25 and March 8-10, 2004. Father testified that the only way to ensure Lauren did not make false allegations in the future was to have 24-hour supervised visitation whenever she was with either party. Rosalyn E. Inniss, M.D., the psychiatrist the court appointed to evaluate the parties, also recommended supervised visitation as a measure of protection for all parties. On April 6, 2004, the court entered its judgment of modification. In the judgment, the court found that a substantial and continuing change of circumstances had occurred that rendered the prior physical custody order unreasonable. Specifically, the court stated:

Said change of circumstances includes the following:

a. Insufficient evidence was presented to the Court to support [Mother]'s allegation of abuse of the minor child by [Father];

b. Despite insufficient evidence to support said allegation, [Mother] is convinced that [Father] abused the minor child;

c. The minor child likewise appears to believe that said abuse occurred.

The court further stated that, "[a]s the result of the beliefs of [Mother] and the minor child, it is in the best interest of the minor child that both parties continue to have joint legal and joint physical custody of the minor child with changes in the physical custody arrangement."

The court's modified parenting plan provides that Mother has "primary physical custody" of Lauren.⁴ The plan then set forth a...