Hamilton v. Hamilton, 42754
| Decision Date | 16 June 1981 |
| Docket Number | No. 42754,42754 |
| Citation | 622 S.W.2d 252 |
| Parties | Sandra Lee HAMILTON, Appellant, v. Rockey Allen HAMILTON, et al., Respondents. |
| Court | Missouri Court of Appeals |
Anthony L. Anderson, Anderson, Preuss & Zwibelman, Clayton, for appellant.
This case involves an appeal by wife from a second amended dissolution decree which awarded to the paternal grandparents the right of weekend visitation with their minor grandchild.
The parties were married on November 19, 1977 and a son was born of the marriage the next year. On February 6, 1979, wife, by and through her father, as next friend, filed a petition for dissolution of marriage. A number of motions were filed, including a motion by the paternal grandparents who had intervened to request temporary custody of the child at certain designated times. On October 4, 1979, a hearing was held on this motion at which time the court granted temporary visitation to the paternal grandparents. A final hearing on the dissolution of marriage was held on November 29, 1979. The court announced its judgment from the bench and included therein the following order:
The Court awards temporary visitation to the paternal grandparents in accordance with the statute on the 1st and 3rd Saturday of each and every month from 10:00 a.m. on that Saturday until 6:00 p.m. on that Saturday. During the visitation period the paternal grandparents are hereby permitted to remove the child from the custodial home ....
On November 30, 1979, the circuit judge signed and sent to the attorneys of the parties the following memorandum NOW ON THIS 30 day of Nov., 1979, the Court does amend that portion of the Decree issued November 29, 1979, in the above entitled cause stating:
'The Court awards temporary visitation to the Paternal Grandparents Hamilton on the 1st and 3rd Saturday of each and every month at 10:00 A.M. to 6:00 P.M. on Saturday,'
to read:
The Court awards visitation with the child to the Paternal Grandparents Hamilton on the 1st and 3rd weekend of each and every month from 10:00 A.M. Saturday to 5:00 P.M. Sunday.
Wife complains that the court had no jurisdiction to amend the dissolution decree without giving her prior notice and an opportunity to be heard. She relies on Caldwell Paint Mfg. Co. v. LeBeau, 591 S.W.2d 1 (Mo.App. 1979). There, the court in a default judgment case stated:
It is settled law in this State that although the trial court retains control over judgments during the 30 day period after entry of judgment and may vacate, reopen, correct, amend or modify said judgment for good cause within that period of time, Rule 75.01, the power and jurisdiction to do so is subject to the qualification that the party to be adversely affected be given reasonable notice and an opportunity to be heard on the factors inducing the court's intended action.
Wife's complaint is without merit. Subsequent to the court's issuance of its memorandum order amending the dissolution decree, wife filed a motion for a new trial, or for an order amending the amended decree. A hearing was held on the motion and subsequently, at a time while the court still retained jurisdiction over the case, it entered a second amended decree which contained the weekend visitation order. As a part of this entry appears a separate order overruling wife's motion.
Clearly, the second amended decree from which wife appeals is one in which she had notice and an opportunity to be heard prior to final entry.
Wife's second and principal complaint concerns § 452.400(3), RSMo 1978, under which the court awarded visitation rights to the paternal grandparents. Wife argues that the word "visitation," as used in this subsection, does not permit the court, upon substantial evidence, to award to the grandparents the right to remove a child from the custodial home or presence of the custodial parent, for a period extending overnight. Wife further argues that the court's award to the grandparents of visitation rights was actually an award of temporary custody which is beyond the purview of the statute.
Section 452.400, RSMo 1978, states:
1. A parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger the child's physical health or impair his emotional development.
2. The court may modify an order granting or denying...
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C--- E--- R---, Matter of, 16789
...prescribed by the trial court she is getting custody rather than visitation. That contention has no merit. See Hamilton v. Hamilton, 622 S.W.2d 252, 254 (Mo.App.1981); Barry v. Barrale, 598 S.W.2d 574, 581-582 (Mo.App.1980) (both cases allowing overnight "visitation"). See also Doe "A" v. S......
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Keith v. Keith, 14155
...573 (Mo.App.1984). Overnight visits may be a part of "reasonable visitation rights" within the meaning of § 452.400, Hamilton v. Hamilton, 622 S.W.2d 252 (Mo.App.1981); Barry v. Barrale, 598 S.W.2d 574 (Mo.App.1980), and thus not governed by the provisions of § 452.410 which require certain......
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Kesler v. Kesler
...child's best interest or if it would endanger the child's physical health or impair his emotional development. In Hamilton v. Hamilton, 622 S.W.2d 252, 253 (Mo.App.1981), paternal grandparents filed a motion to intervene in a dissolution proceeding and requested visitation rights pursuant t......