Reding v. Reding, s. 17443

• Decision Date: 01 July 1992
• Docket Number: Nos. 17443,17575,s. 17443
• Citation: 836 S.W.2d 37
• Parties: Theda Annette REDING (now Mowry), Plaintiff, and Gary Jones and Paula Jones, Intervenors-Appellants, v. Steve REDING, Defendant-Respondent. Theda Annette REDING (now Mowry), Plaintiff-Appellant, v. Steve REDING, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 37

836 S.W.2d 37

Theda Annette REDING (now Mowry), Plaintiff, and Gary Jones and Paula Jones, Intervenors-Appellants, v. Steve REDING, Defendant-Respondent.

Theda Annette REDING (now Mowry), Plaintiff-Appellant, v. Steve REDING, Defendant-Respondent.

Nos. 17443, 17575.

Missouri Court of Appeals Southern District, Division Two.

July 1, 1992.

Rehearing Denied July 20, 1992.

Application to Transfer Denied Sept. 22, 1992.

William J. Fleischaker, Roberts, Fleischaker & Williams, Joplin, for appellants.

No appearance for respondent.

MONTGOMERY, Judge.

These consolidated appeals arise from two different orders entered in a proceeding to modify custody and visitation orders. Intervenors in the case are Gary Jones and Paula Jones (grandparents) who appeal from a pendente lite order requiring them to pay $5,000 to the attorney of Steve Reding (Steve) and $750 to the guardian ad litem. Theda Annette Reding Mowry (Theda) appeals from an order modifying the Decree of Dissolution of Marriage which now provides her visitation rights for two six-hour supervised visits monthly in Omaha, Nebraska, and requiring her to prepay costs of supervision as a condition to such visits. Neither Steve nor the guardian ad litem filed briefs in this Court.

During this protracted and bitter litigation, the animosity of the parties and the maternal grandparents is reflected throughout the record. Unfortunately, the controversy centers on Chrystal Dawn Reding, born February 21, 1983, during the marriage of Steve and Theda. On July 17, 1986, Chrystal's parents were granted a Decree of Dissolution of Marriage, and her custody was awarded to Steve. Theda was given certain specific visitation rights.

The tranquility (if any ever existed) between Steve and Theda lasted approximately three weeks. On August 7, 1986, Theda filed a motion to modify custody provisions of the decree alleging numerous problems with the custody and visitation arrangements. That motion was amended on June 2, 1987.

On September 12, 1988, Steve filed a counter-motion to modify requesting Theda's visitation rights be terminated. He alleged, in part, that (a) on or about July 12, 1987, Theda, after exercising weekend visitation, failed to return the minor child to him. From July 12, 1987, through August 27, 1988, Theda abducted and concealed the minor child from him, assumed false names for herself and the minor child, removed the minor child from Missouri to Albuquerque, New Mexico, and failed and refused to return the child to him, (b) Theda is emotionally unstable and has made frequent threats that she would cause harm to Steve if he was ever able to regain custody of the minor child, (c) for over thirteen months Theda prevented the minor child from communicating with her father and because of the child's concealment, Steve was unable to communicate with the minor child, (d) Theda failed and refused to provide adequate medical care for the minor child during the thirteen-month period of concealment, and such actions endangered the physical health and impaired the minor child's emotional development.

By April 20, 1990, the grandparents had been allowed to intervene in the motion to modify proceedings. They sought to establish grandparent visitation rights pursuant to § 452.402.1(1), RSMo Supp.1991. ¹ Later, Steve filed a motion pendente lite requesting attorney fees, suit monies and court costs against both the grandparents and Theda. This motion was heard November 9, 1990, where extensive evidence concerning the financial condition of the parties was presented. Steve testified of substantial attorney fees incurred during the litigation. However, nowhere does the record reflect what portion, if any, of his attorney fees are attributable to defending the grandparents' visitation motion. Neither does the record reveal any evidence that the guardian ad litem incurred any time or expense in regard to the grandparents' motion. At the conclusion of the hearing the trial court ordered the grandparents to pay $5,000 attorney fees pendente lite to Steve's attorney and $750 as guardian ad litem fees pendente lite.

Subsequently, the grandparents filed a motion for "court-ordered visitation" which was apparently treated as a request for temporary visitation. In response to this motion the court entered an order which granted a 30-minute visit with the minor child to the grandparents either on December 19, 1990, or December 20, 1990.

