Frazier v. Frazier, WD

• Decision Date: 19 January 1993
• Docket Number: No. WD,WD
• Citation: 845 S.W.2d 130
• Parties: Joseph Michael FRAZIER, Appellant, v. Tara Jeanette FRAZIER, Respondent. 45899.
• Court: Missouri Court of Appeals

Page 130

845 S.W.2d 130

Joseph Michael FRAZIER, Appellant, v. Tara Jeanette FRAZIER, Respondent.

No. WD 45899.

Missouri Court of Appeals Western District.

Jan. 19, 1993.

Teri Gonder, Columbia, for appellant.

Joseph D. Holt, Fulton, for respondent.

Before BRECKENRIDGE, P.J., and SHANGLER and KENNEDY, JJ.

KENNEDY, Judge.

Husband appeals from that part of dissolution decree of the trial court which awarded custody of two minor children to wife and fixed child support payable by husband to wife at $365 per month per child. Husband appeals from the decree with the following complaints: (1) that the trial court had not appointed a guardian ad litem for the children; (2) that the trial court erred in awarding custody of the children to wife and not to husband; and (3) that the trial court erred in awarding custody of the children to wife and not to husband and wife in joint custody.

The two children were boys, born respectively on May 30, 1985 and November 10, 1986. Their temporary custody had been granted to husband during the pendency of the dissolution case.

First, did the court err in failing to appoint a guardian ad litem to represent the boys in the dissolution proceeding? Neither party requested the appointment of a guardian ad litem, but husband contends on appeal that the court sua sponte should have made such appointment. He bases his argument upon Section 452.423.1 RSMo Supp.1991, which says:

In all proceedings for child custody or for dissolution of marriage or legal separation where custody, visitation, or support of a child is a contested issue, the court may appoint a guardian ad litem. The court shall appoint a guardian ad litem in any proceeding in which child abuse or neglect is alleged. (Emphasis supplied.)

It is to be noticed that it is the allegation of abuse or neglect of a child which calls for the appointment of a guardian ad litem, not proof of the same. McCormick v. McCormick, 807 S.W.2d 556 (Mo.App.1991). Husband says a motion filed by wife during the pendency of the proceeding contained an allegation of neglect which required the trial court to appoint a guardian ad litem. Wife's motion followed the court's pendente lite order awarding custody of the boys to husband. The motion was entitled "Request for Rehearing on Order of Custody." It alleged the two children were playing in a garage, unsupervised, at the home of a third child, when the four-year-old Nathan suffered an accident in which his right index finger was "almost amputated." The child underwent surgery at a hospital emergency room. Husband absented himself for an hour during the surgery, leaving respondent there by herself. The accident, it was alleged, resulted from husband's lack of supervision, which was described as "gross negligence" on husband's part. It was further alleged husband's leaving the hospital was "gross carelessness."

There was no evidentiary hearing on the "Request for Rehearing on Order of Custody."

Were the allegations of the motion sufficient to require the appointment of a guardian ad litem for the child? Wife on this appeal minimizes the alleged neglect, characterizing it as a play accident of the sort that children may be expected to have. During the pendency of the trial, though, the accident furnished the basis for her motion to remove the children from husband's custody. Husband's lack of supervision of the children was characterized as "gross negligence," and his absenting himself from the hospital as "gross carelessness." The motion alleged that the husband's failure to supervise the children was "demonstrative of (husband's) lack of ability to provide the necessary care, supervision and custody of the child." There was, as noted, no evidentiary hearing on the motion for rehearing on the pendente lite order of custody, but wife's testimony on the trial of the case stressed the incident as indicating husband's inadequacy as a custodial parent.

For the term "neglect" as used in Section 452.423.1 RSMo Supp.1991, the cases have adopted the definition of Section 210.110(5) RSMo 1986. Renfro v. Fehrmann, 817 S.W.2d 592, 594 (Mo.App.1991); Osmun v. Osmun, 842 S.W.2d 932, 935 (Mo.App.1992). "Neglect" by that definition includes "failure to provide ... the proper or necessary support, education as required by law, nutrition or medical, surgical, or any other care necessary for [the child's] well-being[.]" It will scarcely be...