Madison v. Madison

• Decision Date: 26 September 2000
• Citation: Madison v. Madison, 27 S.W.3d 853 (Mo. App. 2000)
• Parties: (Mo.App. E.D. 2000) . Helen Cynarra Madison, Appellant v. Tony E. Madison, Respondent. Case Number: ED76816 Missouri Court of Appeals Eastern District Handdown Date: 0
• Court: Missouri Court of Appeals

27 S.W.3d 853 (Mo.App. E.D. 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Helen Cynarra Madison, Appellant v. Tony E. Madison, Respondent.

Case Number: ED76816

Missouri Court of Appeals Eastern District

Handdown Date: 09/26/2000

Appeal From: Circuit Court of St. Louis County, Hon. Samuel J. Hais

Counsel for Appellant: Kayla Vaughan

Counsel for Respondent: No appearance

Opinion Summary: Helen Cynarra Madison(mother) appeals from the judgment in her action for dissolution of marriage.The trial court dissolved the marriage and awarded mother legal and physical custody of the minor children.The trial court granted Tony Madison(father) visitation of the two minor children born during the marriage based on a progressive schedule starting with limited periods of unsupervised visitation and advancing to overnight and weekend unsupervised visits.On appeal, mother contends that the trial court erred in failing to make findings of fact that the visitation plan best protects the children from the alleged domestic violence and in awarding unsupervised visitation.

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

Division Two holds: The unsupervised visitation schedule is not supported by substantial evidence.This Court remands to the trial court to fashion a visitation plan with the requirement of a successful period of supervised visitation prior to progressing to unsupervised visitation.In all other respects, the judgment and decree of dissolution is affirmed.

Opinion Author: PER CURIAM

Opinion Vote: AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.Ahrens, P.J., Crandall Jr., and J. Dowd, J.J.

Opinion:

Helen Cynarra Madison("mother") appeals from the judgment in her action for dissolution of marriage.The trial court dissolved the marriage and awarded mother legal and physical custody of the minor children.The trial court granted Tony Madison("father") visitation of the two minor children born during the marriage based on a progressive schedule starting with limited periods of unsupervised visitation and advancing to overnight and weekend unsupervised visits.On appeal, mother contends that the trial court erred in failing to make findings of fact that the visitation plan best protects the children from the alleged domestic violence and in awarding unsupervised visitation.We affirm in part, and reverse and remand in part.

Mother and father were married on May 6, 1981.Father and mother have three children, Cynarra, born prior to the marriage, and Eleni and Denali born during the marriage.In 1997, the couple separated and mother received an order of protection against father.Mother and the children moved from South Carolina to St. Louis where mother then filed her petition for dissolution on August 12, 1998.

Mother testified at trial that during the marriage father abused her.She referenced multiple incidents including a time when father hit her, shook her, and locked her out of the house in the rain.Mother testified concerning a time after the separation when she and her children were living with her sister, and father arrived at the apartment uninvited.He banged on the door demanding to see his children.Mother called the police after father stated he was not leaving until the police came because he wanted his visit to be recorded.

During trial, mother alleged that father drank excessively.Father denied that he was an alcoholic and testified that mother also drank with him.Mother and father also gave conflicting testimony concerning counseling the couple attended.

Father testified at trial that he slapped his daughter Cynarra after she cursed at him.After he slapped Cynarra, she ran to the kitchen and pulled a butter knife on father.During the struggle to get the knife away from her, father"popped" Cynarra in the mouth while the two other children were in the room.Father pled guilty to assault with the explanation that he slapped his daughter for disciplinary reasons.

After this incident, an order of protection was issued for all three children and father was allowed only supervised visitation through Heritage House with the younger two children.At trial, Barbara Flory, project coordinator for Heritage House, testified that during the course of the supervised visits the children became more open with their father.Father also testified that he learned more appropriate forms of discipline.

On July 14, 1999, the trial court entered its judgment of dissolution of marriage.The trial court found it was in the best interest of the children that mother be granted sole legal and primary custody of the children.Due to her age and the evidence of assault, the trial court granted father visitation with Cynarra only at her request and initiation.In addition, the trial court granted father visitation with Eleni and Denali on six Saturdays in the eight-week period immediately following the entry of the decree, for four hours each.After this period of visitation, father would receive overnight visitation every other Saturday for twelve visits.If the Saturday visits were successful, visitation would increase to every other weekend from Friday evening through Sunday evening.Beginning in the summer of 2000, father would have fourteen unbroken days with the minor children.The parents were to alternate visitation on holidays.Mother and father were to participate in counseling to effectuate the order of custody and visitation.On appeal, mother challenges this visitation plan.

We will uphold the judgment of the trial court unless it is not supported by substantial evidence, is against the weight of the evidence, or misstates or misapplies the law.Murphy v. Carron, 536 S.W.2d 30, 32(Mo. banc 1976).

In points one and three, mother argues that the trial court erred in awarding unsupervised visitation to the father without making findings of fact and conclusions of law as to the best interests of the children after finding domestic violence occurred.Mother contends that the trial court is required by section 352.375.13 RSMo (Supp. 1998)¹ and section 352.400.1 to make findings of fact as to why visitation is in the best interest of the children where domestic violence has occurred.Mother relies on Mund v. Mund, 7 S.W.3d 401, 403...