Guier v. Guier, WD

• Decision Date: 02 April 1996
• Docket Number: No. WD,WD
• Citation: 918 S.W.2d 940
• Parties: Kenneth E. GUIER, Appellant, v. Marcia A. GUIER, Respondent, Guardian Ad Litem, Respondent. 51670.
• Court: Missouri Court of Appeals

Page 940

918 S.W.2d 940

Kenneth E. GUIER, Appellant, v. Marcia A. GUIER, Respondent, Guardian Ad Litem, Respondent.

No. WD 51670.

Missouri Court of Appeals,

Western District.

April 2, 1996.

Appeal from the Circuit Court of Saline County; The Honorable Robert H. Ravenhill, Judge.

Bruce A. Bailey, Warrensburg, for appellant.

James A. Rahm, Carrollton, for respondent Marcia Guier.

Edward B. McInteer, Marshall, guardian ad litem.

Before FENNER, C.J., P.J., and LOWENSTEIN and SMART, JJ.

FENNER, Chief Judge.

Kenneth E. Guier ("Father") appeals from the trial court's order denying his motion seeking a modification of a dissolution of marriage judgment regarding the custody of minor children born to his marriage with respondent, Marcia A. Guier ("Mother"). Father claims that the trial court erred by applying the wrong standard of review in denying his motion for modification of child custody, in determining that Father had not proved by a preponderance of the evidence that there had been a chance of circumstances and that modification was not necessary to serve the best interests of the child, in overruling Father's motion to remove the guardian ad litem, in failing to require the guardian ad litem to make a recommendation to the court on the issues involving the children, and in granting judgment against Father in the amount of $3,580.00 to pay the guardian ad litem and counselor's fees.

The facts presented to the court by the parties are considerable and typical of a marital dissolution proceeding filled with animosity. We recite the pertinent facts with as much brevity as possible.

The marriage of Father and Mother ended in a decree of dissolution on July 8, 1991. Joint legal custody of the two minor children, Karla Ann Guier ("Karla") and Robert Lee Guier ("Bobby") was granted to the parties with Mother receiving primary physical custody subject to Father's right of reasonable and specific visitation. Edward B. McInteer served as the guardian ad litem in the dissolution proceeding.

Father filed an amended motion for modification on November 30, 1994, seeking a change of custody and alleging physical and emotional abuse by Mother, failure to obtain counseling for the children, failure to obtain proper medical care for Bobby, and alienation of the parent-child relationship in violation of the joint legal custody order. McInteer was again appointed as the guardian ad litem for the children.

At the trial of Father's motion to modify, Mother was called as his first witness. Mother testified that after the dissolution she moved to Cainsville, Missouri, to teach in the school district there. While in Cainsville, Bobby was involved in an incident at school which Father terms "aggressive" conduct. Mother states that Bobby's teacher mentioned he was playing too rough with some of the children on the playground, she spoke to him, and Bobby's behavior improved. Mother stated that incidents of this type behavior were usually more pronounced after Bobby returned from visiting his father, but that his behavior improved after Father had a talk with him.

Mother also testified that Bobby had a problem wetting the bed after the divorce, but denied that Bobby had a problem wetting his pants or defecating in his clothing immediately after the divorce as alleged by Father. Mother testified that the problem with defecating in his clothing arose in September of 1994. Father alleged that Mother punished Bobby for soiling his pants by spanking him, hitting him with a fly swatter, and striking him with a belt hard enough that she checked to see if she had left marks on his buttocks. Mother admitted that she sometimes had a problem with anger, had spanked Bobby and struck him with a fly swatter when he had jeans on, but denied striking him with a belt hard enough to leave welts.

Father and Father's current wife testified as to conversations with Karla in 1992 in which Karla said that Mother spanked her so hard that she had welts on her legs that they had to put cream on and that she had to wear long pants to school until the welts disappeared. This incident was denied by Mother. Karla also reportedly said that Mother had slapped her on occasion since the divorce and that Mother had pulled her hair after a misunderstanding with Karla. Mother denies pulling Karla's hair, but cannot recall if she ever slapped Karla. The maternal grandmother of the children testified that both children told her that Father spanks them--Bobby for wetting or soiling the bed or his pants and Karla for not sleeping in her own bed. Father denies spanking the children.

