Beshers v. Beshers

• Decision Date: 02 July 2014
• Docket Number: Nos. SD 32696,SD 32715.,s. SD 32696
• Citation: 433 S.W.3d 498
• Parties: In re the Marriage of Amy C. BESHERS (now Quinn), Petitioner/Appellant/Cross–Respondent, v. Paul W. BESHERS, Respondent/Respondent/Cross–Appellant.
• Court: Missouri Court of Appeals

433 S.W.3d 498

In re the Marriage of Amy C. BESHERS (now Quinn), Petitioner/Appellant/Cross–Respondent,

v.Paul W. BESHERS, Respondent/Respondent/Cross–Appellant.

Nos. SD 32696, SD 32715.

Missouri Court of Appeals,

Southern District,

Division One.

July 2, 2014.

J. Christopher Allen, of Lebanon, Missouri, for Appellant.

James R. Royce, of Springfield, Missouri, for Respondent.

WILLIAM W. FRANCIS, JR., C.J.

Amy C. Beshers Quinn (“Mother”) and Paul W. Beshers (“Father”) cross-appeal the trial court's February 7, 2013 “Amended Judgment and Decree of Modification.” See Rules 81.04(c) and 84.04(i).¹ Mother's appeal (SD32696) and Father's appeal (SD32715) were consolidated for purposes of this opinion. On appeal, Mother raises five points of alleged trial court error, and Father raises a single point of alleged trial court error. Finding no merit in any of these points, we affirm the judgment of the trial court.

Factual and Procedural Background

In the light most favorable to the judgment, the following facts were adduced at trial. On August 13, 2009, a “Modified Judgment and Decree of Dissolution of Marriage” (“Dissolution Judgment”) was entered dissolving the marriage of the parties and awarding the parties joint legal and physical custody of the three minor children born of the marriage: C.M.B., M.K.B., and C.J.B. (collectively “the children”), with Mother's address designated for mailing and educational purposes. Father was ordered to pay financial support to Mother for the children in the total amount of $545 per month.

On December 3, 2009, an altercation occurred between C.M.B., Mother, and Mother's current husband (“Quinn”), over an argument C.M.B. had with M.K.B. Mother spanked C.M.B. with a plastic cutting board, and Quinn then spanked C.M.B. with a wooden paddle. Each spanked C.M.B. numerous times resulting in both the plastic cutting board and the wooden paddle being broken.

On December 4, 2009, Father saw C.M.B. was badly bruised from his waist to the middle of his legs. The primary bruising was on his buttocks, both of which were severely bruised. Father immediately called the hotline for the Missouri Department of Social Services and was directed to take C.M.B. to the agency's office in Marshfield. Officer Todd Clark (“Officer Clark”) of the Marshfield Police Department was contacted to take photographs of C.M.B.'s injuries.

C.M.B. was bruised to such an extent that Officer Clark recommended criminal charges be filed against Mother and Quinn. He prepared probable cause statements and provided those to the prosecuting attorney. Criminal charges were thereafter filed against Mother and Quinn; however, the charges were dismissed after Mother signed a deferred prosecution agreement in which she admitted striking C.M.B.

Due to C.M.B.'s injuries, the Children's Division of the Missouri Department of Social Services implemented a safety plan wherein C.M.B. was placed with Father and had supervised visitation with Mother. C.M.B. has lived with Father since December 4, 2009.

On April 13, 2010, Father filed a “Motion to Modify Judgment of Dissolution of Marriage as to Child Support, Child Custody and Visitation.” Father sought to have the Dissolution Judgment modified and asked the court to enter a new custody and support order in regard to the children. Father alleged that the children had undergone continuing and substantial changed circumstances, citing the December 3, 2009 spanking incident as support. Father's proposed parenting plan called for sole legal and physical custody of the children with supervised visitation for Mother. In her answer, Mother denied Father's allegations and requested the court refuse to modify the Dissolution Judgment as there were no substantial and continuing changes of circumstances.

On May 19, 2010, the court appointed Teresa Housholder (“Housholder”) as guardian ad litem, a position she held until November 29, 2010, when the trial court granted her leave to withdraw. Kevin Easley (“Easley”) was subsequently appointed to serve as guardian ad litem.

On June 4, 2010, the court entered a “Temporary Order” that C.M.B. would attend weekly counseling with Karon Harms (“Harms”).

