M.F.M. v. J.O.M.

• Decision Date: 03 January 1995
• Docket Number: No. WD,WD
• Citation: M.F.M. v. J.O.M., 889 S.W.2d 944 (Mo. App. 1995)
• Parties: M.F.M., Appellant-Respondent, v. J.O.M., Respondent-Appellant. 48491.
• Court: Missouri Court of Appeals

Page 944

889 S.W.2d 944

M.F.M., Appellant-Respondent, v.J.O.M., Respondent-Appellant.

No. WD 48491.

Missouri Court of Appeals Western District.

Jan. 3, 1995.

Gail Berkowitz, Kansas City, for appellant-respondent.

Frank B.W. McCollum, Dana L. Parks, Prairie Village, Kan., for respondent-appellant.

Before ELLIS, P.J., and BERREY and SMART, JJ.

ELLIS, Presiding Judge.

This case presents cross-appeals by the parties from orders entered by the Circuit Court of Jackson County on June 30, 1993, August 16, 1993 and August 30, 1993.It involves a dispute between two parents over custody of their son, C.M. ("Child"), who was born August 8, 1980, was twelve years old at the time this action was commenced in late 1992, and is now age fourteen.The route to this court commenced with J.O.M. ("Father") filing his second motion to modify in September, 1992.As subsequently amended, Father's motion sought sole custody of Child, prior court orders having provided joint custody.M.F.M. ("Mother") filed an answer and cross-motion for sole custody.Father then filed a motion for appointment of a Special Master, and nominated three lawyers for appointment.Mother did not object to the appointment of a Special Master, but objected to appointment of any of Father's nominees.She recommended four other lawyers.Without a hearing, Judge Clark appointed one of Father's nominees to serve as Special Master.After extensive discovery, the value and need of which in some instances is subject to serious question, the Master conducted a six-day evidentiary hearing, during which he heard testimony from seventeen witnesses.The Master subsequently filed a report containing findings of fact, conclusions of law and proposed orders, which, among other things, would have continued Child's joint legal and physical custody in Mother and Father, but would have given Father primary residential custody.Mother then filed exceptions and objections to the Master's report.The trial court heard arguments on Mother's exceptions and objections and, subsequently, on June 30, 1993, entered an order rejecting in whole the Special Master's report.The court found that there had been no change in the circumstances of either Child or his custodian such as to authorize a modification, and overruled the motions of both parties for sole custody.It also declared void a provision in a prior custody order authorizing two psychologists, Dr. Vandenberg and Dr. Sweetland, to issue oral and written directives with respect to implementation of recommendations concerning visitation and custody.And finally, the trial court awarded the Master's fee and expenses of $9,400.00, directed Father to pay $15,000.00 toward Mother's attorney's fees, and assessed costs against Father.On August 16, 1993, after Father filed a motion to amend the June 30th order to adopt the Master's Report, and Mother filed a motion for clarification of the award of attorney's fees, the trial court entered a second order denying Father's motion to amend the June 30th order.And finally, on August 30, 1993, the court entered its last order confirming that $15,000.00 was the total award of attorney's fees.Father and Mother both appeal the trial court's orders.

The chronology of events leading up to this appeal is reminiscent of that which this court criticized in S.K.B. v. J.C.B., 867 S.W.2d 651(Mo.App.1993).Along the way, Mother incurred approximately $52,000 in attorney's fees for this litigation, on top of about $27,000 in fees for the earlier modification, which is discussed infra.Presumably, Father's fees were comparable.Four judges were involved in the case over the course of eighteen months, with Judge Daugherty being involved at the time of the prior modification, but transferring it to Domestic Docket "A", Division 3 when this proceeding began, Judge Clark assigning it to that division and appointing the Special Master, Judge Shinn being assigned to the case and confirming appointment of the Master, and ultimately Judge Mauer receiving the Master's report and rejecting it.In addition, at least three, and perhaps as many as five, psychologists have been used by the parties.The extent of their fees are unknown, but it is reasonable to infer that they were substantial.

