Burton v. Burton, WD

• Decision Date: 01 March 1994
• Docket Number: No. WD,WD
• Citation: Burton v. Burton, 874 S.W.2d 461 (Mo. App. 1994)
• Parties: Patricia BURTON, Appellant, v. Duane BURTON, Appellant, Don and Juanita Hertzog, Respondents. K.B., Minor Child, Appellant. 47653.
• Court: Missouri Court of Appeals

Page 461

874 S.W.2d 461

Patricia BURTON, Appellant, v. Duane BURTON, Appellant Don and Juanita Hertzog, Respondents K.B., Minor Child, Appellant.

No. WD 47653.

Missouri Court of Appeals Western District.

March 1, 1994.

Motion for Rehearing and/or Transfer to Supreme Court Denied March 29, 1994.

Application to Transfer Denied May 26, 1994.

Bruce A. Bailey, Warrensburg, for appellant Patricia Burton.

Leonard K. Breon, Warrensburg, for appellant Duane Burton.

Dane Miller, Warrensburg, guardian ad litem for appellant K.B.--Minor Child.

Michael X. Edgett, Clinton, for respondents Don and Juanita Hertzog.

Before BERREY, P.J., C.J., and BRECKENRIDGE and SMART, JJ.

SMART, Judge.

This case arises from the modification of a child custody order where the trial court did not grant custody of a minor child to either of the parents, but instead granted custody to a couple who were not formally made parties to the action until the new custody order had been announced. The biological parents, Duane and Patricia Burton, and the minor child, K.B., through her guardian ad litem, appeal from the trial court's order placing custody of K.B. with Don and Juanita Hertzog, the present custodians of the minor child.

Judgment is reversed and remanded.

The marriage of Duane Burton and Patricia Burton was dissolved on November 1, 1988. The trial court awarded custody of the minor child, K.B., born May 26, 1988, to Patricia Burton, the natural mother. The natural father, Duane Burton, was awarded reasonable visitation rights. For approximately two years after the decree of dissolution, Duane had little or no contact with the child and consistently failed to make required child support payments. In May, 1990, Duane filed a petition seeking to modify the previous custody order to enforce his visitation rights and to be kept advised of Patricia's location and both parties filed cross petitions for contempt. The parties reached an agreement on the visitation issue and the motions for contempt were withdrawn.

On January 17, 1992, Duane filed a motion for temporary custody on grounds that the child had been removed by Patricia to the State of Nebraska. Patricia cross-petitioned seeking to remove the child to her new home in Nebraska. Duane amended his motion to modify alleging the following changed circumstances: Patricia had refused reasonable visitation by removing the child from the State of Missouri; Patricia was living with her boyfriend in the State of Nebraska; Patricia had not provided a stable and moral living environment because she moved on frequent occasions; Patricia left the child with baby sitters frequently and for extended periods of time without checking on the well-being of the child; the child was developmentally delayed and in need of specialized care which Patricia could not provide in Nebraska; the child was in need of consistency, stability and interaction with other children and would not receive such because Patricia was living and working on a ranch "in the middle of nowhere"; Duane had received no phone visits with the child after the child was taken to Nebraska; and it was in the child's best interest to award primary custody to the natural father.

On January 31, 1992, after a hearing, the trial court entered an order which granted temporary physical custody to Duane. The court noted that the child had been seeing a children's counselor for approximately one month. The court specifically provided that the order was to be for a 30-day period to allow the counselor to complete her evaluation. On March 10, 1992, in response to Patricia's request for temporary custody, the trial court ordered a home study of Patricia's residence in Nebraska. Pursuant to stipulation of the parties, the court temporarily transferred custody back to Patricia on May 28, 1992. Patricia agreed to return the child to Missouri on weekends so the counselor would have an opportunity to observe the child while in Patricia's primary care. After the counselor expressed concerns regarding the nature of care reported by the child and the number of hours the child had to spend on the road, the temporary custody arrangement with the natural mother was discontinued by order dated June 26, 1992.

The child remained in the temporary physical custody of Duane until January 28, 1993. After a hearing on the custody issue, the court orally announced that it was granting temporary custody of the child to Don and Juanita Hertzog, a couple with whom the child had spent substantial time, and who had testified at the hearing. Neither parent registered an objection to the temporary placement of the child with the Hertzogs. In the trial court's written order dated February 9, 1993, the trial court then went beyond any of the earlier oral comments and found that both parents led "very unstable lifestyles." The court went on to grant permanent custody of the child to the Hertzogs, with reasonable visitation to both parents. In the order, the court added Don and Juanita Hertzog as parties to the suit and set a further conference with all attorneys for March 23, 1993, to give the Hertzogs an opportunity to be heard. In the meantime, on February 15, 1993, both natural parents, in an effort to void the order, filed dismissals of their motions for modification of custody.

On February 19, 1993, Don and Juanita Hertzog filed a motion for an order to show cause why Duane should not be held in contempt for violating the trial court's custody order. The motion filed by the Hertzogs alleged that Duane had picked the child up at the Hertzog residence three days earlier, purportedly to take the child to a birthday party, and had not returned the child. The trial court issued an order to Duane Burton on February 19, 1993, directing him to show cause why he should not be held in contempt for not returning the child as required by the custody order. The guardian ad litem informed the court that he had learned that the child had been turned over to Patricia and was residing in Nebraska. The Hertzogs regained custody of the child through habeas corpus proceedings in the State of Nebraska. In April, 1993, the Hertzogs dismissed their motion for a show cause order. The child has remained in the custody of the Hertzogs since shortly before April 9, 1993, having occasional weekend visits with Patricia.

The Burtons allege that the trial court erred by: (1) awarding custody of K.B. to the Hertzogs prior to making them parties to the action as expressly required by § 452.375.4(3)(a), RSMo 1990; (2) violating their constitutional due process rights by not giving them prior notice that the Hertzogs were adversaries regarding the issue of child custody, and by not affording them an opportunity to be heard on the issue of the Hertzogs' fitness during the proceedings; and (3) removing K.B. from the custody of Patricia Burton and placing custody in third persons because there was no specific finding that the Burtons were "unfit, unsuitable or unable" to be custodial parents, nor any finding that the welfare of the child required such a custody order, and that it was in the best interests of the child for custody to be placed with the Hertzogs. The Burtons claim that the trial court erroneously applied the law set forth in § 452.375.4(3)(a).

First, we will address appellants' claim that they were denied due process of law. The Burtons urge that they were denied their constitutional rights to procedural due process by being denied notice and an opportunity to be heard in the custody modification proceeding. Patricia specifically claims that the fourteenth amendment to the United States Constitution and Article I, § 10 of the Missouri Constitution require that she be afforded adequate notice of third persons being added as adversarial parties to the modification proceeding and an opportunity to be heard on the issue of the third persons' suitability and fitness to be granted custody of the minor child. Appellants claim that the trial court's error prevented the appropriate presentation of evidence regarding the necessity for third-party custody, the suitability of the proposed custodians, and the best interests of the child.

Under § 452.375.4(3)(a), a court may award custody, temporary...