Hord v. Morgan, WD
Decision Date | 04 April 1989 |
Docket Number | No. WD,WD |
Citation | 769 S.W.2d 443 |
Parties | Linda L. Morgan HORD, Respondent, v. Melvin L. MORGAN, Appellant. 40770. |
Court | Missouri Court of Appeals |
Lois M. Zerrer, Springfield, for appellant.
Harold Kyser, Butler, for respondent.
Before FENNER, P.J., and SHANGLER and BERREY, JJ.
Appellant Melvin L. Morgan, the father herein, appeals from an order of the trial court modifying provisions of an original divorce decree between himself and Linda L. Morgan (now Hord), the mother herein. The portions of which Melvin complains relate to the modification of an award of joint custody of the parties' minor children, Travis Floyd Morgan and Tracy Marline Morgan, to sole custody in Linda and the modification of the visitation provisions which reduced the summer visitation of Melvin.
The marriage of the parties was dissolved on August 31, 1983, in the District Court of Montgomery County, Kansas at Coffeyville. At that time the parties were awarded joint custody of their minor children, Travis, born August 21, 1976 and Tracy, born February 21, 1980. Linda was given primary physical custody from the seventh day before school began in August to the seventh day following the last school day in May of each year. Thus, Melvin was given primary custody from the seventh day after the last day of school in May until the seventh day before school started in August of each year. The parties were given reasonable rights of visitation when the children were in the custody of the other parent, upon 24-hour actual notice. Said reasonable rights of visitation, included, but was not limited to, every other weekend, from 8:00 p.m. on Friday to 7:00 p.m. on Sunday, and alternate school holidays, school vacations, children's birthdays and the 4th of July. Pursuant to the visitation schedule each party was to deliver the children to and pick them up from the other party at the Downtowner Motel in Fort Scott, Kansas, or such other place as the parties would agree on.
Presently, Linda is remarried to Jimmy Hord and lives in Clinton, Missouri. Melvin is single. Following the death of his father in 1984, he moved to Welch, Oklahoma and currently resides on his mother's farm.
A short time after the dissolution, problems began to arise between the parties with regard to visitation and child support. The record contains numerous allegations by both parties as to the misconduct of the other. A lengthy recitation of these allegations however, need not be advanced herein.
The court order appealed from reduces Melvin's visitation rights to at least one weekend per month and on alternate holidays. The parties were ordered to deliver the children to the other's home. Melvin is to have six weeks visitation. Substitute visitation is to be provided if inclement weather interferes. Pursuant to the order, joint custody was changed to sole custody in Linda.
On appeal, Melvin contests the change from joint custody to sole custody in Linda and the reduction in visitation. Initially, it should be noted that the situation herein does not arise out of a problem concerning Melvin's parental relationship with his children. Rather, the modification was sought on the grounds of inconvenience and time allocations in that the children were required by the original decree to travel 400 miles for each visitation, thus causing them extreme hardship and on occasion causing them to be ill or extremely tired and to miss school as a result.
Melvin presents five points on appeal, the first of which avers that the trial court erred in admitting certain statements of witnesses into evidence because said statements constituted inadmissible hearsay. He cites to at least nine instances where he alleges said hearsay testimony was improperly introduced. The complained of testimony was heard from Linda Hord, Barbara Kutcha, Linda's friend, and Martha Harbough, Linda's mother. However, a review of the record reveals only two instances, both involving the testimony of Barbara Kutcha, where objections were raised to the complained of testimony.
It is an elementary principle of law that matters complained of must be preserved for review by objection. State ex rel. Williams v. Williams, 609 S.W.2d 456, 460 (Mo.App.1980). Where, as here, such matters are not preserved they will not be considered on appeal. Thus, this court is limited to the properly preserved complaints regarding the testimony of Barbara Kutcha.
