Portwood-Hurt v. Hurt
Decision Date | 31 March 1999 |
Docket Number | No. WD,PORTWOOD-HUR,R,WD |
Citation | 988 S.W.2d 613 |
Parties | Lorrie Louespondent, v. John Thomas HURT, Appellant. 54792. |
Court | Missouri Court of Appeals |
Party acting pro se.
David A. Masters, Macon, for Appellant.
Before RIEDERER, P.J., LOWENSTEIN and ULRICH, JJ.
John Thomas Hurt, appeals from the trial court's judgment in a dissolution of marriage proceeding. Appellant claims the court erred by refusing him a continuance and by allowing him only supervised visitation with his daughter. Appellant also claims the guardian ad litem assigned to the case failed to perform an independent investigation. The judgment is affirmed in part and reversed and remanded in part.
Appellant, John Thomas Hurt and Respondent, Lorrie Lou Portwood-Hurt, were married in Boone County, Missouri, on October 14, 1989. There was one child born of the marriage, Azure Virginia Hurt, born on July 19, 1991. On or about June 6, 1994, the couple separated. On June 13, 1994, Respondent filed a petition for dissolution of marriage. Paragraph 10 of the petition requested that Appellant be awarded only supervised visitation of the child. Respondent's petition alleged several reasons why unsupervised visitation would endanger the child's physical health and impair her emotional development. On July 1, 1994, Appellant filed an answer and cross-petition for dissolution and requested custody of the child subject to visitation by Respondent.
On September 16, 1994, a hearing was held regarding Appellant's and Respondent's motions for an Order Pendente Lite. After a recess, the parties announced they had agreed to a stipulation regarding the pending motions. The trial court heard the stipulation, and agreed that it would be in the best interest of the parties' child, and issued an Order Pendente Lite. The court ordered that: (1) primary care, custody and control of the minor child would be placed with Respondent; (2) Appellant would receive supervised visitation with the child on Thursdays for eight hours, supervised by Barbara Wells; (3) Appellant and Respondent were to submit to a drug screen test immediately following the hearing; (4) Appellant and Respondent were to submit to a psychiatric and medical examination to determine whether either party suffered from a mental disease or defect, anger control problems, or substance abuse problems; (5) Appellant was to pay $379.00 per month in child support.
Appellant and Respondent submitted to a drug screen test immediately following the hearing. Appellant's drug screen report stated that, Appellant did not submit another urine specimen. The Order also required Appellant and Respondent to submit to a psychiatric and physical exam to determine whether either party suffered from a mental disease or defect, anger control problems or substance abuse. A blood test was required by the doctor performing the physical exam to detect substance abuse. Appellant supplied only a urine sample. The test results for the urine test were negative for drugs.
Appellant submitted to a psychiatric examination on November 14, 1994. Dr. Z.A. Ajans, M.D., noted in his evaluation that approximately twelve years prior, Appellant was treated for depression. Ten years prior, Appellant saw Dr. James Shapiro, a psychiatrist, for sleeplessness and mood swings. Dr. James Shapiro diagnosed Appellant with a bipolar disorder. Appellant also saw another psychiatrist, Dr. Keith Pattison for anxiety and depression. Appellant has been in counseling for the past three to four years for anxiety and depression. Appellant admitted to Dr. Ajans that he has a past history of marijuana and methamphetamine abuse. However, Appellant denied any further drug abuse as of June 1994. Dr. Ajans determined that Appellant had adjustment disorder with mixed emotional features, marijuana and methamphetamine abuse by history, and that he had psycho-social stressors related to the separation from his wife.
On September 15, 1995, Appellant's attorney filed a motion to withdraw, stating that he had irreconcilable differences with Appellant and that after contacting Appellant on numerous occasions informing him that he needed to finish answering interrogatories, Appellant failed to cooperate. On September 27, 1995, counsel's motion to withdraw was sustained. On November 27, 1995, a letter was sent by the clerk's office advising the parties that the case was placed on the dismissal docket, and that the cause was subject to dismissal without prejudice for failure of prosecution, unless application was made to the court before the expiration of thirty days. On December 26, 1995, Appellant filed a letter with the clerk's office requesting that the case not be dismissed and informed the court that he was without an attorney and was attempting to find a replacement. On December 29, 1995, the clerk's office sent Appellant a letter stating that Judge Belt had continued Appellant's case until January 30, 1996, giving him time to obtain counsel.
