Grissom v. Grissom

• Decision Date: 02 August 1994
• Docket Number: Nos. WD,s. WD
• Parties: Candace S. (Losey) GRISSOM, Plaintiff, Tony Jay Grissom, Rachel Lee Grissom, and Rebecca J. Grissom, Appellants, Lewis Pitts, Appellant, v. Randall J. GRISSOM, Respondent, Division of Family Services, Defendant. 48552, WD 48553.
• Court: Missouri Court of Appeals

Page 47

886 S.W.2d 47

Candace S. (Losey) GRISSOM, Plaintiff Tony Jay Grissom, Rachel Lee Grissom, and Rebecca J Grissom, Appellants Lewis Pitts, Appellant, v. Randall J. GRISSOM, Respondent Division of Family Services, Defendant.

Nos. WD 48552, WD 48553.

Missouri Court of Appeals, Western District.

Aug. 2, 1994.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Oct. 4, 1994.

Application to Transfer Denied

Nov. 22, 1994.

P. Lewis Pitts, Jr., Durham, NC, Keith Brunstrom, Jefferson City, for appellants Grissom.

P. Lewis Pitts, Jr., Durham, NC, David A. Masters, Macon, Keith W. Brunstrom, Jefferson City, for appellant Pitts.

Keith W. Brunstrom, Jefferson City, for amici curiae Nat. Task Force for Children's Constitutional Rights, Nat. Ass'n of Counsel for Children, Center for Constitutional Rights, Child Advocacy Law Clinic.

Before LOWENSTEIN, P.J., and BERREY and SPINDEN, JJ.

SPINDEN, Judge.

This appeal stems from a contempt proceeding in which the trial court refused to let a divorced couple's children participate in the proceedings even though their custody could have been affected. We affirm in part and reverse in part.

Facts

Candace Losey ¹ and Randall Grissom's marriage was dissolved on August 13, 1990. The couple had four children. The three oldest are involved in this appeal: Tony, born on December 23, 1976; Rachel, born on July 11, 1978; and Rebecca, born on January 23, 1981. A fourth child, Nicholas, is not an appellant. Extensive litigation ensued between the original divorce decree and the contempt proceeding which serves as the basis of this appeal. We set forth the relevant events.

After the court modified the original divorce decree, Losey had physical custody of the children. Grissom had visitation rights. In August 1991, Grissom asked the court to hold his ex-wife in contempt for interfering with his visitation rights. This action was resolved by a written stipulation in which the parties made agreements regarding counseling and visitation.

In March 1992, Grissom again asked the court to hold his wife in contempt for interfering with visitation. Losey's attorney, David Masters, asked for a change of judge in April 1992. The trial judge denied the request. Masters sought a writ of prohibition, and this court denied it. Masters then withdrew as Losey's attorney on August 4, 1992.

The trial court heard testimony on the motion for contempt on September 30, 1992; on December 17, 1992; and on April 29, 1993. During the hearings, the children testified that their mother did not prevent them from visiting their father, but urged them to do so. They said that they refused to visit their father because his behavior frightened them. They said that they saw him drunk several times and that he took pills which made him sleepy. They said they also found pornography among his belongings. Rachel said her father "sexually molested" her and her sister. They said that their father was physically violent towards their mother and that he threatened to kill her. A psychologist who had counseled the three oldest children and Grissom testified that court-mandated visitation would be counter-productive because of the children's antagonistic feelings toward their father.

On May 13, 1993, the trial court found Losey in contempt on the ground that she "interfered with [Grissom's] visitation with the parties' children and has failed to arrange counseling between the children and [their father], in willful and contumacious violation and disregard of the Court's previous orders." The trial court found that making the children wards of the court and placing them in the legal custody of the Division of Family Services was in their best interests. The court permitted Losey to retain physical custody of the children so long as she complied with the court's orders. The court ordered bi-monthly counseling sessions between the three oldest children and their parents. Visitation between the children and their father was to resume after the children and their father had completed three joint counseling sessions. The court ordered DFS to arrange, supervise, and monitor visitation and counseling.

Losey filed a motion for a new trial. The trial court denied it, and she filed a notice of appeal.

