Hoskins v. Box, WD59313

• Decision Date: 25 September 2001
• Docket Number: WD59313
• Citation: 54 S.W.3d 736
• Parties: Tammy Renay (Box) Hoskins, Respondent v. Steven Dale Box, Appellant WD59313 Missouri Court of Appeals Western District 0
• Court: Missouri Court of Appeals

Tammy Renay (Box) Hoskins, Respondent v Steven Dale Box, Appellant

WD59313

Missouri Court of Appeals Western District

09/25/2001

Appeal From: Circuit Court of Jackson County, Hon. Marco A. Roldan

Counsel for Appellant: Kenneth C. Hensley

Counsel for Respondent: Kristin Burks

Opinion Summary:

Steven Dale Box appeals the court's judgment dismissing his motion to modify the judgment dissolving his marriage to Tammy Renay Box. Specifically, Steven Box sought visitation with his two minor sons more than a year after he was released from probation because he had pled guilty to felony child abuse.

Division Three holds: (1) The 1998 amendment to section 452.400.1 affects substantive rights because it provides new grounds under which courts are required to deny non-custodial parents visitation by prohibiting courts from granting visitation to those parents who plead guilty to or are convicted of felony child abuse. (2) The trial court did not apply the amended statute retroactively because it applied the statute that was in effect when Steven Box's action commenced. (3) Prior to filing a motion to modify, Steven Box had only a "mere expectation" that he could seek visitation with his sons and not a vested right.

Ulrich, P.J., Breckenridge and Ellis, JJ, concur

Joseph M. Ellis, Judge

Father, Steven Dale Box, filed a motion to modify his decree of dissolution, seeking visitation with his two minor sons. Mother, Tammy Renay Box, filed a motion to dismiss for failure to state a claim upon which relief could be granted. The circuit court sustained Mother's motion and dismissed Father's motion to modify. Father appeals.

Father and Mother's marriage was dissolved in January 1994. Prior to the dissolution, on April 6, 1993, Father pled guilty to felony child abuse, section 568.060, RSMo 1994, for crimes against his youngest son. He was placed on five years probation. As special terms to his probation, Father was prohibited from having any contact with his children and ordered to complete sexual offenders counseling. In the subsequent dissolution decree, Father was also prohibited from having any contact with his children.

Father was released from probation on June 2, 1998. During the 1998 legislative session, section 452.400.1, RSMo 1994, was amended. The amendment became effective on August 28, 1998. Prior to the amendment, courts were only required to deny visitation to non-custodial parents who had pled guilty to or been convicted of certain sex crimes enumerated in Chapter 566, RSMo, or incest, section 568.020, RSMo, when the child was the victim. All other parents could not be denied visitation unless it was determined, after a hearing, that "visitation would endanger the child's physical health or impair his emotional development." Section 452.400.1, RSMo 1994. The 1998 amendment, however, required courts to deny visitation to non-custodial parents who had pled guilty to or been convicted of felony child abuse. Section 452.400.1, RSMo Cum. Supp. 1998. The amended portion of section 452.400, RSMo Cum. Supp. 1998, reads as follows:

The court shall not grant visitation to the parent not granted custody if such parent has been found guilty of or pled guilty to a felony violation of chapter 566, RSMo,¹ when the child was the victim, or a violation of chapter 568, RSMo,² except for section 568.040, RSMo,³ when the child was the victim . . . .

More than a year after he was released from probation, on December 28, 1999, Father filed a motion to modify seeking visitation. Mother filed a motion to dismiss, alleging that the 1998 amendment to section 452.400 prohibited the circuit court from granting visitation rights to Father. The circuit court dismissed Father's motion to modify. Father brings one point on appeal.

Father contends that the trial court erred in dismissing his motion to modify because he had a substantive right to seek visitation with his children prior to the 1998 amendment because "Article 1, section 13 of the Missouri Constitution prohibits the enactment of a law that is retrospective in operation." He argues that the trial court erred in applying the amended version of section 452.400 retroactively, because when father pled guilty to felony child abuse in 1993, such a conviction was not a bar to visitation.

