Herndon v. Tuhey

• Decision Date: 29 June 1993
• Docket Number: No. 75184,75184
• Citation: 857 S.W.2d 203
• Parties: Robert J. HERNDON and Sara J. Herndon, Plaintiffs-Respondents, v. Randy Lee TUHEY and Ann Janette Tuhey, Defendants-Appellants.
• Court: Missouri Supreme Court

Page 203

857 S.W.2d 203

62 USLW 2063

Robert J. HERNDON and Sara J. Herndon, Plaintiffs-Respondents, v. Randy Lee TUHEY and Ann Janette Tuhey, Defendants-Appellants.

No. 75184.

Supreme Court of Missouri En Banc.

June 29, 1993.

Mark E. Gardner, Springfield, for defendants-appellants.

Richard L. Schnake, Springfield, Larry W. Meyer, Aurora, for plaintiffs-respondents.

THOMAS, Judge.

Cody Christopher Tuhey, age ten, descended from strong, proud stock. Cody is the son of Ann and Randy Tuhey and the grandson of Ann's parents, Robert and Sara Herndon. A neutral observer might describe his parents and grandparents as resolute, strong-willed, tenacious and persevering. A different observer, equally neutral, might describe the same characteristics as obstinate, inflexible, unyielding, and even stubborn or hardheaded. The truth is that all of these terms may accurately describe the various parties at one time or another. These personalities and character traits have combined with a series of events and have caused the parents and grandparents to be alienated from each other and, more importantly, have resulted in Cody and his grandparents being isolated from each other. This unfortunate situation has culminated in this action brought by the grandparents against Cody's parents seeking visitation rights with Cody under section 452.402, RSMo Supp.1992. The conclusion we reach today demonstrates once again that the law is very inadequate when it comes to solving the personal problems of an embattled family. We tender the warning that the very best remedy this Court could hope to provide is feeble indeed in comparison to the solution the parties would reach if they were successful in solving this problem by mutual agreement. Having acknowledged the inadequacy of the remedy the parties seek, we move on to consider the issues presented.

Ann and Randy Tuhey were married in December 1981. At that time, Randy had two other sons from a previous marriage. Cody Christopher Tuhey was born on November 24, 1982.

Randy and Ann Tuhey have lived in Marionville, Missouri, since their marriage in December 1981. Robert and Sara Herndon have always lived in Marionville, and their business, Herndon's Orchard, is located there. After the Tuheys married, Randy worked at Herndon's Orchard for eight years. In the last year and a half that Randy was employed at the orchard, the Herndons became dissatisfied with Randy's work. During this same period of time, Randy felt pressure and stress from what he viewed as consistently conflicting instructions from the Herndons. He felt that if he followed Mrs. Herndon's orders he was criticized by Mr. Herndon, and if he followed Mr. Herndon's orders, he was criticized by Mrs. Herndon. Although the Herndons did not find Randy's work to be satisfactory the last year and a half of his employment, Randy was never advised by the Herndons that his work was unacceptable. Indicative of the fact that communications between the Herndons and Randy were strained, when the Herndons decided to terminate Randy's employment in February of 1990, Mrs. Herndon told Ann to inform Randy that his employment at the orchard had been terminated.

The Tuhey's marriage began to deteriorate, and in May 1990 the two separated; Ann filed for dissolution of the marriage. During this separation Cody lived with his mother and visited his father. Prior to August 1990, the testimony before the trial court shows Cody had a close relationship with his grandparents. Cody spent a great deal of time with his grandparents at the orchard from preschool age and continued after he began attending elementary school. After school, Cody would get off the bus at the orchard, and his grandparents would care for him until either Randy or Ann would come to pick him up. There was considerable testimony that Cody would help his grandparents around the orchard, that his grandmother would take him to "story time" at the public library, that his grandfather coached Cody's basketball team, that his grandparents attended all of Cody's sporting events, that his grandmother taught Cody's Sunday school class, that the families would go on trips together, and that large family gatherings would occur on holidays.

