K.S.H. v. D.J.H., 63266
| Decision Date | 10 January 1995 |
| Docket Number | No. 63266,63266 |
| Citation | 891 S.W.2d 144 |
| Parties | K.S.H., Petitioner/Respondent, v. D.J.H., Respondent/Appellant. |
| Court | Missouri Court of Appeals |
Charles P. Todt, Charles P. Todt & Associates, St. Louis, for respondent/appellant.
Philip J. Ohlms, Malaine P. Hagemeier, Barklage, Barklage, Haywood & Brett, P.C., St. Charles, for petitioner/respondent.
The dispute in this case involves Father's rights of temporary custody with his three sons. They are now nine, eight and six years of age. Father began the proceedings when he filed a motion requesting that Mother be held in contempt for intentional violation of his temporary custody rights granted in the September, 1990, dissolution decree. Mother filed a cross-motion for contempt for Father's failure to pay money awarded in the decree. Thereafter, she added a motion to modify the temporary custody provisions and requested the court to order Father "to have no further contact with the minor children unless under the direct supervision of the Division of Family Services at their offices." Father's parents filed a separate motion for visitation with their grandchildren. See § 452.400.3 RSMo Supp.1993. The court rejected Father's motion to modify; found Father in contempt, but, expressly ordered no sanction; denied the grandparents' motion for visitation; and, altered, but did not terminate, Father's temporary custody. Father appeals the modification of his temporary custody rights. We reverse and remand.
The court entered a dissolution decree on September 24, 1990, after approving the parties' separation agreement. The provisions of the decree relevant to temporary custody are as follows:
[Father] shall have temporary custody of the minor children each Sunday from noon until 8:00 P.M.;
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The terms of the Marital Settlement Agreement are incorporated into this Decree of Dissolution and the parties ordered to perform them. These terms shall be enforceable by all remedies available for the enforcement of a judgment.
The provisions of the Marital Settlement Agreement relevant to temporary custody are as follows:
4. CUSTODY OF MINOR CHILDREN ... and the parties further agree that the Husband is to have the right of reasonable visitation and temporary custody each Sunday from 12:00 noon until 8:00 P.M., provided however, that said periods shall be supervised by husband's parents AND SUBJECT TO THE RECOMMENDATIONS FOR FUTURE TEMPORARY * * * * * *
CUSTODY AS RECOMMENDED IN PARAGRAPH 7 HEREIN.
7. COUNSELING: The parties AND [T.J.] shall immediately begin a program of counselling with Rohen and Associates, 1 Westbury Square, St. Charles, MO. Said counselling [sic] shall be performed by a psychologist (Ph.D.) and shall address all issues pertaining to the parties and the children born of the marriage. Each party shall execute releases of information. The psychologist shall be directed to prepare written progress reports, with copies to be furnished to the Court, the Guardian ad Litem and the parties/their attorneys. The parties agree to attend said counselling [sic] and cooperate with the counsellor's recommendations AS TO FUTURE TEMPORARY CUSTODY OF THE CHILDREN OF THIS MARRIAGE INCLUDING [T.J.]. Each party shall pay for any Psychological evaluation recommended for such party, and the balance of the counselling [sic] COSTS SHALL BE DIVIDED EQUALLY BETWEEN THE PARTIES.
[The sections in bold print were added to the typed agreement and initialed by the parties].
Terrence M. Rohen of Rohen & Associates testified that he published a report in January, 1991, which recommended that supervised temporary custody was no longer necessary for the welfare of the three boys. Pursuant to this recommendation, Father attempted to see his boys on an unsupervised basis. Father testified that he had the children in his sole custody for a very limited period on exactly one occasion, during a 30 to 45 minute truck ride. This testimony was supported by his parents, who both testified that with the one exception they were present at all times after the dissolution to supervise temporary custody. However, T.J. indicated that sometimes Father would drop grandmother off, or that grandmother would watch T.V. or ride horses, leaving the boys alone with Father.
In her testimony, Mother admitted she had intentionally refused to comply with the recommendation of Rohen & Associates under the terms of the decree of dissolution. Mother rejected the interpretation that the custody agreement in the marital settlement agreement, when incorporated into the decree, authorized Rohen & Associates to cancel the requirement of supervised visitation with Father.
