Harrison v. King

• Citation: 7 S.W.3d 558
• Parties: (Mo.App. E.D. 1999) . Reginald Basil Harrison, Respondent, v. Susan Denise (Harrison) King, Appellant. Case Number: ED75416 Missouri Court of Appeals Eastern District Handdown Date:
• Decision Date: 30 November 1999
• Court: Court of Appeal of Missouri (US)

7 S.W.3d 558 (Mo.App. E.D. 1999)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Reginald Basil Harrison, Respondent, v. Susan Denise (Harrison) King, Appellant.

Case Number: ED75416

Missouri Court of Appeals Eastern District

Handdown Date: 11/30/99

Appeal From: Circuit Court of Cape Girardeau County, Hon. Gary A. Kamp

Counsel for Appellant: Kenneth C. McManaman

Counsel for Respondent: Elizabeth H. Heisserer

Opinion Summary: Susan Denise (Harrison) King (mother) appeals the circuit court judgment denying her motion to disqualify a guardian ad litem pursuant to section 452.423.1 RSMo Cum. Supp. 1998. Mother claims she was entitled to disqualify the guardian ad litem as a matter of right under the newly-enacted statute pursuant to her timely filed written application.

AFFIRMED AS MODIFIED.

Southern Division holds: The trial court erred in refusing to disqualify the guardian ad litem in response to the mother's timely motion. Pursuant to Rule 84.14, this Court modifies the amended judgment to disqualify the guardian ad litem as of the date the mother's motion was presented to the trial court for decision. In all other respects, the judgment is affirmed.

Opinion Author: Lawrence G. Crahan, Judge

Opinion Vote: AFFIRMED AS MODIFIED. Rhodes Russell, C.J., and Crane, J., concur.

Opinion:

Susan Denise (Harrison) King (hereinafter "Mother") appeals the judgment of the Circuit Court of Cape Girardeau County denying her motion to disqualify a guardian ad litem pursuant to section 452.423.1 RSMo Cum. Supp. 1998.¹ Mother claims she was entitled to disqualify the guardian ad litem as a matter of right under the newly-enacted statute pursuant to her timely filed written application.

The record reveals that Reginald Basil Harrison (hereinafter "Father") filed a motion to modify a visitation order made pursuant to a decree of dissolution on April 6, 1998. The trial court appointed Elizabeth Chastain ("Guardian") as guardian ad litem for the proceedings on June 29, 1998. On August 4, 1998, the court heard evidence on Father's motion to modify and the matter was taken under advisement. On August 13, 1998, the guardian ad litem filed her report, which was ultimately adopted by the trial court and incorporated into its initial judgment entered on August 14, 1998.

Meanwhile, the Governor signed into law amendments to the Family Law Act, which became effective on August 28, 1998. On September 3, 1998, Mother filed a motion for new trial, as well as a motion to disqualify the guardian ad litem pursuant to the newly enacted section 452.423.1.² A hearing was held on the pending motions and additional evidence was taken by the court on November 3, 1998. An amended judgment and decree was entered by the court on November 6, 1998, modifying a portion of its earlier judgment and denying Mother's motion to disqualify the guardian ad litem. This appeal followed.

Our standard of review is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976). We will sustain the judgment of the trial court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Id.

In her only point on appeal, Mother claims the trial court misapplied the law when it denied her motion to disqualify the guardian ad litem pursuant to newly amended section 452.423.1. Mother argues that her written application was filed within the time constraints established by the statute, and therefore she was entitled under the plain wording of the statute to disqualify the guardian ad litem once as a matter of right. The trial court, however, denied the motion stating that "it was not equitable to allow the parties to litigate their differences and after Respondent [Mother] receives a result she is not satisfied with to disqualify the Guardian Ad Litem."

The parties³ admit in their briefs, and independent research confirms, there is no current case law addressing this particular amendment to the statute. Therefore, this court must interpret the applicable statutory provision by determining the legislature's intent when it enacted the statute.

Initially, we note that construction of a statute is a question of law, not judicial discretion. Delta Air Lines, Inc. v. Director of Revenue, 908 S.W.2d 353, 355 (Mo.banc 1995). As such, it falls within this court's province of independent review and correction, and consequently, no deference is given the trial court's determination of the law. Barry Serv. Agency Co. v. Manning, 891 S.W.2d 882, 887 (Mo.App. 1995).

When interpreting a statute, our primary role is to ascertain the intent of the General Assembly from the language used in the statute and, whenever possible, give effect to that intent. Sullivan v. Carlisle, 851 S.W.2d 510, 512 (Mo.banc 1993). In determining legislative intent, the words used in the statute are to be considered in their plain and ordinary meaning. Trailiner Corp. v. Director of Revenue, 783 S.W.2d 917, 920 (Mo.banc 1990). Where the language of a statute is clear and unambiguous, we will give effect to the language as written and will not resort to statutory construction. M.A.B. v. Nicely, 909 S.W.2d 669, 672 (Mo.banc 1995).

The statutory provision in effect at the time Father's motion to modify was filed and initially heard by the trial court on August 8, 1998, provided in relevant part:

452.423. Guardian ad litem, appointed, when, duties-fees-volunteer

advocates, expenses

1. 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.

Our courts interpreted this section as giving the trial court discretion whether or not to remove a guardian ad litem from the proceedings. See Guier v. Guier, 918 S.W.2d 940 (Mo.App. 1996)(removal of guardian ad litem is matter within sound discretion of appointing court); K.S.H. v. D.J.H., 891 S.W.2d 144 (Mo.App. 1995)(trial court did not err by denying motion of father to remove guardian ad litem even though father alleged guardian refused to contact witnesses with relevant evidence and held predetermined opinion regarding factual disputes).

As noted above, however, section 452.423.1 was subsequently amended effective August 28, 1998, to add the following language:

Disqualification of a guardian ad litem shall be ordered in any legal proceeding only pursuant to chapter 210, RSMo, or this chapter, upon the filing of a written application by any party within ten days of appointment, or within ten days of August 28, 1998 if the appointment occurs prior to August 28, 1998. Each party shall be entitled to one disqualification of a guardian ad litem in each proceeding, except a party may be entitled to additional disqualifications of a guardian ad litem for good cause shown.

This was the language in effect at the time Mother filed her motion for new trial and motion to disqualify the guardian ad litem on September 3, 1998. Mother argues that the trial court was therefore without discretion to...