Cotton v. Wise, 80769
| Decision Date | 20 October 1998 |
| Docket Number | No. 80769,80769 |
| Citation | 977 S.W.2d 263 |
| Parties | Wallace COTTON, Appellant, v. Viva WISE, Respondent. |
| Court | Missouri Supreme Court |
Mary Deborah Benoit, St. Louis, for Appellant.
Bryan Hettenbach, Clayton, Marie Kenyon, St. Louis, for Respondent.
Mary E. Davidson, St. Louis, for Guardian Ad Litem.
The question presented here is whether the trial court can by-pass the provisions of Missouri's guardianship statute and grant custody and guardianship of minor children to a person the court deems to be an "equitable parent." Because the guardianship statute, section 475.030, RSMo 1994, is quite sufficient in the circumstances presented here to serve the interests of these children, we reverse and remand for the entry of an order complying with the statute.
Wallace Cotton and Bobbi Jo Cotton were married on June 14, 1982. At the time of her marriage, Bobbi Jo had two daughters, ages 9 and 7, who are not related to Wallace Cotton. The younger of Bobbi Jo's daughters, Viva Wise, is the respondent here.
Two children were born during the marriage of Wallace and Bobbi Jo, S.A. in November l986 and D.S. in September 1988. While Wallace resided with Bobbi Jo, there were daily altercations marked with physical violence against Bobbi Jo and her daughters. Wallace moved out of the family home before the birth of his younger child. During the time that Wallace and Bobbi Jo were separated, he failed to maintain child support and, at the time of trial of this matter, owed over $11,000 in back child support. Wallace remained away from the home until 1995. A few months after he moved back, Bobbi Jo died, in January 1996. When Bobbi Jo died, Wallace went to live with his sister and left the children in the care of Viva Wise, their half-sister. Viva and the children went to live with Lola, Bobbi Jo's other daughter. Viva took primary responsibility for caring for her two half-siblings, Wallace's children, without support from Wallace, though the children have continued to have visitation with Wallace. Viva and the children moved several times to the homes of various family members until Viva established her separate residence where she and the children currently reside.
The trial court's record and its findings of fact are replete with references to Wallace's deficiencies as a parent. The record and the trial court's findings, moreover, document the care, nurturing, and stability that Viva Wise has provided for these two young children. After Bobbi Jo died, Wallace said he thought the children would be "better off" remaining with Viva, who had provided much of their care during their mother's illness. At trial, Wallace said he believed Viva is "doing a good job" with the children.
The record supports the trial court's conclusion that granting custody to Viva Wise is in the children's best interests under an "equitable parent" notion. However, the legal doctrine under which the court must fashion its order is not an equitable parent notion but, rather, the guardianship statute. Section 475.030, RSMo 1994.
Under the version of "equitable parent" adopted by the trial court here, a "better" parent simply could be substituted for the natural parent when that substitution seems to be in the best interests of the children. The phrase also implies that the non-parent is a "parent" and, thus, on equal footing with a natural parent. The phrase "equitable parent" was adopted from a decision by the Michigan Court of Appeals in Atkinson v. Atkinson, 160 Mich.App. 601, 408 N.W.2d 516, 519 (1987). Atkinson was a divorce case that held that a husband who was not the biological father of a child born or conceived during the marriage could be "an equitable parent" under certain circumstances. Id. By contrast, a similar notion of "equitable parent" was rejected by the South Dakota Supreme Court in D.G. v. D.M.K., 557 N.W.2d 235, 241 (S.D.1996). While the phrase sounds like a doctrine, its meaning and application are not well fixed nor widely accepted. No reported Missouri case has adopted the theory.
Unless a statutory scheme is plainly inadequate under circumstances where a court has a duty to act, there is no need for the court to exercise its equity powers to fashion a "better" remedy than exists in the statutes. Section 475.030.4, RSMo 1994, provides that:
[l]etters of guardianship of the person of a minor may be granted in the following cases:
(1) Where a minor has no parent living;
(2) Where the parents or the sole surviving parent of a minor are unwilling, unable or adjudged unfit to assume the duties of guardianship;
(3) Where the parents or the sole surviving parent have had their parental rights terminated under chapter 211, RSMo.
A natural parent has the benefit of a rebuttable presumption that he is the appropriate custodian, but the presumption may be overcome by evidence that a parent is unfit, unable or unwilling to take charge of the child. Estate of Williams, 922 S.W.2d 422, 424 (Mo.App.1996). Respondent contends that the trial court's extensive discussion of Wallace's shortcomings suggests that Wallace is unfit, unable, or unwilling to care for the children. Respondent here takes the hopeful position that the very fact that the trial court's decision granted Viva Wise's guardianship petition amounts to such a finding. We are unable to agree that the requisite finding has been made.
We note the trial court's conclusion that "Viva may be awarded custody of the minor children, though Wallace is not unfit or unable to care for the minor children, if the minor children's growth and development may be detrimentally affected by placement with Wallace or by elimination of contact with Viva." Although the trial court's recitation of facts following that statement is some proof that Wallace is unfit, unable, or unwilling to care for his children, the legal conclusion embedded in that statement is not correct. The award of custody to Viva must be premised upon a finding that the natural parent is...
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