Furthermore, Mother admitted that on numerous occasions beginning on February 3, 1991, she withheld the children from even supervised visits with their Father. She justified her actions on the basis of the children's complaints of abuse and on the basis of advice from the guardian ad litem. She did not attribute such advice to her own counsel. She never sought medical confirmation of acts of abuse. She never made any sexual abuse complaint to Father or his parents. She did not deliver the children to the juvenile court for protection as an alternative to complying with the decree. Father asked the court on February 14, 1991, to enforce the dissolution decree by a finding of contempt. Mother answered with her own contempt motion for unpaid child support.
Before and after the contempt motions, Mother made numerous reports of abuse by Father to the Division of Family Services (DFS) and to the guardian ad litem. DFS investigated for abuse in April 1990, February 1991, April 1991, August 1991 and May 1992. In each case DFS did not find abuse by Father, although it ultimately found "reason to suspect" abuse by an "unknown perpetrator."
Mother admitted she wrote a letter on July 8, 1991, to Father. Despite her representations to DFS and the guardian ad litem, described above, the letter never referred to any abuse of the boys after the September, 1990, decree. She stated "the time spent with you at your parents' is spoken very highly of by [the boys]." She also said "They love you all very much." She confirmed the truth of that statement in her testimony. She also said "They feel completely safe and comfortable coming there to visit." She acknowledged that what she wanted was to On September 20, 1991, Mother filed a motion to modify the dissolution decree in order to eliminate Father's right to unsupervised visitation and his right to see the children under the supervision of their paternal grandparents. Her motion proposed supervision by DFS. The grandparents then moved to intervene. After a full evidentiary hearing, the court ruled in favor of Mother. Relevant portions of the court's order follow.
keep the custody the way it was before, supervised.
The Court specifically finds that a SAFE examination conducted by Dr. Norman Steele as reflected in Respondent's exhibits revealed physical findings consistent with sexual child abuse to [T.J.] and [B.Z.].
The Court finds that the children have consistently made reports to the guardian ad litem and to the Petitioner that the Respondent has been the party responsible for sexual abuse to the children.
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That the grandparents, [E. and S.], testified that they did not believe Respondent engaged in any inappropriate conduct with the children and did not feel it necessary to supervise his conduct with the children.
Based on these findings the court entered the following orders relevant to the subject of temporary custody:
2. The Court finds that the exhibits introduced into evidence particularly the medical report of Dr. Steele is sufficient to find that there is reason to suspect the Respondent of inappropriate conduct with the children and that it is not in the best interest of the children that they be in the unsupervised custody of the Respondent or be visited by Respondent under the supervision of his parents (Intervenors).
The Court hereby denies grandparents' motion to enforce grandparents' rights and orders that they may enjoy such contact with the children during those periods of visitation as are herein after [sic] granted to the Respondent.
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4. On Petitioner's Motion to Modify the Decree, the Court finds that the report of Dr. Steele and the children's conversations with Petitioner and the guardian ad litem constitute a continuing substantial change in circumstances coupled with the testimony of the paternal grandparents that Respondent shall have no right to temporary custody of these children. Respondent is hereby granted the following rights of visitation to the children. These periods of visitation shall occur only if supervised by Respondent's brother and sister-in-law, [R. and D.]. Those periods of visitation are as follows: Every Sunday from 12:00 noon to 8:00 p.m. and additional periods of holiday visits....
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5. All periods of visitation as hereinbefore set forth shall be conditioned upon the complete and total supervision by Respondent's brother and sister-in-law, [R. and D.]. At no time shall Respondent be left alone with these children. In the event that Respondent's brother and sister-in-law shall not be willing to Respondent shall be required to obtain satisfactory substitute supervisors. Said substitute shall be individuals acceptable to Petitioner who shall not unreasonably withhold her consent.
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8. The Court orders that Petitioner, Respondent and the minor children shall engage in a program of counselling [sic] at Rohen & Associates.
On appeal Father contends there was no substantial evidence to support a modification of the temporary custody order in that the evidence does not support the finding of sexual abuse, and that the court order lacks the...
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