Piedimonte v. Nissen, No. WD

• Decision Date: 24 September 1991
• Docket Number: No. WD
• Citation: 817 S.W.2d 260
• Parties: Nancy PIEDIMONTE, Respondent, v. Kellynn G. (Spencer) NISSEN, Appellant. 43592.
• Court: Missouri Court of Appeals

Page 260

817 S.W.2d 260

Nancy PIEDIMONTE, Respondent, v. Kellynn G. (Spencer) NISSEN, Appellant.

No. WD 43592.

Missouri Court of Appeals Western District.

Sept. 24, 1991.

Lloyd Koelker, Kansas City, for appellant.

William D. Piedimonte, Independence, for respondent.

J. Scott King, Independence, guardian ad litem.

Before KENNEDY, P.J., and SHANGLER and FENNER, JJ.

SHANGLER, Judge.

This proceeding commenced in the probate division of the circuit court of Jackson County as a petition by Nancy Piedimonte for appointment as guardian of the person of E.G.S., a child of eight years, under Chapter 475, RSMo 1986. The ground alleged was that the mother, Kellynn Nissen, was unfit for the duty of guardianship. See §§ 475.045.1(1), 475.060(10). The petition for appointment of guardian was also submitted as a pleading for child custody determination by the court under the Uniform Child Custody Jurisdiction Act [UCCJA], §§ 452.440 to 452.550, RSMo 1986. The ground alleged for the exercise of jurisdiction under the UCCJA were in terms of § 452.450.1(3)(a) & (b):

(3) The child is physically present in this state and:

(a) The child has been abandoned; or

(b) It is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse, or is otherwise being neglected The court determined that jurisdiction existed to act under the UCCJA, undertook to exercise that jurisdiction, found the issue of custody in favor of the petitioner Piedimonte, and appointed her guardian of the person of the child E.G.S. The mother Kellynn Nissan appeals from that order. She contends that the court was without jurisdiction to act under the UCCJA.

The subject of the custody controversy, E.G.S., is the daughter of Kellynn Nissen and Robert Stockton who were never married. They are both married to other persons. She resides in Oregon, and he in New York. Kellynn has not seen her husband Nissen for several years. For the past three years, Kellynn has lived in Oregon with Rick Carr, E.G.S. and her other daughter, A., as a family.

The parents of the natural father, Don and Betty Stockton, live in Fargo, North Dakota. They have regularly visited E.G.S. since 1982, and had summer visitation with her in North Dakota. The petitioner here, Nancy Piedimonte, is their daughter, and the aunt of E.G.S. In recent years, she and her husband arranged their visits to the Stocktons to coincide with those of the child. In the summer of 1989, E.G.S. went to North Dakota for a visit with the Stockton grandparents. She arrived on July 15 and was to return to Oregon on August 1. During this visit, E.G.S. complained that her teeth hurt, and grandfather Stockton noticed that she had not been given any dental treatment since the year before. On July 31, the Stocktons asked the mother to extend the visit for one more week for Aunt Nancy Piedimonte to take the child to see a dentist in Blue Springs, Missouri, and Kellynn consented.

That approval was for just one visit to the dentist. When that time passed and the child still had not been returned, Kellynn telephoned the Stocktons, as did her father, and was told that the child would be returned after the dental work was completed. Kellynn then by letter revoked both her permission to have E.G.S.'s dental care done in Kansas City and her permission for E.G.S. to remain there. She mailed the revocation separately to the dentist, the grandparents, and to Nancy Piedimonte by registered and return-receipt delivery. Nancy Piedimonte refused the letter because, as she acknowledged, her parents had received the letter and it expressed Kellynn's disapproval of what they were doing and her demand that the child be returned. E.G.S. was never returned and on September 7, 1989, Kellynn filed a missing persons report with Oregon law enforcement authorities.

During this period with E.G.S., Nancy Piedimonte discovered that the child's reading skills were deficient. She observed also that the child lacked a general concern about her personal hygiene. Those considerations, along with the child's unsuitable home conditions in Oregon led the Stocktons and Piedimontes to the family decision to "enter her into school in Blue Springs while she was undergoing this dental treatment." Before the school year began, Nancy mailed a written consent form to Kellynn that would have allowed E.G.S. to stay with her, but Kellynn never returned it. Nancy acknowledged that after the week extension given by Kellynn was over, she had no doubt that the mother wanted her child back.

