Beckwith v. Giles

• Decision Date: 05 December 2000
• Docket Number: WD58185
• Citation: 32 S.W.3d 659
• Parties: This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Michelle B. (Giles) Beckwith, Respondent, v. Bruce Giles, Appellant. WD58185 Missouri Court of Appeals Western District Handdown Date:
• Court: Missouri Court of Appeals

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court

Michelle B. (Giles) Beckwith, Respondent v Bruce Giles, Appellant

WD58185

Missouri Court of Appeals Western District

Handdown Date: 12/05/2000

Appeal From: Circuit Court of Clay County, Hon. James Edward Welsch

Counsel for Appellant: Party Acting Pro Se

Counsel for Respondent: Andrea Paige Bolstad

Opinion Summary: Bruce Giles appeals from the judgment modifying his divorce decree of Divorce with Michelle B. (Giles) Beckwith. The modification terminated the parties' joint legal custody, awarded Ms. Beckwith sole legal and physical custody of the parties' minor child, restricted Mr. Giles' visitation with the minor child, and increased his child support obligation.

AFFIRMED IN PART; REVERSED IN PART.

Division III holds:

1. Where a motion for change of judge was filed more than sixty days after the date of service and thirty days after the designation of the trial judge, the motion was not filed timely. The trial court is not obligated to sustain a motion for change of judge that was not timely filed. Therefore, the trial court's denial of appellant's motion for change of judge is affirmed.

2. A prisoner's personal attendance in a civil proceeding is not required where the prisoner fails to demonstrate that no reasonable alternative means by which the prisoner could have obtained meaningful access to the court existed. Accordingly, the trial court's denial of appellant's application for a writ of habeas corpus ad testificandum is affirmed.

3. Where no evidence was introduced at the child custody modification hearing regarding the relevant factors in the determination of the best interest of the minor child including those factors enumerated in section 452.375, the trial court had insufficient evidence to decide what custody arrangement would be in the best interest the minor child. The judgment is, therefore, reversed, and the case is remanded to the trial court to hear and consider evidence regarding the best interests of the minor child.

4. Where the trial court denies or restricts the non-custodial parent's visitation privileges, the court, when requested by a party, must make specific findings that the visitation would endanger the child's physical health or impair his emotional development. The portion of the judgment restricting the non-custodial parent's visitation with the minor child is, therefore, reversed, and the case is remanded to the trial court to make the specific findings of fact as requested by the non-custodial parent.

5. Where the trial court increased the non-custodial parent's child support obligation from $300.00 per month to $350.00 per month, in the absence of a motion or pleading before the court stating a claim or making a prayer for such increase, the court's judgment is void to the extent that it grants relief beyond what was requested by the parties in the pleadings. The portion of the judgment modifying the non-custodial parent's child support is, therefore, void, and the case is remanded to the trial court to amend the judgment as it pertains to Mr. Giles child support obligation by changing the amount of monthly payments from $350.00 to $300.00 per month.

Opinion Author: Robert G. Ulrich

Opinion Vote: AFFIRMED IN PART, AND REVERSED IN PART. Smith, P.J., and Ellis, J., concur.

Opinion:

Bruce Giles appeals from the judgment of the Circuit Court of Clay County modifying his Decree of Divorce with Michelle B. (Giles) Beckwith. The judgment of modification terminated the parties' joint legal custody, awarded Ms. Beckwith sole legal and physical custody of the parties' minor child, restricted Mr. Giles' visitation with the minor child, and increased his child support obligation. Mr. Giles contends that the trial court erred in (1) overruling his motion for change of judge; (2) overruling his application for writ of habeas corpus ad testificandum; (3) transferring sole legal and physical custody of the minor child to Ms. Beckwith; (4) restricting his visitation with the minor child; and (5) raising his child support obligation to $350.00 per month. The judgment of the trial court is affirmed in part, and reversed in part.

I. Facts

Upon dissolution of the parties' marriage in 1991, the parties were awarded joint legal custody of their minor child with Ms. Beckwith receiving primary physical custody subject to Mr. Giles rights of reasonable visitation. Sometime after the parties dissolution, Mr. Giles was convicted on two counts of Assault in the second degree and two counts Armed Criminal Action. He was placed in the custody of the Missouri Department of Corrections on or about September 9, 1994.

