Buschardt v. Jones

• Citation: 998 S.W.2d 791
• Decision Date: 31 March 1999
• Docket Number: No. WD,WD
• Parties: Carter G. BUSCHARDT, Appellant, v. Glenna Rae Buschardt JONES, Respondent. 55121.
• Court: Court of Appeal of Missouri (US)

Page 791

998 S.W.2d 791

Carter G. BUSCHARDT, Appellant, v. Glenna Rae Buschardt JONES, Respondent.

No. WD 55121.

Missouri Court of Appeals,

Western District.

March 31, 1999.

Motion for Rehearing and/or Transfer to

Supreme Court Denied June 1, 1999.

Application for Transfer Denied

June 29, 1999.

Nathalie C. Elliott, Richard L. Becker, Overland Park, Kansas, for appellant.

John R. Shank, Jr., Kansas City, MO, for respondent.

Before BRECKENRIDGE, C.J., HANNA and ELLIS, JJ.

BRECKENRIDGE, Judge.

Carter Buschardt appeals from an October 10, 1997 judgment modifying custody, visitation and support of the child born of his marriage to Glenna Rae Buschardt, now Jones. The judgment continues the previous award of joint legal custody of the minor child, Stephanie Buschardt, to the parents, Mr. Buschardt and Ms. Jones, but transfers primary physical custody to Ms. Jones. The judgment also grants Ms. Jones's request to remove Stephanie from the state of Missouri to permanently reside in California. Child support was ordered to be paid by Mr. Buschardt to Ms. Jones in the amount of $165 per month pursuant to the Form 14 calculation. Mr. Buschardt was granted visitation from July 1 until August 15 of each year and half of all school holidays of seven or more days duration. Ms. Jones was ordered to make Stephanie available for telephone contact with Mr. Buschardt at least twice a week while Stephanie resides with her mother and vice versa when she resides with her father. Travel expenses were to be divided equally between Mr. Buschardt and Ms. Jones. The court further ordered that both parties are prohibited from having an adult of the opposite sex, to whom they are not lawfully wed or related, spend the night with them during periods of custody or visitation.

Mr. Buschardt appeals the ruling of the trial court, arguing in his first point that the trial court's rulings as to custody and visitation resulted from the trial court's bias against Mr. Buschardt because of his living arrangements with Laura Schmidt, the woman with whom Mr. Buschardt lives, but to whom he is not lawfully married The trial court abused its discretion in sustaining Ms. Jones's request to remove Stephanie from the state, restricting Mr. Buschardt's visitation with Stephanie, and awarding primary physical custody to Ms. Jones. Therefore, the provisions pertaining to these issues, as well as the order for child support, are reversed. The cause is remanded for entry of a judgment denying Ms. Jones's request to move Stephanie to California and retrial of the issues of custody, visitation and support. Because the trial judge's oral pronouncement of his decision created an appearance that the judge's views had caused him to prejudge the case and precluded him from properly weighing the evidence, the trial judge is ordered to recuse himself on remand and a different judge should be assigned to retry the matter.

or related. As his second and third points, Mr. Buschardt argues that the visitation restriction is not supported by substantial evidence that his living arrangements would endanger Stephanie's physical health or impair her emotional development and that the trial court erroneously applied the law regarding restrictions on non-custodial visitation. Fourth, Mr. Buschardt argues that the trial court erred in allowing Ms. Jones to relocate Stephanie to California because the ruling was against the weight of the evidence. Finally, Mr. Buschardt argues that the trial court erred by transferring custody to Ms. Jones because the court erroneously applied the law and transferred custody based solely on the gender of the mother and child and because Mr. Buschardt was cohabitating with Ms. Schmidt.

FACTUAL AND PROCEDURAL BACKGROUND

Ms. Jones and Mr. Buschardt were divorced on May 6, 1993. In their settlement agreement, the parties agreed to share joint legal and physical custody of their daughter, Stephanie. No child support was ordered because the parties agreed that each would pay certain expenses for their daughter. Both parents kept a residence in Kansas City, Missouri, from the time of the original proceeding until the events leading to the modification proceedings.

During the period after the divorce, Mr. Buschardt began dating Laura Schmidt. Sometime later, Mr. Buschardt and Ms. Schmidt decided to combine their households and live together, but they chose to remain unmarried. Likewise, subsequent to the divorce, Ms. Jones developed a relationship with Phillip Jones, a pilot with American Airlines. Ms. Jones and Mr. Jones were married, five months later. They resided in Ms. Jones's apartment in Kansas City, but Mr. Jones kept his primary residence in San Diego, California.

