Hazelbaker v. Hazelbaker, ED 101048
| Decision Date | 12 November 2014 |
| Docket Number | No. ED 101048,ED 101048 |
| Citation | 475 S.W.3d 143 |
| Court | Missouri Court of Appeals |
| Parties | William Michael Hazelbaker, Respondent, v. Maria Jenifreda Hazelbaker, Appellant. |
Daniel R. Schramm, Daniel R. Schramm, L.L.C., 121 Chesterfield Business Parkway, Chesterfield, Missouri 63005, Dara M. Strickland, The Strickland Law Firm, 15510 Olive Blvd., Suite 209, Chesterfield, Missouri 63017, for Appellant.
Richard A. Gartner, Jason R. Caudill, The Gartner Law Firm, 220 Salt Lick Road, St. Peters, Missouri 63376, for Respondent.
Maria J. Hazelbaker ("Mother") appeals from the judgment of the trial court modifying the legal and physical custody provisions of a January 17, 2012 dissolution decree. The decree granted Mother and William M. Hazelbaker ("Father") joint legal and physical custody of their minor child, Jenika ("Child"), and named Father the residential parent. Mother filed a motion seeking sole legal and physical custody of Child, and Father filed a cross-motion to modify seeking to restrict Mother's temporary custody and increase her child support obligations. Following a trial on the motions, the trial court granted Father sole legal custody of Child and modified the parties' physical custody periods as set forth in a new parenting plan. On appeal, Mother argues that the trial court erred in admitting the testimony of Dr. Ann Duncan–Hively ("Dr. Duncan–Hively") because the parties' settlement agreement prohibited Father from calling Dr. Duncan–Hively as a witness in any future proceeding concerning the custody of Child. Mother also asserts the trial court erred by failing to appoint a guardian ad litem ("GAL") because Section 452.4231 mandates the appointment of a GAL in any proceeding in which abuse or neglect is alleged. The parties' agreement to preclude Dr. Duncan–Hively as a witness is unenforceable. In addition, the circumstances presented by the parties' motions and evidence did not require the appointment of a GAL. Accordingly, we find no error and affirm the judgment of the trial court.2
Mother and Father were divorced on January 17, 2012. The parties agreed to a marital settlement agreement, which the trial court approved and incorporated into the dissolution decree. The trial court awarded Mother and Father joint legal and physical custody of Child. Father was named the residential parent and Mother was initially awarded only supervised visitation. The trial court retained jurisdiction for four months, during which time Mother was to seek treatment for her obsessive compulsive disorder
with a therapist of her choice and to participate with Father and Child in family therapy with Dr. Duncan–Hively. The order also named Dr. Duncan–Hively as Child's therapist. As the part of their marital settlement agreement, the parties stipulated that "[n]either party nor the minor child shall call Dr. Ann Dell Duncan–Hively as a witness, expert or otherwise, in any future proceedings concerning the custody of the child." The settlement agreement further provided that after three months, Mother would be granted unsupervised visitation and temporary custody under a substituted parenting plan.
Four months later, on May 14, 2012, the trial court amended the judgment nunc pro tunc. Consistent with the parties' settlement agreement, the trial court granted Mother unsupervised visitation and temporary custody pursuant to a substituted parenting plan. The judgment further ordered that no child support would be paid by either party.
On February 26, 2013, Mother filed a two-count motion to modify. Count I sought a change in custody and Count II requested an award of child support. Mother alleged a substantial continuous change in circumstances that required the judgment be modified. Specifically, Mother alleged the following: Father engages in parental alienation and emotional abuse; Father kidnapped child by taking her out of the country without Mother's knowledge; Father coerces Child into lying and tells Child lies about Mother; Father fails to inform Mother about Child's medical appointments and extracurricular activities; and Father tells Mother's family and friends that Mother sexually molested Child. Mother also requested the court to order an alternative therapist for Child, alleging that Dr. Duncan–Hively did not act impartially and that seeing a different therapist would be in Child's best interests.