The parties were married in 1974, and Child was born in 1980.In February, 1987, the marriage was dissolved, and the court approved a Joint Custody Plan and Agreement.Under this arrangement, Child was to reside with Mother during the week.He was to spend every Wednesday (either for the evening or overnight), one weekend per month (from Friday at 3:00 p.m. until Monday morning), and one 24-hour period on two other weekends per month with Father.In addition, Child was to share the major holidays equally with each of his parents, and to spend one-half of each summer with each parent.The Plan further provided for mediation by Mary Kay Kisthardt, a University of Missouri-Kansas City law professor, if requested by either party, to address issues relating to their son.Father requested such mediation shortly after the dissolution decree was entered on February 24, 1987, and it continued until October, 1989, when Professor Kisthardt determined the parties were at an impasse "in their ... efforts to resolve their differences concerning their son's care through mediation."

In June, 1988, before these mediation sessions terminated, Father arranged for Child to begin seeing a psychologist, Dr. Bruce Bean.The purpose of the consultations was to assist Child in dealing with the effect of the dissolution, and to provide him with someone in whom he could confide.Father did not inform Mother of these sessions but she learned about them from Child, and initiated a meeting with Dr. Bean herself.Child continued to see Dr. Bean once or twice per month through March, 1992.In addition, during 1990, Dr. Bean tried to act as a mediator between the parties as to matters affecting Child.By November, 1990, Dr. Bean's mediation efforts had also failed.

The first post-decree court action was filed on April 20, 1989, when Father filed a motion to fix dates for his summer custody period.With the help of Professor Kisthardt, the parties were able to agree to a summer placement schedule and Father's pending motion was dismissed.

On February 22, 1991, Father filed a motion to modify the Joint Custody Plan in the original dissolution decree, seeking transfer of Child's primary physical custody to him.Mother countered and, ultimately, in her amended countermotion, sought sole custody of Child and an increase in child support.In November, 1990, prior to filing his motion to modify, Father took Child to a psychologist, Gerald H. Vandenberg, Ph.D.Dr. Vandenberg examined both Father and Child, and was subsequently designated as Father's expert in the modification proceeding.Several months after the motion was filed, Mother took Child to another psychologist, Richard C. Sweetland, Ph.D., who examined both of them.Dr. Sweetland was designated as Mother's expert.

Dr. Vandenberg met with Child and Father on numerous occasions prior to the hearing date set for February 7, 1992, and Dr. Sweetland did likewise with Child and Mother.Dr. Sweetland also met with the Father and Child on one occasion.Both Doctors conducted extensive testing on the parties and Child.On February 6, 1992, the day before the scheduled hearing, the two psychologists gave counsel and the parties their written recommendations of specific goals for the parties, a procedure for implementation of these goals, and a mechanism to resolve disputes.The psychologists suggested therapeutic sessions with the parties the purpose of which was to enhance communication and problem-solving skills between Mother and Father, to improve the father-son relationship, to enhance a sense of growing masculine identity on the child's part, and to increase the amount of contact, and to expand the interaction between father and son.

With these recommendations in hand, and just prior to the hearing, the parties entered into an agreement whereby Father agreed to pay an increased amount of child support, and to pay Child's expenses for such things as school lunches, piano lessons, tuition for private school, and uninsured medical and dental expenses.The parties also agreed to be bound by the psychologists' recommendations regarding child care.A hearing was then held before Judge Daugherty at which Father and Mother, as well as Drs. Vandenberg and Sweetland testified.At the conclusion of the hearing, the court entered an order modifying the original decree in accordance with the agreement of the parties, and incorporated the agreement and the child care joint recommendations of the psychologists into the order.As it relates to the case at bar, the critical portion of the February 7, 1992 order provides:

5.That the Petitioner and Respondent will immediately implement the recommendations set forth in the Joint Report.

6.Psychologists Sweetland and Vandenberg will take the steps necessary to implement the recommendations set forth in the Joint Report.

7.Disputes concerning visitation, custody and parenting of [Child] will be promptly resolved by the joint efforts of Psychologists Sweetland and Vandenberg, who will serve as arbitrators in resolving these disputes.

8.The psychologists will have the authority and responsibility to issue oral and written directives to Petition, Respondent and Respondent's wife, [A.M.], with respect to the resolution of disputes and implementation of recommendations concerning visitation, custody and parenting.Petitioner, Respondent and [A.M.] will fully comply with these directives.

9.Petitioner and Respondent may appeal to this Division from any directive issued by the psychologists if he or she believes the directive to be inappropriate.

10.The psychologists may ask this Division to enforce any of the directives they issue.

After the February 7,...