On September 17, 1996, the court ordered Appellant and Respondent to appear on October 11, 1996, to define the issues in controversy and to set the case for trial. On October 11, 1996, by stipulation, the court met in Macon, Missouri. Respondent appeared in person with her attorney and Appellant appeared pro se. The parties agreed to negotiate and the court continued the matter until October 23, 1996. On October 23, 1996, Respondent appeared in person with her attorney and Appellant appeared pro se. The case was set for trial on April 14, 1997.
On April 4, 1997, Appellant sent Judge Belt a letter requesting a continuance. Appellant stated that he had sought the advice of an attorney and that she was willing to take his case if a continuance could be obtained. On April 7, 1997, the trial court denied Appellant's application for a continuance.
On April 15, 1997 the trial began. At the beginning of the trial, prior to any witnesses being called, Appellant orally requested a continuance to secure legal representation. The court denied the application for continuance.
The evidence adduced at trial showed that Appellant uses and sells methamphetamine. Beverly Little testified that she dated Appellant from March 1995 until October of 1995. She testified that Appellant used methamphetamine regularly, that he gave her methamphetamine, and that Appellant had used methamphetamine prior to supervised visits with his child. Lisa Feldman, Respondent's sister, testified that during the summer of 1996, Appellant used methamphetamine and that when she went to his house for the first time to get methamphetamine, he made her remove her clothes to be sure she was not wired, and recording their conversations. Tereca Megee, a friend of Appellant's testified that she had witnessed Appellant sell methamphetamine on many occasions. Donald Megee, also a friend of Appellant's, testified that he also was present on several occasions when Appellant sold methamphetamine.
Evidence at the trial also showed that Appellant has a violent temper. Beverly Little testified that Appellant, "loses control very easily," and has a bad temper. Barbara Wells, who had supervised over a hundred visits between Appellant and the child, testified that since October of 1996, she observed extreme mood swings in Appellant. She also testified that most of his anger was directed towards Respondent. Donald Megee testified that Appellant would become angry and violent when he ran out of methamphetamine.
Evidence at the trial also showed that Appellant was abusive to Respondent. Alicia Cox, a babysitter for the child, testified that she observed Appellant shake Respondent by her hair while she was holding the child. Respondent testified that Appellant has banged his forehead against hers; knocked her down injuring her shoulder and knee; grabbed her by her throat, shoved her in a closet and repeatedly kicked her; pulled her hair, slapped her, bit her, and strangled her. Respondent also testified that Appellant verbally abused her, often calling her derogatory terms. Respondent further testified that Appellant had intentionally hit the child when she was approximately a year and a half old because she was annoying him, and that he unintentionally hit the child when he had shoved and hit Respondent while the child was in her arms.
Evidence was also offered at trial concerning Appellant's violent behavior towards other women. Tereca Megee testified that she observed Appellant's violent mood swings, and was present when Appellant grabbed his former girlfriend, Veda Schultz, by the throat, threw her to the ground and bit her, in front of Veda's child. Beverly Little testified that Appellant had smacked her five-year-old child on top of the head one morning at breakfast; that Appellant had thrown a knife at her during an argument; and that during another altercation he had followed her out to her car and, while she was holding her child, dragged her through gravel.
Evidence from the trial also showed that the child preferred supervised visitation with Appellant. Barbara Wells testified that the child had expressed to her that she did not want to see Appellant by herself and that the child told her Appellant had a temper. Ms. Wells further stated that on several occasions, Appellant would stay in his room most of the day and/or nap during his visitation time with the child. Tereca Megee testified that the child has told her on occasion that she did not want to go to Appellant's house. The child said that, "[i]t's not a happy house." Ms. Megee also testified that the child has exhibited fear in being around Appellant. Lonny Morrow, a psychologist who evaluated the child, testified...
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