L. L. T. v. P. A. T., WD
| Decision Date | 29 June 1979 |
| Docket Number | No. WD,WD |
| Citation | 585 S.W.2d 157 |
| Parties | L. L. T., Respondent, v. P. A. T., Appellant. 30321. |
| Court | Missouri Court of Appeals |
William D. Adkins, Liberty, for appellant.
Timothy H. Bosler, Martin M. Montemore, Liberty, for respondent.
Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
Upon modification of a dissolution of marriage decree proceeding, the trial court terminated appellant's visitation rights with his infant daughter. Appellant first asserts that there was insufficient evidence to support the order. He contends that there was no evidence to establish that a "certain condition" of the child (after she was returned to respondent) was caused by him or that the presence of that condition showed that continued visitation rights would endanger the physical and emotional health of the child; and that there was no evidence to establish that he had an uncontrollable temper as would work a substantial change in the condition of the parties which would support a modification of the decree to serve the best interests of the child.
Appellant was granted visitation rights by the decree, which was entered September 6, 1977, for "The first and third Saturday of every month, along with a member of my family." According to the original petition, the child was born August 6, 1976. Respondent's petition to modify the decree was filed December 14, 1977, and alleged that appellant "has continually physically and mentally abused said child." By amendment, she asked for attorney's fees.
Respondent testified that appellant picked up the child about 9:30 in the morning of December 3, 1977. She bathed the child that morning and had an opportunity to examine her. She did not notice "any irregularities wrong with the child." The child was returned to her about 5:30 p. m. A little after 10:00 that evening the child "seemed awfully rambunctious and fussy." Respondent played with her awhile, and when she got sleepy, she went in to get her ready for bed. As respondent was applying baby cream she noticed that the child's anal area was awfully reddened, and an opening was enlarged there. Because it was unusual and she had never seen it on the child, respondent called her mother in. She then called her family doctor who suggested that she take her to Osteopathic Hospital to see what was wrong, but that pictures should be taken. The picture taken was before the trial court but has not been filed in this court. On arrival at Osteopathic Hospital, respondent was referred to Children's Mercy Hospital where the child was examined by Dr. Gail M. Zank at 2:30 a. m., on December 4, 1977. Dr. Zank found some "perirectal redness erythema, about a half a centimeter in circumference." There was no bleeding or tearing of the anal area, and there was nothing she noticed that indicated penetration. A cultural sperm test was made and there was no sperm seed on the wet mount. There was nothing to indicate sexual molestation. The area of redness was compatible with penetration, but there was no way of knowing for sure it could have been another cause altogether such as pinworms, a firm stool or constipation. No treatment was indicated.
Appellant testified that he realized he had been charged with physically and mentally abusing the minor child, but denied that he had ever done so. He admitted that he was undergoing counselling at the time of trial, and had been doing so since September, 1977, once a week.
The trial court made this finding: "The Court finds that the evidence adduced in this cause proved a substantial change in the condition of the parties with respect to visitation of the infant child, H. L. T., in that Respondent (appellant here) has been shown to manifest an uncontrollable temper coupled with emotional problems for which he has been receiving treatment, and that said infant, H. L. T., while in his temporary care, obtained a certain physical condition as shown by the evidence, and that further visitation would endanger the physical health and impair the emotional development of said child." Appellant's visitation rights as set forth in the original judgment were ordered terminated.
The parties appeared to be confused as to whether the court's order had to do with a change of circumstances since the original decree, as required for a Custody change order under § 452.410, RSMo 1978, or whether it had to do only with a restriction of visitation rights which requires only a finding...
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