Francis v. Wieland, WD 79497

• Decision Date: 28 February 2017
• Docket Number: WD 79497,WD 79962
• Citation: 512 S.W.3d 71
• Parties: Christina FRANCIS, Appellant, Patrick Davis, Mandee Pingel and Davis Pingel & Associates, Appellants, v. Daniel WIELAND, Respondent.
• Court: Missouri Court of Appeals

512 S.W.3d 71

Christina FRANCIS, Appellant,

Patrick Davis, Mandee Pingel and Davis Pingel & Associates, Appellants,
v.
Daniel WIELAND, Respondent.

WD 79497
WD 79962

Missouri Court of Appeals, Western District.

OPINION FILED: February 28, 2017
Rehearing Denied March 28, 2017

Patrick Davis, Kansas City, MO, Counsel for Appellants; Mandee Pingel, Kansas City, MO, Co-Counsel for Appellants; Alan Mandel and Michael Sudekum, St. Louis, MO, Co-Counsels for Appellants.

Alexandra Hutchings, Liberty, MO, Counsel for Respondent.

Before Division Four: Mark D. Pfeiffer, Chief Judge Presiding, Thomas H. Newton, and Lisa White Hardwick, JJ.

Thomas H. Newton, Judge

Ms. Christina Francis, Mother of the 11–year-old child subject to the motion to modify custody at the core of this dispute, appeals a circuit court judgment granting joint legal and joint physical custody to her and Mr. Daniel Wieland, the child's biological Father, and otherwise establishing a parenting plan and ordering child support, and requiring the parties to pay their own counsel fees. She contends that joint legal custody is not justified in light of the court's finding that the parents' relationship is toxic, the court did not make appropriate findings of fact and failed to find that joint legal custody was in the child's best interests, the guardian ad litem failed to properly discharge her duties and should have been replaced, and the court

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improperly failed to recuse itself for bias. We affirm.

Mother's attorneys, Mr. Patrick Michael Davis, Ms. Mandee Rowen Pingel, and Davis and Pingel Associates, appeal an order requiring that they pay $75,000 as a sanction for communicating with Father's expert witnesses and abusing the court with, among other matters, a request for more than 2,000 findings of fact. They argue that the circuit court violated their due process rights, sanctions were not justified in the absence of bad faith, the sanction imposed was punitive, and the circuit court failed to afford them the procedural protections required under Rule 36.01. We reverse and remand for further proceedings.

This case originated in St. Louis County where Mother's husband, Mr. Greg Francis, had filed for divorce in 2009. Father was joined as a third-party respondent because Mother had given birth in 2005 to his child while separated from but still legally married to Mr. Francis. After the St. Louis circuit court issued a paternity and custody judgment as to their child in June 2011 and Father sought to modify custody, the case was transferred to Clay County, where Mother had moved. The St. Louis court had ordered joint physical custody and Mother's sole legal custody, and Father's motion to modify requested sole physical and sole legal custody.

Mother lives with their child in Liberty in a home she shares with Mr. Edgar Bozarth, their son, and a son from the Francis union. Mr. Bozarth is legally separated from his spouse; he and Mother are engaged to be married. Father lives in Bunceton, Missouri, in Cooper County on a 2,000–acre family farm; he was married in 2010 to Ms. Angela Wieland. The child has a half sister who lives with her father, Mr. Francis. The Davis Pingell law firm undertook Mother's representation in August 2014, or about a year after the Clay County court assumed jurisdiction.¹

Mother filed a counter-motion to modify custody in December 2014, seeking sole physical and sole legal custody. Father's parenting plan, filed in April 2015 before the first hearing, called for joint physical custody and joint legal custody, with the child to reside in his home. Father filed a motion for sanctions the day before trial began, and the circuit court indicated that it would hold a hearing on it, but never did so.²

Following months of contentious pre-trial proceedings, generating thousands of pages of filed documents, and five days of trial, the circuit court determined that circumstances had sufficiently changed to warrant altering the original custody order from Mother's sole legal custody to joint legal custody, with the child's residence to remain in Mother's home. The court also determined that the financial circumstances had not changed to an extent that would warrant a departure from the $916 monthly child-support award to Mother in 2011.