The children retained Masters and Lewis Pitts as their attorneys. On July 19, 1993, the children filed a motion to intervene in Losey's appeal, but the trial court denied it. The children sought a writ of prohibition in this court, seeking a stay of the contempt order so far as it placed the children in the legal custody of DFS. Grissom moved for dismissal, which was sustained by this court without opinion. ² The children asked for a writ of prohibition from the Missouri Supreme Court. The Supreme Court also dismissed the case without an opinion. ³

On August 16, 1993, Grissom again asked the court to hold Losey in contempt. He alleged that she interfered with his visitation rights and refused to allow the children to attend counseling sessions. The trial court ordered Losey to show cause at a hearing on August 31, 1993, why it should not find her in contempt.

On August 27, 1993, the children asked to intervene in the contempt proceeding and asked for a continuance of the hearing because one of their attorneys, Masters, could not attend the hearing. On August 31, 1993, before the hearing, the children filed a motion to disqualify the trial judge. Also on the morning of August 31, 1993, Grissom filed a motion for sanctions against Pitts and Masters for violating Rule 55.03. ⁴

At the hearing, the trial court denied the children's motion to intervene because "[t]he children do not have authority to employ an attorney." The trial court concluded, "The Motion to Intervene, then, must be dismissed, and of course the Motion to Disqualify, obviously then, is dismissed as well." The trial court found that Masters had a conflict of interest and was not qualified to represent the children. The trial court decided that Pitts, as an out-of-state lawyer, was also disqualified because his appearance depended on Masters' standing as a Missouri lawyer. After hearing evidence, the trial court ordered Pitts and Masters to pay Grissom $200 as a sanction for violating Rule 55.03.

Grissom and Losey entered into a stipulation which the court adopted in its order. ⁵ The trial court ordered transfer of the children's legal custody to Grissom and Losey and gave Losey physical custody. Grissom was to have custody of Nicholas two weekends a month and custody of the other children one weekend a month, as well as visits during holidays. Counseling between Grissom and the three oldest children was to continue at least once a month. Losey agreed to dismiss her appeal of the May contempt order and to pay a debt originally assigned to Grissom in the divorce decree. The trial court waived the civil fine it assessed against Losey pursuant to the May contempt ruling. It ordered law enforcement agencies to assist either party in enforcing the custody agreement. Grissom agreed not to bring another motion for sanctions against his ex-wife.

Pitts and Masters appealed the sanction assessed against them. The children filed a separate appeal. Amicus curiae briefs have been filed by four parties: the National Task Force for Children's Constitutional Rights, the National Association of Counsel for Children, the Center for Constitutional Rights, and the Child Advocacy Law Clinic. Grissom did not file a brief or make oral argument.

The children allege four points of error. ⁶ They contend that (1) the trial court erred in concluding that the children lacked legal capacity to employ an attorney; (2) the trial court's finding that Masters had a conflict of interest was error; (3) the trial court should have transferred the motion to intervene and the motion to disqualify the judge to an unbiased judge; and (4) the trial court erred by not appointing a guardian ad litem.

Pitts and Masters assert error in the trial court's decision to hear and rule on the motion for sanctions and its finding that the attorneys violated Rule 55.03. They also argue that the trial court should have disqualified itself because the court engaged in ex parte communications before the hearing.

The amicus curiae assert one point of error. They contend that the trial court erred in granting the motion for sanctions.

Standing to Appeal

Before addressing the points raised by the children on appeal, we note that Rule 52.02 requires that, when no guardian ad litem has been appointed, civil actions by minors may be commenced only by a next friend. See also § 507.110, RSMo 1986. A next friend is an officer of the court whose duty is to guard the interests of the plaintiff infant. Crawford v. Amusement Syndicate Co., 37 S.W.2d 581, 584 (Mo.1931). Although the children make much of the fact that no guardian ad litem was appointed for them, they continued with their suit without a next friend. This, however, was not made an issue on appeal and was not addressed by the trial court. Even if the children had followed Rule 52.02, we find their claims to be meritless.

The Children's Motions

The children allege that the trial court erred in overruling their motions to intervene, for a continuance, and to disqualify the judge. The court's announced reason for overruling the motions was that the children did not have the capacity to employ counsel or to intervene directly.

As is required of the trial court, we are also primarily concerned with the best interests of the Grissom children. Keeping that in mind, we are required to affirm a trial court's decision if it has any valid basis. We conclude that the trial court correctly overruled the children's motions. We do not rule on the issue pressed by the children that they "have the right to retain counsel to defend them against threats of state action to remove them from their home." We need not reach that issue.

a. Motion to Intervene

We will...