Matter of: Flynn v. Flynn

• Decision Date: 28 November 2000
• Citation: 34 S.W.3d 209
• Parties: (Mo.App. E.D. 2000) In the Matter of: Aaron J. Flynn, a minor, Robert Dunard and Velma Dunard, Petitioners/Respondents, v. Michael Flynn and Alice Flynn, Respondents/Appellants. ED77242
• Court: Missouri Court of Appeals

34 S.W.3d 209 (Mo.App. E.D. 2000)

In the Matter of: Aaron J. Flynn, a minor, Robert Dunard and Velma Dunard, Petitioners/Respondents, v. Michael Flynn and Alice Flynn, Respondents/Appellants.

ED77242

Missouri Court of Appeals Eastern District

11/28/2000

Appeal From: Circuit Court of Lincoln County, Hon. J. Rockne Calhoun

Counsel for Appellant: Joseph J. Porzenski

Counsel for Respondent: Amy J. Kinker

Opinion Summary: Parents appeal from a circuit court decision appointing the grandparents as guardians and conservators for the minor. The parents allege that the court's decision was against the weight of the evidence, and there was no substantial evidence to support the court's decision.

Northern Division holds: The guardianship statutes create a rebuttable presumption that a natural parent is the appropriate custodian for a minor child. In order for this presumption to be overcome, there must be evidence that the parent is unwilling, unable, or unfit to take care of the child. The court committed reversible error in appointing the grandparents as guardians of the minor without receiving evidence of the parents' unwillingness, inability, or unfitness to care for the minor.

Mary Rhodes Russell, Judge

Michael and Alice Flynn ("Father" and "Mother" or "Parents") appeal from a decision of the Lincoln County Circuit Court, Probate Division, appointing Robert and Velma Dunard ("Grandparents") as guardians and conservators of Parents' 16 year-old son ("Minor"). Parents allege that the probate court's decision was against the weight of the evidence, and there was no substantial evidence to support the decision. We reverse and remand in that there was no evidence that Parents were unwilling, unable, or unfit to assume the guardianship duties of Minor.

Grandparents filed a petition seeking appointment as guardians and conservators for Minor, their deceased daughter's child, who had been living with them for the previous two months pursuant to a temporary guardianship order. Parents are the natural father and adoptive mother of Minor. The court appointed a guardian ad litem ("GAL") to protect the interests of Minor.

Approximately four months prior to the guardianship hearing, the court ordered Parents to deliver to Grandparents all social security payments received on Minor's behalf, and further ordered Parents to request that the social security benefits be paid directly to Grandparents. Moreover, the court ordered Parents to deliver a release and proof of health insurance to GAL.

When Parents failed to comply with any of the court's orders, Grandparents filed a motion for contempt. Grandparents also filed motions to compel answers to interrogatories and to compel compliance with a request for production of documents.

At the hearing on Grandparents' petition for guardianship, Grandparents moved to strike the pleadings and moved for a default judgment based upon Parents' failure to comply with discovery. The court, without receiving any evidence regarding the Parents' willingness, ability, or fitness to assume the duties of guardianship, struck the pleadings of Parents and appointed Grandparents permanent guardians and conservators over Minor. Parents timely filed their notice of appeal.

Parents' first point on appeal alleges that the court's order appointing Grandparents as guardians and conservators was against the weight of the evidence in that Grandparents failed to introduce any evidence that Parents were unwilling, unable, or unfit to assume the guardianship duties of Minor.

We must affirm the trial court's judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

Three statutes govern appointing a guardian for a minor child. Section 475.025 RSMo 1994¹ states that a father and mother are the natural guardians of a minor child. Section 475.030 authorizes the granting of guardianship letters in three instances: (1) when a minor's parents are deceased; (2) "[w]here the parents or the sole surviving parent of a minor are unwilling, unable, or adjudged unfit to assume the duties of guardianship," or (3) where the minor's parents' parental rights have been terminated. Section 475.045 gives the parents first priority in appointment as guardian or conservator of a minor, except as otherwise provided in section 475.030.

Reading these statutes together, "letters of guardianship for a minor should not issue unless there is no parent available, willing or able to fulfill the parental role in caring for a child and providing for that child's needs as natural guardian." Estate of Casteel v. Guardian ad Litem, 17 S.W.3d 585, 588 (Mo. App. 2000) (citing Reece v. Reece, 890 S.W.2d 706, 710 (Mo. App. 1995)).

Moreover, these statutes create a rebuttable presumption that a natural parent is the appropriate custodian for a minor child. Cotton v. Wise, 977 S.W.2d 263, 264 (Mo. banc 1998). This presumption may be overcome by evidence that a parent is unwilling, unable, or unfit to take charge of the child. Id.

The court awarded guardianship to Grandparents based upon a finding that Parents were unwilling, unable, or unfit to care for Minor. We must determine

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