Kesler v. Kesler
| Decision Date | 09 October 1984 |
| Docket Number | No. 48036,48036 |
| Citation | 682 S.W.2d 44 |
| Parties | Kristy L. KESLER, Appellant, v. Robert E. KESLER, Respondent. |
| Court | Missouri Court of Appeals |
Robert R. Young, Timothy S. Murphy, St. Louis, for appellant.
James J. Knappenberger, Clayton, for respondent.
Wife appeals from a decree of dissolution challenging only a provision of the decree relating to the temporary custody of the minor child.
The parties had a marriage of short duration. There was one child born of the marriage, Jonathan. At the time of the hearing he was 8 months old. He was born premature and spent several weeks in the hospital. He underwent surgery in March, 1983 and may need another operation. According to his mother he was allergic to certain clothing, fabrics and food and required a special diet and clothing.
Husband, at the time of the hearing was a private in the army stationed in Tennessee. In April, 1984, he was due to be transferred to an army post in West Germany. 1 Husband testified that if granted temporary custody he would come to St. Louis on weekends and take the child to his mother's house in Union. He agreed to follow any instructions given by the wife concerning formula, medication, diapers and clothing. The home in Union had everything a baby needed including a play pen, crib, and swing.
After hearing the evidence, the trial court dissolved the marriage, set aside separate property to the parties, awarded the marital property, awarded custody of Jonathan to wife with an award of child support, and awarded temporary custody of Jonathan to husband from 10:00 a.m. Saturday to 5:00 p.m. Sunday on alternate weekends. The court further decreed that "[o]n weekends when [husband] is unable to be in St. Louis County temporary custody rights shall be exercised by the child's paternal grandmother."
We note that the grandmother was not a party to this proceeding and neither filed a motion to intervene, testified or presented any evidence. Husband made no request that his mother exercise his rights in his absence. On appeal, wife contends that the provision of the decree allowing the husband's mother to exercise husband's temporary custody rights was error.
Section 452.400.3, RSMo.Supp.1983, provides:
The court may grant reasonable visitation rights to either the maternal or paternal grandparents of the child and issue any necessary orders to enforce the decree. A maternal or paternal grandparent shall have the right to intervene in any dissolution action solely on the issue of visitation rights; the grandparents shall also have the right to file a motion to modify the original decree to seek visitation rights when visitation rights have been denied to them. The court shall determine if the visitation by the grandparent would be in the child's best interest or if it would endanger the child's physical health or impair his emotional development.
In Hamilton v. Hamilton, 622 S.W.2d 252, 253 (Mo.App.1981), paternal grandparents filed a motion to intervene in a dissolution proceeding and requested visitation rights pursuant to Section 452.400, RSMo.1978. A hearing on grandparents' motion was held and a provision awarding them visitation on the 1st and 3rd weekend of every month from 10:00 A.M. Saturday to 5:00 P.M. Sunday was included within the dissolution decree. This court, citing Barry v. Barrale, 598 S.W.2d 574 (Mo.App.1980), held the visitation provision was proper. In Barry, the trial court granted temporary custody of the two children to grandparents once each month from 9:00 a.m. Saturday to 7:45 p.m. on Sundays. The Western District held the trial court could not grant grandparents "temporary custody" pursuant to Section 452.402 which only authorized grandparent visitation. However, the court stated that, "[w]e are inclined to the view that the trial court did not intend by use of the word 'custody' any broader rights than the visitation authorized by the statute" and it modified the order to provide for the same terms of visitation to the grandparents as had the order which referred to "temporary custody." 598 S.W.2d at 581.
In a proceeding under Section 452.400.3, grandparents must intervene, request visitation and present evidence so that the trial court may determine whether visitation by the grandparent would be in the child's best interest or if it would endanger the child's physical health or impair his emotional development. While there was no evidence that...
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