James v. James, No. 18304

• Decision Date: 17 May 1993
• Docket Number: No. 18304
• Citation: 853 S.W.2d 425
• Parties: Larry Thomas JAMES, Appellant, v. Sandra Marie JAMES, Respondent.
• Court: Missouri Court of Appeals

Page 425

853 S.W.2d 425

Larry Thomas JAMES, Appellant, v. Sandra Marie JAMES, Respondent.

No. 18304.

Missouri Court of Appeals,

Southern District,

Division One.

May 17, 1993.

George A. Shaffer, Buffalo, for appellant.

No appearance for respondent.

PARRISH, Chief Judge.

Larry James appeals from an order that modified a decree of dissolution of marriage with respect to child visitation rights. This court affirms.

The marriage of Larry James and Sandra James (now Sandra McFarland) was dissolved by a decree of dissolution of marriage entered by the Circuit Court of Dallas County, Missouri, on January 10, 1991. The parties had three children. They were awarded joint legal custody of the children. See § 452.374.1. ¹ Larry was awarded physical custody. Sandra was allowed "liberal visitation" with the children "consistent with at least the visitation set forth in the Decree." ² The "liberal visitation" rights apparently were intended to be the reasonable visitation to which Sandra was entitled, as a noncustodial parent, by reason of § 452.400.1.

Sandra resided in California prior to the dissolution of her marriage to Larry. She had intended to move back to Missouri after the dissolution. She was unemployed. She explained what happened regarding her plans.

At the time I came to court I was unemployed, and I had agreed to move back to the State of Missouri.

. . . . .

I obtained a job [in California] in March because my child support started in March; and I was not financially able to move from the State of California to Missouri.

Sandra did not see her children from January 1991, when the marriage was dissolved, until June 1992, when she was present for the court hearing on her motion to modify the dissolution decree. She had attempted to reach an agreement with Larry in the summer of 1991 which would have permitted her "to have [her] weeks during the summer consecutively" so she could have taken them to California "for one period of time." Although Larry was willing for her to have the children for two weeks, no agreement was reached.

Sandra testified that she had remarried. She described the facilities available for the children at her home in California and her employment there. The trial court modified the visitation schedule. It granted Sandra visitation "from one (1) week after school dismisses for summer vacation until one (1) week before classes resume and during Christmas break from school on odd numbered years." ³ Larry appeals from that order. Other procedural facts will be set forth in later parts of this opinion.

Larry's first point on appeal contends that the trial court erred in changing the visitation rights that were granted by the original decree because Sandra "presented no evidence by which the court could find, upon the basis of facts that had arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change had occurred in the circumstances of the children or their custodian ... and that the modification was necessary to serve the best interests of the children."

In asserting that there was no showing of a significant change of circumstances with respect to the children and him, as their custodian, Larry relies on § 452.410, RSMo Supp.1991, and on Burden v. Burden, 811 S.W.2d 818 (Mo.App.1991), and Pulliam v. Sutton, 728 S.W.2d 252 (Mo.App.1987). However, Larry, the appellant before this court, ⁴ has not discussed § 452.400.2, RSMo Supp.1991. It states, as is pertinent here:

The court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child,....

This court is mindful of the direction given by § 1.090, RSMo 1986, that "[w]ords and phrases shall be taken in their plain or ordinary and usual sense." Section 452.400.2, RSMo Supp.1991, the provision that relates to visitation rights by noncustodial parents, requires modification based upon "the best interests of the child." There is no reference to changed circumstances of the child or custodial parent in the language of that statute as there is in the language of the statutes that relate to modification of custody, § 452.410, RSMo Supp.1991, or to modification of maintenance or support, § 452.370.1, RSMo Supp.1991.

Likewise, Burden v. Burden, supra, the first case upon which Larry relies with respect to Point I, was a modification of custody case, not a modification of visitation case. 811 S.W.2d at 820. The applicable statute in Burden was § 452.410, not § 452.400, the applicable statute here.

