Baumgart v. Baumgart, WD
Decision Date | 22 April 1997 |
Docket Number | No. WD,WD |
Citation | 944 S.W.2d 572 |
Parties | Rohn A. BAUMGART, Respondent, v. Michelle A. BAUMGART, Appellant. 52566. |
Court | Missouri Court of Appeals |
Thomas E. Loraine, Roger M. Gibbons, Osage Beach, for appellant.
Lewis Z. Bridges, Lake Ozark, for respondent.
Before HANNA, P.J., and ELLIS and LAURA DENVIR STITH, JJ.
Michelle A. Baumgart filed a motion to modify her dissolution decree. She asked that primary physical custody of her two daughters be awarded to her because of alleged abuse of one of the children by her ex-husband, Respondent Rohn A. Baumgart. The trial court gave her temporary custody of the children after a hearing at which some evidence of child abuse was presented, and Mr. Baumgart was granted only supervised visitation. Two and one-half years later, however, the trial court ruled that a substantial and continuing change of circumstances had occurred, but then left custody in Mr. Baumgart. His order did not explain the basis of his ruling.
Mrs. Baumgart appeals. In her first point, she alleges that, although she brought the motion to modify, once she was granted temporary custody of the children pending ruling on her motion, then the burden of proof shifted to her husband and it is now he, not she, who must prove a substantial and continuing change of circumstances in order to win back custody of the children. We disagree. A temporary order is just that, temporary; it does not change the underlying burden of proof on the motion to modify. We do find, however, that the fact that Mrs. Baumgart has had actual custody since November 1992 does constitute a change of circumstances which, in an appropriate case, could justify a modification of the formal custody award.
The only other evidence of a change of circumstances offered below was evidence offered by Mrs. Baumgart in support of her claim of child abuse. While this evidence did not mandate a finding that child abuse had occurred, if believed it also would have supported a modification of custody. Yet, while the court found a change of circumstances, it ordered custody to remain with Mr. Baumgart. Moreover, it did so after a lengthy delay of more than two and one-half years after it had heard evidence and did so even though the record indicates that the court did not believe that the record made at the hearing on the abuse issue was adequate to permit a final decision.
It is to protect the child even when the parties do not adequately present such evidence that Section 452.423 requires the appointment of a guardian ad litem to investigate such allegations and to assist the court. The court has an obligation to ensure that the guardian performs his duties.
Here, while a guardian was appointed, the record does not reveal that he undertook any investigation or otherwise performed his duties. As a result, the record below was inadequate and does not support the court's determination that there was a substantial and continuing change in circumstances but that custody should be in Mr. Baumgart. Accordingly, we reverse and remand for appointment of a new guardian ad litem who shall immediately conduct all necessary investigation, after which a new hearing shall be held at which issues relating to child abuse and custody shall be resolved and custody awarded in the best interests of the children. 1
Rohn A. Baumgart and Michelle A. Baumgart were married and had two children, Kristina Marie Baumgart and Amber Michelle Baumgart. The couple separated in May 1992, when the children were two years old and seven months old, respectively, and Mr. Baumgart moved to Indiana with the children. He filed a Petition for Dissolution of Marriage, and on September 11, 1992, the circuit court of Miller County, Missouri, entered a dissolution decree. In that decree Judge Gary Schmidt granted the couple joint legal custody of their children, with primary physical custody being given to Mr. Baumgart. He was allowed to remove the children to Indiana, and Mrs. Baumgart was allowed visitation. The judge also ordered Mrs. Baumgart to pay $100 per month in child support.
In October 1992, one month after the decree was entered, the circuit court of Gibson County, Indiana, placed Kristina and Amber in emergency wardship while it investigated allegations of sexual abuse of Kristina by Mr. Baumgart. Although it is unclear how the Gibson County Division of Family and Children investigation arose, it is clear that the Indiana court ordered that the children be placed with their paternal grandmother, and that Mrs. Baumgart be allowed unlimited visitation. On November 24, 1992, the court continued the temporary wardship of the children, but ordered that the children be placed with Mrs. Baumgart until a review hearing. At that time, Mrs. Baumgart, now remarried, brought the children back to Missouri.
On January 8, 1993, Mrs. Baumgart filed a motion in Missouri to modify the dissolution decree as to child custody. She sought physical custody of the children, alleging abuse by Mr. Baumgart. Three days later, on January 11, 1993, the circuit court of Gibson County, Indiana, dismissed its investigation of child abuse. The record does not reveal why the investigation was officially dismissed. Mr. Baumgart says it was because the allegations were untrue. Mrs. Baumgart says it was because she now had actual custody of the children and had filed a motion for permanent custody. In any event, it is uncontested that despite the dismissal of the Indiana action, the children remained in Mrs. Baumgart's custody in Missouri, at least part of the time over the objections of Mr. Baumgart.
The circuit court of Miller County, Missouri, held a hearing on Mrs. Baumgart's motion to modify on October 8, 1993, nine months after it had been filed. The record reveals that a guardian ad litem had been appointed by that date and appeared in person at the hearing. During the hearing, Blanche Carter, Mrs. Baumgart's mother testified that on one occasion when she was changing Mrs. Baumgart's infant son's diaper, Kristina, then age two or three, had asked if she could kiss the infant's genitals. Mrs. Baumgart also called Dr. Patrick Brophy, the psychologist who interviewed Kristina Baumgart at the request of the Gibson County, Indiana, Division of Family and Children. Dr. Brophy testified that Kristina indicated that she had been inappropriately touched and had touched her "father's" "pee-pee bob." He testified that after talking with Kristina, who was then approximately three years old, it was his professional opinion that she had been sexually molested by her father. Dr. Brophy recommended that Kristina be placed in a neutral foster home.
