Reece v. Reece, WD

• Decision Date: 10 January 1995
• Docket Number: No. WD,WD
• Citation: 890 S.W.2d 706
• Parties: In re the Application of Pat REECE and Jerry Reece, Appellants, v. John Robert REECE, Respondent. 48776.
• Court: Missouri Court of Appeals

Page 706

890 S.W.2d 706

In re the Application of Pat REECE and Jerry Reece, Appellants, v. John Robert REECE, Respondent.

No. WD 48776.

Missouri Court of Appeals,

Western District.

Jan. 10, 1995.

John R. Shank, Jr., Kansas City, for appellants.

Lawrence W. Ferguson, Columbia, for respondent.

Before KENNEDY, P.J., and BRECKENRIDGE and SPINDEN, JJ.

BRECKENRIDGE, Judge.

Jerry and Pat Reece appeal the trial court's dismissal of their application for guardianship of Brandon Reece, their thirteen-year-old mentally handicapped nephew. On appeal, Jerry and Pat Reece raise four points. They allege (1) that the trial court misapplied Missouri law by ruling that the best interests of Brandon could not be considered in determining whether to grant their application for guardianship; (2) that the trial court erred in sustaining the motion requesting dismissal of their application for guardianship filed by John Robert Reece (Bob), Brandon's father, because Bob had failed to fulfill his duties as natural guardian by relying on others to care for his son; (3) that the trial court erred in denying Jerry and Pat's guardianship application because, as a matter of law, Brandon's natural father was unfit, unwilling and unable to fulfill his guardianship duties, and because, as a matter of law, the best interests of Brandon warranted the grant of guardianship to Jerry and Pat; and (4) that improper venue resulted from the transfer of the case from Clay County to Cooper County. The order of the trial court dismissing the petition for appointment of guardian is reversed and remanded.

Approximately two weeks after his birth, Brandon and his parents, Bob and Julie Reece, were involved in a car accident. As a result of the collision, Julie was killed and Brandon was injured. Brandon's injuries caused severe, permanent mental and physical disabilities. Due to brain damage, Brandon's functional age is below the one-year level. Brandon is prone to daily seizures, suffers from a variety of respiratory problems and is unable to communicate verbally or walk without assistance. In addition, Brandon's vision is impaired, and he is required to take a variety of medications.

After the accident, Bob claimed that he was unable to care for Brandon. When Brandon was nine months old, Bob voluntarily placed him in the physical custody of Jerry and Pat Reece, Brandon's uncle and aunt. Jerry and Pat have continuously raised Brandon from that point forward. Bob testified that, after February 2, 1985, when he married his present wife, Ila, he would have been able to care for Brandon, but he declined to do so. Bob also indicated that he and Ila normally visited Brandon's home three to four times a year. Prior to the filing of this petition, however, Bob had not seen Brandon for at least one year and had not visited Brandon's home in as much as three years.

On February 16, 1993, Jerry and Pat filed an application in the Circuit Court of Clay County to acquire guardianship over Brandon. Shortly thereafter, on March 12, 1993, Brandon's father filed his own application for guardianship. In addition, Bob filed a motion to change venue from Clay County, where Brandon lives with Jerry and Pat, to Cooper County, where Brandon's conservatorship is pending and Bob resides. Bob's motion was sustained by the trial court.

At the evidentiary hearing in the Cooper County Circuit Court, Probate Division, the trial court found that Bob was not a "loving father," and that it would be "extremely cruel to remove this child from [Jerry and Pat] ..., especially at this late date in this child's life." The judge also stated that he did not think one could find better care than what Brandon is receiving through Jerry and Pat. Nonetheless, the court sustained Bob's oral motion to dismiss the application at the close of the movant's evidence, because the court claimed it was without the statutory authority to grant Jerry and Pat's guardianship application.

In a court-tried case, "a motion to dismiss filed at the close of a plaintiff's case is treated 'as a submission on the merits, requiring the court to determine credibility of the witnesses and to weigh the evidence.' " Pasta House Co. v. Williams, 833 S.W.2d 460, 461 (Mo.App.1992) (quoting Wyrozynski v. Nichols, 752 S.W.2d 433, 436-37 (Mo.App.1988)). Consequently, the evidence is viewed in the light most favorable to the judgment, id., provided the court has not made specific findings of fact to the contrary. Rule 73.01(a)(3). The lower court's judgment is sustained unless it is unsupported by substantial evidence, is against the weight of the evidence or erroneously applies or declares the law. Pasta House, 833 S.W.2d at 461. This court holds that the lower court's order reflects a reversible misapplication of law.