Barbara Kutcha, as previously stated, was a friend of Linda Hord. Ms. Kutcha had a Bachelor of Science degree in Communications in 1985 and 1986 during the time that she testified she counseled the children. In 1986 she received a Master's Degree in Counseling. According to her testimony, Ms. Kutcha saw the children off and on for about a year and a half in a counseling type situation. She stated that Travis had some confusion about the roles of his parents and with Tracy "the big thing was actually the trip." Over objection, Ms. Kutcha was allowed to testify as to things Travis had told her regarding statements made by Melvin to Travis about Linda. In pertinent part her testimony was as follows:
"Q. Okay. And who would make those statements?
A. His father.
Q. And what type of statements were they?
A. Statements, Along that line. That is about as specific as I can get."
Ms. Kutcha was also asked as to her awareness of some bruises that Travis had. Again, over objection, she testified as to statements Travis made concerning the bruises. She stated that Travis told her that he had been punished by his father and that the bruises occurred from that punishment.
Appellant correctly cites authority for the proposition that in modification actions, testimony concerning a child's statements to a witness are purely hearsay and generally are properly excluded from evidence. In Dagley v. Dagley, 270 S.W.2d 553 (Mo.App.1954), the mother and grandmother were allowed to testify at trial as to conversations they had with the child following the child's return from the father's home. The child had related facts regarding improper care and treatment, according to the mother's and grandmother's testimony. The Court of Appeals found this testimony to be a clear violation of the hearsay rule and in making its own findings would disregard such evidence. Id. at 558. In M v. G, 301 S.W.2d 865 (Mo.App.1957), statements made by a 12 year old child to witnesses concerning alleged mistreatment of the child by her mother and stepfather were found to be incompetent hearsay evidence. The Court found that the evidence should have been excluded and could not be considered by the reviewing court on appeal.
Likewise, the more recent case of C.R.K. v. H.J.K., 672 S.W.2d 696 (Mo.App.1984), reiterates the proposition that in modification actions, testimony concerning a child's statements to a witness is purely hearsay and where admitted for truthfulness, is done so wrongfully. In C.R.K., the father's visitation rights were severely restricted by the trial court following a finding that he was a sexual abuser of his own child. The Court of Appeals found the evidence to be insufficient in that case because the only evidence in the record concerning the child's statements and asserted acts was hearsay and inadmissible for any purpose. Id. at 698. The Court, however, stated that the admission of improper evidence is not ordinarily a ground for reversal in a non-jury case where it does not appear to have played a critical role in the court's decision. Id.
In the present case, the complained of hearsay testimony does not appear to have played a critical role in the court's decision to modify the custody decree. Rather, the simple fact that the children were forced to travel some 400 miles every other weekend pursuant to the prior decree, in and of itself appears to have been the critical factor in the court's decision.
The children were subject to frequent shifts of custody between their divorced parents who resided in separate and non-adjoining cities, a situation not in their best interest. See, Taylor v. Taylor, 548 S.W.2d 866, 868-869 (Mo.App.1977). Thus, the best interest of the children being the critical factor, it cannot be said that the trial court erred in improving what was once a detrimental situation by modifying the custody decree.
Appellant's point I is denied.
It is also worthy of note that in dealing with custody matters there can be legitimate and relevant reasons for the trial court to have before it evidence of what children are saying to others concerning their relationship with their parents, i.e., other than for the truthfulness of what has been said. The trial court judge can receive this evidence, in the nature of background information, in an effort to determine whether to exercise its discretion to conduct an in-chambers interview with the children pursuant to § 452.385, RSMo 1986. If the court then feels that the best interest of the children requires an interview this evidence can assist the court in conducting a meaningful interview.
Further, a recent trend toward increased flexibility regarding the admission of statements made by a child to others is illustrated by the court in In re Marriage of P.K.A., 725 S.W.2d 78 (Mo.App.1987), which is cited by both parties in their briefs.
In P.K.A. the appellant/father challenged the admissibility of statements of his child made to others indicating that he had sexually abused the child, arguing that the statements were inadmissible hearsay. On appeal, the Court carved out a special hearsay exception finding the exception mandated by the necessity to have statements of a child indicating abuse considered for their truth. The Court discussed its reasoning at length stating:
"Where the best interest of the child is the primary concern, we believe that the courts should consider those statements for their...
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