Pulliam v. Sutton, WD

• Decision Date: 17 February 1987
• Docket Number: No. WD,WD
• Citation: Pulliam v. Sutton, 728 S.W.2d 252 (Mo. App. 1987)
• Parties: Jan Annette (Sutton) PULLIAM, Appellant, v. Wesley Earl SUTTON, Respondent. 38314.
• Court: Missouri Court of Appeals

Page 252

728 S.W.2d 252

Jan Annette (Sutton) PULLIAM, Appellant, v. Wesley Earl SUTTON, Respondent.

No. WD 38314.

Missouri Court of Appeals Western District.

Feb. 17, 1987.

Motion for Rehearing and/or Transfer to

Supreme Court Denied March 31, 1987.

Application to Transfer Denied May 19, 1987.

James D. Worthington, Lexington, for appellant.

J.D. Gorham, Richmond, for respondent.

Before CLARK, C.J., and TURNAGE and NUGENT, JJ.

CLARK, Chief Judge.

In this proceeding to modify the terms of a marriage dissolution decree regarding visitation between respondent father and his minor children, the court enlarged visitation rights to include temporary custody outside the mother's home. The appeal contends the modification order was improperly granted for several reasons, among which is the absence of evidence or a finding that the expanded visitation would further the best interests of the children. We agree and therefore reverse.

The decree dissolving the parties' marriage was entered April 19, 1984. The provision of the decree material here is the award of custody of the children, then aged six years and two years, to the mother with the restriction on the father's visitation to the first and third weekends of each month and then, only in the home of the wife. That limitation was imposed pursuant to a separation agreement entered into between the parties and adopted because of past conduct by respondent involving assaultive behavior.

In April, 1985, the husband filed motions seeking modification of the decree in various respects including the request that his visitation rights with the children be generally enlarged. The motion alleged that the modification would serve the best interests of the children. The motion was heard March 31, 1986. Testimony was presented by the parties and by the present spouses of each. Respondent also introduced, over appellant's objection, a written report by a psychologist who had examined respondent. The report is not a part of the record on appeal and respondent has stipulated that the report was erroneously admitted.

The trial court sustained respondent's motion to increase his visitation ordering that visitation be had "at all reasonable times and places" and minimally, no less frequently than alternate weekends. The parties assume, as do we, that the order apparently abrogated the prior restriction that visitation occur only in appellant's home. Conspicuously absent from the order is any finding that the change in visitation would advance the best interests of the children or that continuation of the existing restrictions would not be in the children's best interests.

The authority of the court to modify visitation rights is limited to circumstances in which the modification would serve the best interests of the children. Section 452.400.2, RSMo. 1986. The same principles govern the determination of a proceeding to modify visitation as control disposition of a motion to change custody. Leimer v. Leimer, 670 S.W.2d 571, 573 (Mo.App.1984). In order to modify a custody decree, the court must find that: (1) facts arising since the prior decree have given rise to change in circumstances of the child or his custodian, and (2) modification is necessary to serve the best interests of the child. Henderson v. Henderson, 622 S.W.2d 7, 9 (Mo.App.1981). The movant seeking the change has the burden of showing that the children's best interests are not served under the existing decree. The personal rights of the parties are of only secondary importance. Cissell v. Cissell, 573 S.W.2d 722, 724 (Mo.App.1978). Change in the circumstances of the non-custodial parent do not constitute evidence supporting any need for modification. In Re Marriage of Scobee, 667 S.W.2d 467, 469 (Mo.App.1984).

Respondent's evidence supporting his motion was directed almost exclusively to complaints that on a number of occasions when he attempted to exercise his visitation rights at appellant's residence, he would find that appellant was not at home and had left a note saying when she would return. Respondent also expressed his dissatisfaction with the visitation restrictions which did not afford him any private communications with the children. There was no evidence that any circumstances of the children or of appellant had changed since the date of the decree or that the limitations on respondent's visitation had operated to the disadvantage of the children. Understandably, in the absence of any supporting proof, the trial court made no finding of a change in circumstances of the children or of appellant or that modification of respondent's visitation rights were necessary to serve the best interests of the children.

The evidence did show respondent had committed two assaults on appellant before the marriage was dissolved and that he had entered a plea of guilty to a criminal charge arising from one of the incidents. The property settlement agreement, which recommended limited visitation, referred to respondent's "actions in the past" and his agreement under the circumstances to limited visitation. Appellant attempted during the motion hearing to adduce evidence concerning respondent's violent disposition, his excessive consumption of alcohol and his psychological problems manifested prior to the entry of the dissolution decree, but the trial judge ruled such evidence to be irrelevant. That rejection of proof material to evaluate respondent's emotional stability and its possible effect on the well-being of the children was plainly erroneous. Keith v. Keith, 708 S.W.2d 350, 353 (Mo.App.1986).

We are mindful that in matters pertaining to visitation rights, the appellate court should give deference to the trial court's assessment of what serves the best interests of the children and that the judgment should be reversed only if it lacks substantial evidence to support it or is against the weight of the evidence or erroneously declares or applies the law. L.L.T. v. P.A.T., 585 S.W.2d 157, 160 (Mo.App.1979). Here, in the absence of evidence or a finding that the best interests of the children would be served by giving respondent unrestricted visitation, the judgment lacks support by the evidence, it is erroneous as a matter of law and must be reversed.

The judgment modifying respondent's visitation rights is reversed and the visitation restrictions imposed by the original decree are ordered reinstated.

All concur.

ON MOTION FOR REHEARING

PER CURIAM.

The holding in this case that a change in the visitation rights of a non-custodial parent must, in like manner to a change in custody, be supported by evidence of a change in circumstances of the child or his custodian, is challenged by respondent on motion for rehearing. He asserts a different rule prevails in the Eastern District of this court, citing Blankenship v. Blankenship, 699 S.W.2d 44 (Mo.App.1985), and perhaps in the Southern District, an inference drawn from Keith v. Keith, 708 S.W.2d 350 (Mo.App.1986). If there be such a divergence in views among the districts, which is not at all certain, this court adheres to the view expressed in the principal opinion under the analysis which follows.

The earliest case that research has disclosed dealing with the issue of what proof is necessary to modify child visitation provisions for the non-custodial parent is Phipps v....