From the time of the divorce, the parents strictly observed the terms of the physical custody arrangement, with Ms. Jones having custody of Stephanie when she was in Kansas City and Mr. Buschardt having the child when Ms. Jones was away working as a flight attendant. This arrangement resulted in the child spending approximately fifty percent of her time with each parent. There was conflicting testimony as to the success of the arrangement in the early years following the divorce, but the evidence showed that, in the years immediately preceding the modification action, the arrangement presented problems. The dissension between Mr. Buschardt and Ms. Jones arose primarily over the transfer of custody of Stephanie between the two. Other sources of friction were that Mr. Buschardt thought that Ms. Jones was lax in her care of Stephanie, and Ms. Jones testified that Mr. Buschardt had angry outbursts and was verbally abusive to her in Stephanie's presence. The incidents that they testified to were very sporadic, however.

It was in the months immediately before the initiation of the modification proceedings that the relationship between Ms. Jones and Mr. Buschardt really deteriorated. Problems occurred because, under the Three days later, on May 5, 1997, Mr. Buschardt and Mr. Jones had an altercation when the Joneses were returning Stephanie to Mr. Buschardt's home at approximately 5:30 a.m. Mr. Jones claimed that Mr. Buschardt met him at the door yelling profanity and slammed the door in his face as he was handing Stephanie's bags to her in the house. Ms. Schmidt testified that Mr. Buschardt was angry that the Joneses were delivering Stephanie at 5:30 a.m. and used profanity when he answered the door, but that Mr. Jones exploded in response, grabbing Mr. Buschardt and threatening to kill him. In response to the incident, Mr. Buschardt filed an adult abuse petition requesting a restraining order against Mr. Jones. On June 4, 1997, within a month of the altercation between Mr. Buschardt and Mr. Jones, Ms. Jones moved with Stephanie to Mr. Jones's house in California. She did not give Mr. Buschardt any prior notice and she did not seek his permission, although they had joint custody and shared physical custody equally. On June 19, 1997, Ms. Jones filed a cross-motion to modify seeking permission to relocate Stephanie to California, sole custody of Stephanie, the establishment of a visitation schedule for Mr. Buschardt and an order that Mr. Buschardt pay child support. Mr. Buschardt then filed an amended motion to modify requesting that he be granted sole custody and child support.

parties' literal interpretation of the custody provisions of the decree of dissolution, Ms. Jones would have Stephanie in her physical custody whenever she was in town. She would deliver Stephanie to Mr. Buschardt's residence on her way to the airport, and she would pick up Stephanie as soon as she arrived in town. Because Ms. Jones was a flight attendant, her schedule was subject to frequent change with little notice, and the parties were not always successful in communicating about the changes. When Ms. Jones worked "reserve months" three months of the year, she was at the airline's mercy and could be given as little as two hours notice before a flight. At times Ms. Jones's schedule would cause her to be significantly late or arrive significantly early and that would occur with little to no notice on her part. Possibly three to four times a month, Ms. Jones would pick Stephanie up after her 8:30 p.m. bedtime. Mr. Buschardt and Ms. Schmidt felt they were left to conform Stephanie's and their schedules to Ms. Jones's schedule. Mr. Buschardt became angry and frustrated by the uncertainty and, on May 2, 1997, he filed a motion to modify the custody provisions of the prior decree, requesting that the trial court establish a specific schedule for transfers of Stephanie's physical custody between the parties.

At trial, the court considered the parties' motions to modify and Mr. Buschardt's adult abuse petition, in a consolidated hearing. Various witnesses testified as to the parenting capabilities of Mr. Buschardt and Ms. Jones. Testimony was also received regarding the relationship each parent shared with the child and the lifestyle each parent could provide for her. In ruling on the adult abuse matter, the trial court stated he did not know who was telling the truth about the May 5 th incident, but the petition was denied because the evidence did not demonstrate a cause of action for stalking, as alleged, under the adult abuse statute. In its ruling on the motions to modify, the trial court found "it [was] a very close call" comparing the conduct of the parties with the statutory criteria. The trial court found the evidence on removal from the state fairly even as well. However, the trial court found that "overall, it's in the best interest of Stephanie to be with Mom." Mr. Buschardt filed a timely appeal to this court alleging the trial court was biased and that it erred in determining Stephanie's best interests, in granting permission for Stephanie to be removed from the state, and in restricting his visitation with the child.

STANDARD OF REVIEW

The standard of review in this case is established by ...