Father's case also included allegations that Mother had called Karla an "idiot," Bobby a "shit," and that she had cursed Father in front of the children. Mother admitted that there was one telephone conversation in which she had cursed Father over the phone and stated that Father had cussed her in front of the children as well. Mother also admitted to making other derogatory statements about Father in front of the children. When Mother asks the children about what Father says about her, she states that they "clam up" and act like they are afraid to talk.

Both parents also testified as to Bobby's ear problem and a dispute over the provision of custom ear plugs for Bobby's summer visitation with Father in 1993. Bobby was to take part in a swimming program and he needed ear plugs in order to avoid illness or damage to his ears from swimming. Mother had ordered custom ear plugs and had not received them at the time custody was transferred for the summer, but stated she would send them when she received them. Mother received the custom plugs in mid-June, but did not send them to Father. Father blames this failure for the problems Bobby experienced with his ears later that summer. Mother claims she was unable to send the ear plugs because after visiting her parents one weekend, she was unable to return to her home in Cainsville because of the severe flooding the area experienced during the summer of 1993. Mother was also attending summer school in Maryville, Missouri that summer and was unable to return home during part of that period. Mother testified that Father was well aware of Bobby's condition and that it would have been easier for him to go to Liberty, Missouri, and have another set made than for her to return to Cainsville given the conditions.

Father also complains of an incident where a small amount of blood appeared on Bobby's pillow one morning. Father complains because Bobby did not immediately see a doctor. Mother responded that the blood on the pillow was a tiny drop, she did not see the blood until Bobby's teacher pointed out some dried blood on his ear to her at lunch that day, and even then it looked as if he had scratched his ear. She took no action because Bobby had an appointment already scheduled with the doctor the next day. The doctor's diagnosis was that of a broken blood vessel in the ear and it was of no great concern to him.

Father also points to alleged disciplinary problems involving Karla as a "change of circumstances" providing grounds for a modification of custody. Father claims that Karla experienced disciplinary problems in school while in Cainsville and that her teacher reported that she spent a lot of time "day dreaming in her own little world." Karla was sent to the principal's office twice while at Cainsville, though on one of these occasions the principal was helping Karla with an assignment she was having trouble with or that she and the teacher did not agree about.

The testimony also revealed that both parties took the children to counselors without advising the other until after the fact. Father took Karla to Dr. Kitto after her alleged disciplinary problems at school in Cainsville. Father told Mother Karla had been diagnosed with Attention Deficit Disorder ("ADD") by Dr. Kitto after she confronted him with a bill she received from the doctor's office. Father assured Mother he would have the records confirming the diagnosis sent to her, but never did. Mother did not tell Karla's teacher of the diagnosis because she questioned the truth of Father's statements. After Father met with Karla's teacher and told her of the diagnosis, the school acquired the records confirming the diagnosis.

Mother took Karla to Mr. Roger Bryan in 1992. Mr. Bryan advised Mother that Karla was suffering from separation anxiety and depression. Mother did not follow up with further counseling as recommended by Mr. Bryan because of her work schedule and a fear of losing her job if the school found out about the counseling.

After one year in Cainsville, Mother moved with the children to Bosworth, Missouri. Karla's teacher at the time of trial testified that Karla did not exhibit any symptoms to her of ADD and that Karla was the top student in her class and definitely not a behavior problem. Karla had been named student of the month for April (an achievement overshadowed by Father and Mother's debate over why Father wasn't told of the honor by Mother, who assumed Karla had told him). Bobby's teacher testified that he was a normal, average kid with slightly above average scholastic abilities. The only time she noticed any problem with Bobby's behavior was near a previous hearing date, but that after the hearing date was canceled he was a different child.

In addition to allegations directly involving the children, the evidence reveals several other incidents involving Father and Mother since the initial dissolution that illustrate their continuing inability to effectively communicate. Father claims that Mother, when upset with his actions, would threaten him with the withdrawal of visitation rights. During a conversation after Mother moved to Cainsville, some 128 miles from Father's residence, Father requested that Mother meet him half-way for the weekend visitation exchanges and received the response that it was "[his] problem, that [he] had started this mess, and...