On December 16, 2010, Father filed a “Motion for Sanctions,” alleging Mother had failed to pay her portion of the guardian ad litem fees to Housholder as ordered by the court, Mother had failed to pay her share of the counseling sessions with Harms as ordered by the court, and requested that Mother be sanctioned as a result. On March 28, 2011, the court heard argument on Father's Motion for Sanctions. The court made the following docket entry: “Court hearing agreement [sic] on [Father]'s Motion for Sanctions and takes same under advisement.” Thereafter, on September 28, 2011, Father filed a “Second Motion for Sanctions” with the same allegations as to Mother's nonpayment of fees.

On May 25, 2011, the court ordered Mother and Father to engage in “high-conflict resolution counseling” with John Duncan (“Duncan”).

On January 25, 2012, Mother filed a “Counter–Motion to Modify Judgment of Dissolution of Marriage as to Child Support, Child Custody and Visitation.” Mother alleged that there were changes in circumstances so substantial and continuing as to make the terms of the Dissolution Judgment unreasonable and that as a result, a modification was necessary to serve the best interests of the children.

A bench trial was held on February 1 through 3, 2012. Prior to trial, the trial court observed that leave had not been granted for Mother to file her counter-motion to modify and asked the parties whether there were any objections. Father's counsel did object stating that the motion was untimely (six days before trial) because Father would not have time to file any responsive pleadings, and that the relief sought by Mother was available as a part of Father's motion to modify. The trial court agreed with Father's counsel that “the relief requested is available to you already” and, on that basis, sustained Father's objection. Mother, however, did introduce evidence at trial supporting her counter-motion to modify, including her proposed parenting plan that provided she would have sole physical and sole legal custody of the children.

As relevant for purposes of this appeal, evidence was adduced at trial regarding the present state of C.M.B.'s relationship with Mother. Harms believed that C.M.B. was physically and emotionally afraid of Mother and that he would run away if ordered to live with her. According to Harms, her sessions with C.M.B. and Mother became so combative that she had to suspend the sessions. During his testimony, C.M.B. confirmed that he wanted no contact with Mother even if arranged in a controlled setting. When C.M.B. was asked if he could tell some positive or good things about Mother as a parent, C.M.B. stated that, “I don't know any.” C.M.B. testified he disliked Mother a lot and for all he cared “she could fall off the face of the earth and die and [he] wouldn't care.” On one occasion, to avoid a scheduled visit with Mother, C.M.B. ran away from school.

At the conclusion of the evidence, the trial court took the case under advisement. On October 16, 2012, the trial court entered its “Judgment and Decree of Modification.” Thereafter, on November 14, 2012, Father filed a “Motion to Amend Judgment and Motion for New Trial and Suggestions in Support Thereof.” In this motion, Father argued that the trial court's judgment lacked written findings as to the factors listed in section 452.375.2, was incorrect as to the effective date of child support, and was incomplete and unenforceable by its terms with regard to a contempt order contained therein.

On February 7, 2013, the trial court entered its “Amended Judgment and Decree of Modification” (“Final Judgment”), which amended an earlier judgment pursuant to Father's November 14, 2012 Motion to Amend Judgment and Motion for New Trial and Suggestions in Support Thereof. Under the trial court's Final Judgment, the Dissolution Judgment was modified as it applied to C.M.B., but not modified as it applied to M.K.B. and C.J.B. The trial court found that the December 3, 2009 ² “spanking” or “beating” of C.M.B. by Mother and Quinn that left “significant bruising” on C.M.B.'s bottom and upper legs, resulted in significant issues between Mother and C.M.B. for which C.M.B. had been receiving counseling since the incident. However, the trial court believed that but for Father's influence, Mother and C.M.B. could have reconciled and that the spanking by itself would not, in the trial court's opinion, justify a modification of the court's prior order. The trial court acknowledged the spanking had become a major source of friction between Mother and C.M.B. and helped shape C.M.B.'s feelings toward Mother.

The trial court further stated that Father had engaged in “frequent and deliberate attempts to alienate all the children toward [Mother].” While M.K.B. and C.J.B maintained a good relationship with Mother, C.M.B., as a result of the spanking incident and Father's attempts at alienation, had developed “an extremely bitter and unhealthy attitude toward [Mother]” and noted C.M.B.'s propensity to run away. Relying on Easley's written recommendations,³ the trial court concluded that until some amount of reconciliation could be achieved between Mother and C.M.B., Mother having residential custody of C.M.B. is “at best, risky” and “has the potential for disaster.” Additionally, the trial court was concerned that the conflict between C.M.B. and Mother would have an adverse affect on the other children, especially M.K.B.

The trial court concluded that both Father's proposed parenting plan and Mother's proposed parenting plan provided for custodial arrangements that were not in C.M.B's best interest. Therefore, the trial court rejected both plans and ordered the parties would have joint legal and physical custody of C.M.B., pursuant to the trial court's ...