The second case upon which Larry relies, Pulliam v. Sutton, supra, is a case in which modification of visitation rights was sought. 728 S.W.2d at 253. It was decided by the western district of this court. In Pulliam the court acknowledged that "[t]he authority of the court to modify visitation rights is limited to circumstances in which the modification would serve the best interests of the children. Section 452.400.2, RSMo 1986." Id. It also stated the requirements for modifying a custody decree, saying:

In order to modify a custody decree, the court must find that: (1) facts arising since the prior decree have given rise to change in circumstances of the child or his custodian, and (2) modification is necessary to serve the best interests of the child.

Id. The court, in Pulliam, reversed the trial court's order modifying visitation rights. It stated, as its reason for reversing the trial court, "There was no evidence that any circumstances of the children or of appellant had changed since the date of the decree or that the limitations on respondent's visitation had operated to the disadvantage of the children." Id. at 254. "On Motion for Rehearing," the court, in a per curiam opinion, addressed a challenge to its holding "that a change in the visitation rights of a non-custodial parent must, in like manner to a change in custody, be supported by evidence of a change in circumstances of the child or his custodian." Id. It concluded, "If there be ... a divergence in views among the districts, which is not at all certain, this court adheres to the view expressed in the principal opinion...." Id.

This court respectfully declines to follow Pulliam. This court finds the assessments that follow persuasive with respect to what is required in order to modify or define reasonable visitation rights granted to a noncustodial parent.

In Gayman v. Gayman, 559 S.W.2d 617 (Mo.App.1977), the western district, prior to its opinion in Pulliam, quoted from § 452.400.2, RSMo Supp.1973, an earlier revision of RSMo Supp.1991, as follows:

The court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child, but the court shall not restrict a parent's visitation rights unless it finds that the visitation would endanger the child's physical health or impair his emotional development.

559 S.W.2d at 618. The quoted language from the 1973 Supplement is identical to the language in the first sentence of the statute applicable here, § 452.400.2, RSMo Supp.1991.

After quoting from the statute, the court, in Gayman, made the following observation regarding its language:

It leaves no room for doubt that the "best interests" of the child is the polestar to guide on when charting restrictions to parental visitation rights.

Id. And:

Deference should be given to the trial court's assessment of what "best" serves the interests of the child in matters pertaining to visitation rights,....

Id.

In Blankenship v. Blankenship, 699 S.W.2d 44 (Mo.App.1985), the eastern district of this court affirmed a trial court's order modifying a father's visitation rights by increasing the hours provided for his daughter to visit him on "every other weekend." In so doing, the court pointed out that the change "was not to change custody as contemplated by § 452.410, RSMo 1978, but one to remove the limitations relating to the situs of overnight visits." Id. at 45. The court quoted § 452.400.2, RSMo Supp.1983, which is identical to the first sentence of the 1991 Supplement version, the part of the statute applicable to this case. The court stated its only concern regarding the appeal "[was] whether the trial court could have found the modification served the best interest of [the] daughter." 699 S.W.2d at 45. It found that the evidence was sufficient to support such a determination. ⁵

In Keith v. Keith, 708 S.W.2d 350 (Mo.App.1986), this court considered a mother's claim "that the trial court erred in not granting her visitation rights with respect to [her daughter] (and in refusing to modify [a prior order] ), for the reason that 'a change of circumstances had occurred and modification would serve the best interest of [the daughter].' " Id. at 352. In denying the appellant's claimed error, this court quoted §§ 452.400.1 and .2, RSMo 1978, V.A.M.S. It held that "[a] determination of visitation rights will not be overturned unless the appellant demonstrates that the order was not in the best interests of the child." 708 S.W.2d at 352.

More recently, in an en banc opinion, this court stated:

In matters pertaining to visitation rights, this court should accord due deference to the trial court's assessment of what serves the best interests of the child. Keith, 708 S.W.2d at 352. A determination of visitation rights will not be overturned unless the appellant demonstrates that the order was not in the best interests of the child. Id. Where both parties are proper parents, each has a right to reasonable access to the children. Id. Overnight visits may be a part of reasonable visitation rights within the meaning of § 452.400, Id. at 352- 353, and thus not governed by the provision of § 452.410 which requires certain proof before a prior custody decree is modified. Id. The trial court may believe all, part or none of the testimony of a witness. Id.

The best interest of the child is the principal factor. Winters...