An unfortunate incident occurred in August 1990 while Randy and Ann were still separated. Ann was living near the orchard, and Randy was living in a trailer in Marionville. On the date of this occurrence, Cody was scheduled to spend the weekend with his father, but Cody had indicated he did not wish to do so. Mrs. Herndon requested of Ann that Cody be left with the Herndons for the weekend. Ann explained the visitation arrangement and then took Cody to Randy's trailer. Later, Ann returned to the Herndons' house to pick up Cody's bicycle. At this time, Mrs. Herndon questioned Ann about taking Cody to Randy when he did not want to go; an argument ensued, with Mrs. Herndon uttering profanities about Randy. Ann then became angry, struck her mother, and left the premises. Mrs. Herndon returned to her house, was upset, and explained to Mr. Herndon what happened. Mr. Herndon became upset and decided to confront Randy. The Herndons drove to Randy's trailer at a high rate of speed and went onto the property uninvited. The evidence was conflicting as to what happened next. The court found that Ann and Mrs. Herndon engaged in a shoving match. There was a physical altercation between Mr. Herndon and Randy in which Mr. Herndon sustained a broken nose, and Randy suffered severe bruising to his chest. Since that occurrence in August 1990, the Tuheys have refused to allow the Herndons to have visitation with Cody, and there has been no significant contact between Cody and his grandparents.

After the argument and physical altercation in August 1990, Randy and Ann reconciled, and the action for dissolution was dismissed. The Herndons and the Tuheys, however, did not reconcile, and three lawsuits concerning different disputes were instigated. In the first lawsuit filed, the Herndons sought to recover $16,000 plus interest from the Tuheys for a loan the Herndons made to the Tuheys approximately four years earlier for the purchase of a home. Prior to the filing of this lawsuit, the Herndons had not requested any payment of either principal or interest. The Herndons were aware that at the time they brought this suit the Tuheys were not financially able to pay off the loan. The trial court found that, while the Tuheys believed this suit was brought to bring pressure upon them, the Herndons were legally within their rights to protect their financial interest. The suit was compromised by a note secured by a deed of trust on the Tuhey's home.

In November 1990, the Tuheys filed the second lawsuit, a small claims action against the Herndons seeking the return of cattle that had been taken to the Herndons for breeding purposes. The court ruled for the Tuheys.

The last lawsuit was the petition in the present case by the Herndons seeking visitation with Cody under section 452.402. This petition was filed on February 4, 1991, in the Circuit Court of Lawrence County. The Tuheys denied all material allegations. In their answer, the Tuheys also challenged the constitutionality of section 452.402.

The trial court held that section 452.402 is not unconstitutional and made a specific finding that "visitation by [the Herndons] would be in Cody's best interest and such visitation would not endanger Cody's physical health or impair Cody's emotional development." The court ordered that the Herndons have visitation with Cody the first and third Saturday of each month from 9:00 a.m. until 6:00 p.m. This visitation was to commence as of November 16, 1992. The visitation schedule for these monthly visits was to be altered effective March 1993, so that the Herndons would have visitation on the first Saturday of each month from 9:00 a.m. until 6:00 p.m. and an overnight visitation on the third weekend of each month from 1:00 p.m. on Saturday until 6:00 p.m. Sunday. The trial court also ordered visitation for five hours either on Thanksgiving day or, at the option of the Tuheys, the Sunday following Thanksgiving. For Christmas, the grandparents are allowed visitation each December twenty-third from 5:00 p.m. until 10:00 p.m. The Herndons are also given visitation with two consecutive days including an overnight stay during Cody's Christmas vacation. During summer vacation the Herndons are given visitation for one week between June 15 and August 15 each year. In addition, the parents must notify the Herndons of all school, social, and athletic activities in which Cody is participating that grandparents would reasonably be expected to attend.

The Tuheys appealed the trial court's decision to the Court of Appeals, Southern District. The court of appeals transferred the case to this Court by reason of the constitutional issue. Three issues are presented on appeal. First, whether section 452.402 is unconstitutional because it violates the First and Fourteenth Amendments of the United States Constitution. Second, if section 452.402 is constitutional, whether the visitation granted in this case was excessive. Third, if section 452.402 is constitutional, whether the trial court erred in allowing visitation in this case because the evidence shows that compulsory grandparent visitation would have a negative impact on the emotional and psychological development of Cody.

The primary question presented in this case is whether the following subsections of section 452.402 are constitutional:

1. The court may grant reasonable visitation rights to the grandparents of the child and issue any necessary orders to enforce the decree. The court may grant grandparent visitation when:

* * * * * * (3) A grandparent is unreasonably denied visitation with the child for a period exceeding ninety days.

2. The court shall determine if the visitation by the grandparent would be in the child's best interest or if it...