Unexplainably, the grandparents filed a voluntary dismissal of their action under Rule 67.01 on January 15, 1991. Trial of the remaining issues took place on April 10, 1991.

At trial, Steve appeared with his attorney and only Theda's attorney appeared. Her absence is unexplained. Theda's attorney announced he was dismissing his client's motion to modify as amended on June 2, 1987, and was prepared to defend the remaining matter, i.e., Steve's counter-motion to modify filed September 12, 1988. Steve proceeded with the presentation of evidence on his motion which consisted of deposition testimony, admissions of Theda and medical reports. During the course of the proceedings both attorneys indicated the parties had agreed on certain restricted visitation rights in favor of Theda. That stipulation and agreement (Exhibit V) was embodied in a four-page document signed by Steve and his attorney but unsigned by Theda. Her attorney announced in open court he was signing Exhibit V which "pertains to visitation rights in favor of my client."

The evidence in the record reveals the following: Theda's testimony in her deposition of October 25, 1989, admits she removed Chrystal from the State of Missouri in 1987 and both were absent approximately thirteen months, during which time she refused to permit any communications between Steve and the minor child. She acknowledged that during a brief period of her absence she delayed obtaining medical treatment for Chrystal because she was afraid of discovery. She indicated she was arrested and the child returned to Steve in August of 1988. Theda related she entered a plea of guilty to a felony charge of "Interference with Custody" (presumably in violation of § 565.150, RSMo 1986) arising from her New Mexico jaunt with Chrystal. She received a suspended imposition of sentence and was placed on probation. Theda's admissions were introduced whereby she acknowledged removal of the child from Missouri to New Mexico and that she hid Chrystal out for approximately thirteen months. She admitted taking steps to avoid detection by changing her identity and that of the child by adopting assumed names and by obtaining false identification. She stated she told people her ex-husband was in the Mafia and he would kill her and the child if he found their whereabouts.

The deposition testimony of Charles Wallander was admitted into evidence. Wallander stated he had dated Theda from January through November of 1989, and during that time she told him if she did not regain custody of Chrystal, she would run off with her again. The witness indicated he had previously been convicted of felony child abuse. He indicated he had previously believed he was possessed by demons.

Medical reports from Lutheran Medical Center in Omaha, Nebraska, concerning treatment and evaluation of Chrystal from February 11, 1991, through March 1, 1991, along with the deposition testimony of Dr. John F. Riedler were admitted into evidence. According to Dr. Riedler, Chrystal had been extremely traumatized due to the disputes between her parents, and she needed a normal environment in order to assure future stability. Dr. Riedler indicated it would not be in the child's best interest to travel from Omaha to Joplin for brief periods of visitation. He felt that once school was out the child should be "eased into" visitation with her mother. He recommended, for the time being, that the visitation take place in some form of a monitored facility.

Finally, Theda's attorney called Steve to the stand, and he testified only of his residence in Omaha, Nebraska, and of his approval of the stipulation regarding Theda's visitation rights.

On April 24, 1991, the court entered its order of modification in which it found (1) jurisdiction over the child, (2) that there had been a change of circumstances so that modification of the visitation provisions of the original decree were necessary to serve the best interests of the child and finding after consideration of all factors set forth in § 452.400, RSMo, that unsupervised visitation by Theda with the minor child would be inappropriate, (3) that the parties had presented a stipulation to the court making certain recommendations, and the court found the stipulation was not unconscionable. The court then enacted visitation provisions identical to those set out in the stipulation and referred to in the first paragraph of this opinion. In addition, the court entered judgment in favor of Steve and against Theda in the amount of $7,000 for attorney fees and awarded the guardian ad litem attorney fees of $2,000 assessed equally against the parties.

Theda ² filed a pro se document on May 9, 1991, called "Motions of Petitioner." The motion alleged, in pertinent part, her attorney had told her that a mutual dismissal by all parties had been agreed upon, and her attorney advised her that Steve's attorney did not follow through with his agreement. She alleges she was advised by her attorney not to appear at trial and that she did not give her attorney authority to enter into any stipulation or agreement. She further alleged the decree was not in the best interest of the minor child and that the decree was dependent upon the stipulation being bona fide, which it was not. Her prayer requested "that the Court void said Decree Modifying Decree of Dissolution of Marriage and set aside said Stipulation and Agreement on the basis that Petitioner's attorney ... did not have authority for same." This motion was overruled by the court...