On cross-examination, Dr. Brophy admitted that he only spoke with Kristina for 45 minutes, and did not talk to Mr. Baumgart at all. Dr. Brophy further testified that he did not know Kristina had been staying with her mother for a few days shortly prior to the allegations of sexual abuse, and he did not know that Mrs. Baumgart had remarried or whether Kristina called Mrs. Baumgart's new husband "father." The guardian ad litem asked a few additional general questions of Dr. Brophy, but did not examine any other witnesses or offer any witnesses, exhibits, reports, suggestions, recommendations, or comments of any kind to the judge.
At the conclusion of the hearing, Judge Schmidt granted Mr. Baumgart's motion to dismiss the Petition, apparently because of failure to adequately allege certain matters as required by Section 452.480, but gave Mrs. Baumgart 30 days to amend her Petition.
The judge also indicated he wanted copies of the Indiana proceedings and additional testimony from other witnesses because of the incompleteness of the information about the Indiana allegations. He continued the matter for further hearing once those documents were available. The judge also stated that he was going to continue the original decree of joint legal custody, but that Mrs. Baumgart would be given temporary physical custody and Mr. Baumgart would be allowed only supervised visitation pending resolution of the abuse allegations. It is evident from the transcript that the judge had not yet made a final determination as to whether he believed abuse had in fact occurred or if so, who had committed the abuse.
Mrs. Baumgart filed first and second amended motions to modify the dissolution decree to which she attached certain documents from the Indiana action showing the history of the proceedings in that state. No new hearing was held for over 18 months, however. Finally, on April 28, 1995, a new hearing was scheduled. The only further evidence offered by either party was evidence of legal fees incurred by Mrs. Baumgart. In addition, Mrs. Baumgart offered to produce a custodian's affidavit for the Indiana records, but the court said it would not be necessary to do so. The records confirmed that allegations of abuse had been brought and the children removed from the father's care and placed in the mother's custody, and that the proceeding had been dismissed. No reason for dismissal was identified in the records. The guardian ad litem again presented no evidence, recommendations, or report, nor so far as the record shows had the guardian investigated the children's situation. To the contrary, it appears from a comment made by the guardian at the hearing that he was unaware of the children's current situation.
Judge Schmidt indicated at the April 1995 hearing that he would rule based on the evidence presented. He did not do so for over nine months, however. Finally, on February 16, 1996, Judge Schmidt entered a decree and judgment of modification. In that decree he stated that there was a substantial and continuing change of circumstances which made the original decree unreasonable and required him to alter the original custody order, although he does not identify what he...
To continue reading
Request your trial-
Francka v. Francka
...No showing of a change of circumstances is required. D.K.L. v. L.C.L., 764 S.W.2d 664, 666 (Mo.App.1988). See also Baumgart v. Baumgart, 944 S.W.2d 572, 576 (Mo.App.1997). GAL Point II is without Husband's remaining complaint in Point I is directed to the guardian ad litem's recommendation ......
-
Davis v. Schmidt
...with people having knowledge or contact with the child, and he may interview the child if appropriate." Baumgart v. Baumgart, 944 S.W.2d 572, 578-79 (Mo.App. W.D.1997); see also Section 452.423.3(2), RSMo Cum.Supp.2004. A guardian ad litem's principal allegiance is to the court, and his fun......
-
Erickson v. Blackburn
...have changed as long as the evidence is sufficient to support a finding that such a change has occurred. Baumgart v. Baumgart, 944 S.W.2d 572, 575-76 (Mo.App.1997). Viewed in a light most favorable to the trial court's findings and judgment, there was sufficient evidence to show substantial......
-
Day ex rel. Finnern v. Day
...323, 325 (Mo. banc 1988). It is designed "`to provide temporary relief pending a full hearing on the merits.'" Baumgart v. Baumgart, 944 S.W.2d 572, 576 (Mo.App.1997) (quoting D.K.L. v. L.C.L., 764 S.W.2d 664, 666 (Mo. App.1988)). It "is not itself a full decision on the merits of the custo......
-
Section 12.21 Duties of the Guardian ad Litem
...there are allegations of abuse or neglect, does not allow for the disqualification of the GAL within ten days. In Baumgart v. Baumgart, 944 S.W.2d 572 (Mo. App. W.D. 1997), the appellate court remanded the case for appointment of a new GAL and for a new hearing based on the GAL’s failure to......
-
Section 18.9 Temporary Child Custody
...Id. at 666. The same holds true for a PDL order issued pending a motion to modify a judgment of dissolution. Baumgart v. Baumgart, 944 S.W.2d 572 (Mo. App. W.D. 1997); Francka v. Francka, 951 S.W.2d 685 (Mo. App. S.D. 1997). Although these orders are uncommon, the movant retains the burden ......
-
Section 9.6 Temporary Orders and Child Protection Orders Act
...custody is pending or has been made”; and · “the best interests of the child require such order be issued.” In Baumgart v. Baumgart, 944 S.W.2d 572 (Mo. App. W.D. 1997), the mother requested, under § 455.520, primary physical custody of the children because of alleged abuse of one of the ch......
-
Section 12.16 Burden of Proof
...? Schaffer v. Haynes, 847 S.W.2d 814 (Mo. App. E.D. 1992) ? Guier v. Guier, 918 S.W.2d 940 (Mo. App. W.D. 1996) ? Baumgart v. Baumgart, 944 S.W.2d 572, 573 (Mo. App. W.D. 1997) To modify visitation, the party must only prove that the modification is in the best interest of the child. But, a......