Because the issues raised in Jerry and Pat's point two is dispositive of the case, this court will not address their remaining contentions, except those likely to arise on remand.

In point two, the crux of Jerry and Pat's claim of error is that the trial court misapplied the law when it dismissed their application for appointment as Brandon's guardians pursuant to § 475.030.4(2), RSMo 1986. ¹ Section 475.030.4(2) authorizes the granting of letters of guardianship for a minor "[w]here the parents or the sole surviving parent of a minor are unwilling, unable or adjudged unfit to assume the duties of guardianship." Jerry and Pat claim that the trial court erroneously applied the law when it determined that Bob had fulfilled his duties as natural guardian by merely placing Brandon in the home of his aunt and uncle.

The appointment of a guardian for a minor child is governed by three statutes, §§ 475.025, 475.030 and 475.045. Section 475.025 provides that the father and mother, or survivor, are natural guardians who have the custody and care of the person of their child, as well as responsibility for the child's education. As indicated previously, under § 475.030, letters of guardianship may issue for a minor child when the child has no parent living, has parents who are unwilling, unable or unfit to assume the duties of guardianship or has parents whose parental rights have been terminated. Section 475.045 states that the parent or parents of a minor have first priority to be appointed guardian or conservator of the minor, except as provided in § 475.030. Section 475.045 is seemingly in conflict with the other two statutes because there is no need to grant parents priority for appointment as guardians since no guardian is to be appointed so long at least one parent is fulfilling the duties of a natural guardian.

"The primary rule of statutory construction is to ascertain the intent of the lawmakers from the language used, to give effect to that intent if possible, and to consider words used in the statute in their plain and ordinary meaning." Metro Auto Auction v. Director of Revenue, 707 S.W.2d 397, 401 (Mo. banc 1986) (quoting Blue Springs Bowl v. Spradling, 551 S.W.2d 596, 598 (Mo. banc 1977)). When a statute is clear and unambiguous, courts are bound by the statute's manifest language. Wolff Shoe Co. v. Director of Revenue, 762 S.W.2d 29, 31 (Mo. banc 1988). "Courts, however, look beyond the plain and ordinary meaning of the statute when its meaning is ambiguous or will lead to an illogical result which defeats the intent of the legislature." Kansas City Star Co. v. Fulson, 859 S.W.2d 934, 938 (Mo.App.1993). Statutes are considered in pari materia when they relate to the same matter or subject. State ex rel. Rothermich v. Gallagher, 816 S.W.2d 194, 200 (Mo. banc 1991). The rule of construction in such instances proceeds upon the supposition that the statutes in question are intended to be read consistently and harmoniously in their several parts and provisions. Id.

When reading the three statutes in pari materia, 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. It is only when no natural guardian is fulfilling the parental duties and obligations is the appointment of a statutory guardian necessary. Considering this statutory framework, we address whether the trial court misapplied the law in finding that Bob was not unwilling, unable and unfit to discharge his required duties as natural guardian of Brandon.

Bob's obligations and responsibilities to care for Brandon, as his sole parent and natural guardian, are much greater than the statutory duties of a court-appointed guardian. Under § 475.025, parents have "the custody and care of their [children's] persons and education." Case law and other statutes define what rights and obligations a parent with "custody and care" assumes. See 5B John A. Borron, Jr., Missouri Practice: Probate Law and Practice §§ 1836-1840, 1847-1848 at 127-140, 151-54 (2d ed. 1992). The scope of Bob's parental responsibilities, however, includes some duties which are comparable to those of a statutory guardian. A statutory guardian must provide for a ward's "education, support and maintenance" pursuant to § 475.120.1.

One distinction between a natural guardian and a statutory guardian is that a parent's duty to provide for a child is a personal obligation which cannot be satisfied when, by chance, another provides that service in the parent's stead. For example, when parents are tried for criminal non-support of their children, "[t]he fact the minor child does not suffer deprivation of necessary food, clothing, lodging, medical or surgical attention, or that such needs are being supplied by another, does not abrogate the parent's obligation under the statute." State v. Morovitz, 867 S.W.2d 506, 508 (Mo. banc 1993) (emphasis added). Likewise, under the law of parental abandonment, it would be unfathomable if "a parent could have absolutely no contact with his child, spend no money on the cost of raising his...