The circuit court further issued a sanctions order against Mother's lawyers and firm. The order granted Father's motion for sanctions that was based primarily on contacts by Mother's counsel with Dr. Lori Schwartz, who was Father's expert and

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the psychologist who had conducted Mother's independent psychiatric evaluation. One element of that contact was a 44 page letter from Mother's counsel to Dr. Schwartz, suggesting that the expert amend her evaluation due to 125 alleged ambiguities and factual inaccuracies. The court cited Mother's counsel not only for contact with Dr. Schwartz, but also with Dr. Aileen Utley, a psychologist who was another of Father's expert witnesses and had conducted the child's independent psychiatric evaluation, and for additional litigation actions purportedly undertaken in "bad faith," including submitting more than 2,000 recommended findings of fact, a number of which were based on evidence not introduced at trial, and were incomplete sentences, irrelevant, or left blank. Thereafter, Mother filed a motion for mistrial and for the court to set aside its judgment, including a request for an order of recusal and the assignment of a new judge. Mother's counsel filed a motion for reconsideration of the sanctions judgment, including a request that the court disqualify itself for bias.³ The court denied all post-trial motions during a March 2016 hearing, and Mother and her attorneys and their firm filed these appeals.

Legal Analysis

Child–Custody Modification Judgment

We sustain the trial court's judgment in a child-custody dispute "if substantial evidence supports the order, if the judgment is not against the weight of the evidence, and if the decision does not erroneously declare or apply the law." M.L.H. by D.R.H. v. W.H.P. , 831 S.W.2d 677, 682 (Mo. App. W.D. 1992). "Great deference is bestowed upon the trial judge to determine credibility. Appellate courts view the evidence, and any reasonable inference from the evidence, in the light most favorable to the decree, disregarding all contrary evidence." Id.

Mother's first point on appeal challenges the circuit court's exercise of discretion in ordering joint legal custody and its application of law in "delegating legal authority to psychologists and doctors." She contends that changed circumstances were not shown since 2011 to indicate that Father was capable of working with mother in making joint decisions and that Missouri law does not allow parental or judicial authority to be delegated to third parties.⁴ To support its modification judgment, the circuit court specifically found the following changes in circumstances:

A. The minor child misses a concerning amount of school;

B. The child has been seen by several different counselors for a number of different reasons, has been in and

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out of mental health facilities and received a number of mental health diagnoses;

C. The relationship between [Mother] and [Father] has deteriorated to its current, toxic state;

D. The minor child is often present for arguments concerning his healthcare and treatment between the parties, which is not in his best interest;

E. At the time of entry of the prior judgment the minor child was 5 years old. As a ten-year-old, he needs more time with [Father] and is better able to travel the distance between the parties' residences and able to spend more consecutive nights away from either parent; ...

According to Mother, the St. Louis court supported its award of sole legal custody to her by finding in 2011 that "the parents did not demonstrate the willingness and ability to share the rights and responsibilities of raising their child." Indeed, the court found that "they disagree as to [the child's] health care; his preschool placement; and the choice of his religious upbringing." The court, however, also found that Mother had been the residential and more active parent in making such decisions, "and Father never objected to any of them." Further, "Mother's decisions during the pendency of this litigation as to the education and mental and physical health care for [the child] have been appropriate."

In contrast, while the Clay County court found that the parties had "demonstrated no ability to communicate on any issues" and that their "animosity ... rises to a level seldom seen, even in this courtroom," it faulted Mother for choosing a therapist for the child with no appointment time available outside of school hours and for continuing the child in weekly therapy despite his obvious progress in dealing with his diagnosed attention deficit hyperactivity disorder and post-traumatic stress syndrome. Father's lack of consent to Mother's decisions is implicit, of course, in his filing of a motion to modify custody. The court also found that even Mother's expert witness Dr. Gerald Gentry, who had conducted an independent psychiatric evaluation of Father, had recommended...