On September 15, 1989, Nancy Piedimonte filed the petition for appointment of guardian in the probate division of the circuit court. Days later, officers from the Blue Springs Police Department took E.G.S. into custody under the missing persons report from Oregon for return to that state. That prompted the petitioner Piedimonte on September 29, 1989, to apply for the emergency appointment of a guardian ad litem to prevent the transport of the child outside the state pending a hearing to "determine the child's best interests pursuant to the Uniform Child Custody Jurisdiction Act." This pleading alleged, inter alia, that the minor child E.G.S. was in the actual custody of the applicant Piedimonte, that the natural mother "voluntarily relinquished custody to Nancy Piedimonte," and that "[t]hereafter, after investigation, applicant determined that the minor child had been neglected and abused causing applicant to file her petition for appointment of guardian of a minor."

On September 29, 1989, the very day of the application, the probate court entered its emergency order and appointed Nancy Piedimonte as guardian ad litem of the child E.G.S., who was ordered into her custody. The court also appointed Scott King, Esquire, additional guardian ad litem to represent the minor's interests in all further proceedings.

On October 20, 1989, the mother Kellynn Nissan moved the court to quash the emergency order of appointment of Nancy Piedimonte as guardian ad litem of E.G.S., and for the order of the court "declining jurisdiction of this child custody matter pursuant to the Uniform Child Custody Jurisdiction Act." Then, in her answer to the petition for appointment of guardian, the mother again raised the issue of jurisdiction. The memorandum of suggestions filed by guardian ad litem Nancy Piedimonte reasserted the jurisdiction of the court to act under the emergency provision of § 452.450.1(3) of the UCCJA. The motion for the court to decline jurisdiction under the UCCJA was overruled on January 8, 1990.

On March 28, 1990, the mother Kellynn Nissen moved, under § 452.530 of the UCCJA, for a request to the Oregon court for a social study and evaluation of the Nissen home to assist the probate court's determination as to her suitability as custodian of her child E.G.S. The court sustained the motion. It formally requested Oregon for the study and report by May 15, 1990, a date prior to the scheduled hearing on the Piedimonte petition for appointment as guardian. The report was never submitted, apparently because the request was never received.

The trial on the petition for appointment of guardian for E.G.S. commenced on May 30, 1990. The mother Kellynn Nissen again challenged the jurisdiction of the court over the custody matter and reasserted the grounds in the October 20, 1989, motion. The guardian ad litem Piedimonte, in turn, reasserted the jurisdiction of the court to act in terms of the memorandum previously filed. The numerous witnesses included guardian ad litem Nancy Piedimonte, the Stocktons, Kellynn Nissen and guardian ad litem King. Other witnesses were Dr. John Smith, the treating dentist, Margaret Kinney, E.G.S.'s first grade teacher in Blue Springs, Dr. Barry Hughes, clinical psychologist, and, by deposition, Gary Frazier, principal of the Oregon school E.G.S. attended. Kellynn's father and sister also testified.

On June 5, 1990, the court sustained the petition, found the mother Kellynn unfit to have custody of E.G.S., and appointed Nancy Piedimonte guardian to have custody and control of the child. The court found also that the evidence was insufficient to address the issue of visitation between E.G.S., her mother Kellynn, and sister A. That question was deferred to "a later time," but was never addressed.

The formal judgment issued with findings of fact and conclusions of law. The findings were for the most part discursive resumes of the testimony of the Stockton grandparents, Nancy Piedimonte, the mother Kellynn Nissen, the dentist Dr. John Paul Smith and were expressed as inferences of fact. Those facts bore on the home situation in Oregon, the relationship between Kellynn Nissen and Rick Carr--with whom she and the children lived--the lack of attention by the mother Kellynn to the physical and educational needs of the child E.G.S., and the responses to those needs by the Stockton grandparents and Nancy Piedimonte.

The home situation in Oregon and the personal habits of Kellynn Nissen Carr and Rick Carr, with whom she and the girls lived as a household, and their interrelationships, was one center of the court's adjudication of the facts. The other was the child herself.

Rick Carr, the court found, was obligated for child support to his own children, and so had little with which to provide for Kellynn and the two girls. Although presently employed at $7.50 per hour, his work history was not that of steady employment. He is subject to episodes of alcohol abuse and has used marijuana. The court noted that although Kellynn "objected to Rick's excessive drinking, she did not testify that she objected to his using marijuana or to bringing it into the home." The court adopted, "as an equally permissible inference," that Rick continues to use alcohol. The court concluded also, from the ability of the girls E.G.S. and A. to identify the odor of marijuana smoke, that "a member of the household smoked the...