On May 10, 2013, Father filed a cross-motion to modify. Father requested that the court award him sole legal custody of Child, restrict Mother's temporary custody periods, and require Mother to pay child support.
A trial was conducted on the parties' motions on July 9, July 10, and August 6, 2013. At trial, Father called Dr. Duncan–Hively as a witness. After Dr. Duncan–Hively answered three questions, Mother objected to allowing testimony from Dr. Duncan–Hively, citing the stipulation in the parties' settlement agreement prohibiting any party from calling Dr. Duncan–Hively as a witness in any future proceeding concerning the custody of Child. The trial court overruled the objection on the ground that the provision excluding Dr. Duncan–Hively as a witness was unenforceable.
The trial court issued its findings of fact, conclusions of law, and judgment on the parties' cross-motions to modify on October 11, 2013. The judgment awarded Father sole legal custody and modified the physical custody schedule pursuant to a new parenting plan. Both parties' requests for child support were denied. On November 7, 2013, Mother filed a motion for a new trial, or in the alternative, to amend the modification judgment. In her motion, Mother asserted that the trial court erred in allowing Dr. Duncan–Hively to testify and in failing to appoint to a GAL.
The trial court did not rule on Mother's post-trial motion within ninety days. Thus, under Rule 81.05(a)(2),3 Mother's motion was deemed overruled and the judgment became final on February 5, 2013. Mother now appeals.
Mother presents two points on appeal. First, Mother asserts that the trial court erred in allowing Dr. Duncan–Hively to testify in the custody modification trial in contravention of the parties' settlement agreement which expressly prohibited Father from calling Dr. Duncan–Hively as a witness in any future proceeding concerning the custody of Child. Second, Mother argues that the trial court erred in failing to appoint a GAL sua sponte because Section 452.423.2 mandates the appointment of a GAL in any proceeding in which abuse or neglect is alleged. Mother contends that both parties alleged neglect and abuse in the modification trial and thus appointment of a GAL was required.
In a court-tried case, the trial court's judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We view the evidence and permissible inferences drawn therefrom in the light most favorable to the judgment. Hightower v. Myers , 304 S.W.3d 727, 732 (Mo. banc 2010). We give even more deference to the trial court's judgment in a custody matter than in other matters. Id.
We review a trial court's decision to appoint a GAL for an abuse of discretion. Soehlke v. Soehlke, 398 S.W.3d 10, 16 (Mo. banc 2013). An abuse of discretion occurs when the trial court's ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. Giddens v. Kansas City S. Ry. Co., 29 S.W.3d 813, 819 (Mo. banc 2000).
Mother first argues that the trial court erred in allowing Dr. Duncan–Hively to testify in violation of the parties' marital settlement agreement. In support of her argument, Mother maintains that the terms of a separation agreement are binding upon the court unless the court finds that the agreement is unconscionable. At the time of the divorce, the trial court did not find the parties' settlement agreement unconscionable and incorporated the agreement into its dissolution decree. Therefore, Mother reasons, the term prohibiting either party from calling Dr. Duncan–Hively as a witness should have been enforced by the trial court at trial.
Father suggests, inter alia , that the provision in the parties' settlement agreement regarding Dr. Duncan–Hively is unenforceable because the provision is contrary to public policy. Father argues that precluding the testimony of Child's therapist runs afoul of the important public policy of resolving child custody issues based upon the best interests of the child. Because the trial court had to determine whether Child's best interests were served by continuing treatment with Dr. Duncan–Hively, Father reasons that Dr. Duncan–Hively's testimony was vital to the case and was properly admitted. We agree.
Missouri law expresses a clear and resolute policy that the trial court has a duty to determine custody in accordance with the best interests of the child. Section 452.375(2). In making this determination, the trial court must consider all relevant factors, including:
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