"When reviewing the trial court's grant of a motion to dismiss, we solely look at the adequacy of the plaintiff's petition and whether it states any ground for relief." State v. Carroll Care Ctrs., 11 S.W.3d 844, 849 (Mo. App. W.D. 2000). All facts pleaded in the petition are treated as true, and the non-moving party is given the benefit of all reasonable inferences. Id. "Where the trial court does not state a basis for its dismissal, we presume that dismissal was based on the grounds stated in the motion to dismiss and will affirm if dismissal was appropriate on any ground stated in the motion to dismiss." Id.

Article 1, Section 13, of the Missouri Constitution states that "no ex post facto law, nor law . . . retrospective in its operation can be enacted." In re S.L.J., 3 S.W.3d 902, 905 (Mo. App. S.D. 1999). Accordingly, the presumption is that statutes operate prospectively. Id. There are two exceptions to this general rule: "'(1) where the legislature manifests a clear intent that the statute act retroactively, and, (2) where the statute is solely procedural or remedial and does not affect the substantive rights of the parties.'" Id. (quoting Jones v. Mo. Dep't of Soc. Serv., 966 S.W.2d 324, 327 (Mo. App. E.D. 1998)).

The Legislature did not demonstrate a clear intent that section 452.400, RSMo Cum. Supp. 1998, should apply retroactively. Therefore, the issue is whether the statute affects substantive rights. "''[S]ubstantive law relates to the rights and duties giving rise to the cause of action. . . .''" Id. at 906 (quoting Pierce v. Mo. Dep't of Soc. Serv., 969 S.W.2d 814, 822 (Mo. App. W.D. 1998)) (quoting Wilkes v. Mo. Highway and Transp. Comm'n, 762 S.W.2d 27, 28 (Mo. banc 1998)). "'[A] statute is procedural or remedial in nature if it 'prescribes a method of enforcing rights or obtaining redress for their invasion . . . .''" Id. (quoting Pierce, 969 S.W.2d at 822) (quoting Wilkes, 762 S.W.2d at 28). In comparison, "[s]ubstantive statutes take away or impair vested rights acquired under existing law, or create a new obligation or impose a new duty." Id. (quoting Brennecker v. Dir. of Revenue, 855 S.W.2d 509, 511 (Mo. App. W.D. 1993)).

The Missouri Supreme Court has defined "vested" as "fixed, accrued, settled or absolute." La-Z-Boy Chair Co. v. Dir. of Econ. Dev., 983 S.W.2d 523, 525 (Mo. banc 1999). "A vested right 'must be something more than a mere expectation based upon an anticipated continuance of the existing law. It must have become a title, legal or equitable, to the present or future enjoyment of property or to the present or future enjoyment of the demand.'" Mo. Nat'l. Educ. Ass'n v. Mo. State Bd. of Educ., 34 S.W.3d 266, 285 (Mo. App. W.D. 2000) (quoting M & P Enter. Inc. v. Transamerica Fin. Servs., 944 S.W.2d 154, 160 (Mo. banc 1997)). A statute is retroactive "'only when it is applied to rights acquired prior to its enactment.'" Stewart v. Sturms, 784 S.W.2d 257, 261 (Mo. App. E.D. 1989) (quoting Barbieri v. Morris, 315 S.W.2d 711, 714 (Mo.1958)). "[A] statute which does not take away or impair a 'vested right' or impose a new or greater duty is not retrospective merely because it relates to prior facts or transactions." Id.

In S.L.J., the court determined that a 1998 amendment, which provided new grounds for terminating parental rights, did affect substantive rights and could not be applied retroactively. In re S.L.J., 3 S.W.3d at 906. "[T]he amended statute allows parents' rights in, to, and over their children to be terminated . . . for reasons that previously would not have supported a petition seeking or judgment granting termination." Id. As a result, the court found that the amendments addressed in S.L.J. created new causes of action. Id. Consequently, the court determined that the trial court was correct in applying the version of the statute in effect when the petition was filed, rather than the amended version in effect when the case went to trial. Id.

In the case at bar, the amendment prohibits the court from granting visitation to a group of non-custodial parents, those who plead guilty to or are convicted of felony child abuse. Section 452.400, RSMo Cum. Supp. 1998. Prior to the amendment, such parents could only be denied visitation after a hearing and a finding that visitation "would endanger the child's physical health or impair his emotional development." Section 452.400, RSMo 1994. Following the rationale of S.L.J., the amendment affects substantive rights because it provides new grounds under which courts are required to deny non-custodial parents visitation.

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