Ms. Beckwith filed a motion to modify the divorce decree seeking modification of the child's custody and Mr. Giles' visitation rights on January 27, 1999. Following a hearing on the motion, the Commissioner entered its findings and recommendations on June 30, 1999, which were adopted and confirmed by the circuit judge on that same day. Mr. Giles appealed. The appeal was dismissed and the case was remanded to the trial court with directions to set aside the court's judgment and to allow the parties fifteen days to move the trial court for rehearing. Thereafter, Mr. Giles filed a motion for rehearing. The trial court denied Mr. Giles' motion and adopted and confirmed the Commissioner's original findings and recommendations on January 4, 2000. This appeal followed.

II. Standard of Review

As a judge tried case, the standard of review is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), which interprets what is now Rule 73.01(c). Under this standard, this court will affirm and sustain the judgment of the trial court unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Jones v. Jones, 10 S.W.3d 528, 532 (Mo. App. W.D. 1999). Because the trial court is in the best position to weigh all the evidence and render a judgment based on the evidence, the judgment should be affirmed under any reasonable theory supported by the evidence. Id.

III. Points on Appeal

In his first point on appeal, Mr. Giles contends that the trial court erred in overruling his motion for change of judge. Mr. Giles claims he was entitled to a change of judge as a matter of due process. Mr. Giles' motion, however, was filed out of time, therefore, it was proper for the trial court to deny his request.

Rule 51.05(a) requires that "[a] change of judge shall be ordered in any civil action upon the timely filing of a written application therefor by any party." Upon the filing of a proper, timely application under the rule, the court has no jurisdiction to do anything other than to grant the application and transfer the cause to another judge. State ex rel. Cohen v. Riley, 994 S.W.2d 546, 547 (Mo. banc 1999); Rule 51.05(e). But in order to be timely, "[t]he application must be filed within sixty days from service of process or thirty days from the designation of the trial judge, whichever time is longer." Rule 51.05(b).

Mr. Giles' Motion for Change of Judge was not timely filed. Mr. Giles was served on February 16, 1999. The trial judge was designated at the time the summons was served. Since the trial judge was already designated at the time the summons was served, the sixty day time period from the date of service is longer than the thirty day period from the designation of the trial judge. Sixty days from February 16, 1999, falls on April 17, 1999, which is a Saturday. Therefore, Mr. Giles would have had until Monday, April 19, 1999, to timely file an application for a change of judge. Rule 44.01(a).

Mr. Giles' Motion for Change of Judge was filed on May 19, 1999. Since it was not filed by the April 19, 1999 deadline, the motion was not timely filed. Accordingly, the trial court did not err in denying Mr. Giles' Motion for Change of Judge. The point is denied.

In his second point on appeal, Mr. Giles contends that the trial court erred in overruling his application for Writ of Habeas Corpus Ad Testificandum. Mr. Giles was incarcerated with the Department of Corrections. He argues he should have been brought to the Circuit Court of Clay County to defend himself in this matter because the language of the statute created a legitimate expectation that the writ would be issued, thereby creating a constitutional right to appear.

Courts recognize that "absent a countervailing state interest of overriding significance, prisoners must be afforded meaningful access to the courts and an opportunity to be heard." State ex rel. Kitrell v. Carr, 878 S.W.2d 859, 862 (Mo. App. E.D. 1994). But it is also equally well established that a prisoner has no absolute right to appear personally in a civil proceeding. Muza v. Missouri Dept. of Soc. Servs., 769 S.W.2d 168, 176 (Mo. App. W.D. 1989); Carr, 878 S.W.2d at 862. The granting of a writ of habeas corpus ad testificandum to appear in a civil proceeding lies within the discretion of the trial court, which should "require strict proof of the materiality of the testimony and the necessity of the attendance of the prisoner as a witness."¹ Laws v. O'Brien, 718 S.W.2d 615, 618 (Mo. App. E.D. 1986) (quoting Joiner v. State, 621 S.W.2d 336, 339 (Mo. App. E.D. 1981); section 491.230.2(2), RSMo Cum. Supp. 1996.

A key factor in determining whether a prisoner has a constitutional right to appear personally in a civil matter is whether there are any reasonable alternative means by which the prisoner may be heard and thus obtain meaningful access to the court. Carr, 878 S.W.2d at 863. The legislature has provided a variety of alternatives for securing prisoner's rights to access to the courts. In Missouri, prisoners can testify by conventional deposition or by videotaped deposition or by closed circuit television, and in some instances, upon a prisoner's request, a trial judge may,...