Scott v. Scott

• Decision Date: 09 November 2004
• Docket Number: No. WD 63265.,WD 63265.
• Parties: Renae Jo SCOTT, Appellant, v. Donald Glenn SCOTT and Janice E. Kite, Respondents.
• Court: Missouri Court of Appeals

147 S.W.3d 887

Renae Jo SCOTT, Appellant, v. Donald Glenn SCOTT and Janice E. Kite, Respondents.

No. WD 63265.

Missouri Court of Appeals, Western District.

November 9, 2004.

Angela L. Peterson, Columbia, MO, for appellant.

Susan Ford Robertson, Columbia, MO, for respondents.

Before: ULRICH, P.J., and LOWENSTEIN and EDIN H. SMITH, JJ.

EDWIN H. SMITH, Chief Judge.

Renae Ponder, formerly Scott, appeals from the judgment of the Circuit Court of Boone County dissolving her marriage to the respondent, Donald Scott, with respect to its award of sole physical custody of their minor child, Danton Scott, to a third-party, Janice Kite, pursuant to § 452.375.5(5).¹ Pursuant to Rule 75.01,² the trial court had previously set aside its judgment awarding sole physical custody of Danton to the appellant.

The appellant raises five points on appeal. In Point I, she claims that the trial court erred in vacating its original judgment, awarding her sole physical custody of Danton, because it lacked good cause for doing so, as required by Rule 75.01. In Point II, she claims that the trial court erred in awarding third-party custody of Danton to Kite, rebutting the parental presumption favoring custody being awarded to her, based on a finding that she was unfit to have custody, because rebuttal of the presumption on that basis was not supported by the record. In Point III, she claims that the trial court erred in awarding third-party custody of Danton to Kite, rebutting the parental presumption favoring custody being awarded to her, based on a finding that Danton had bonded with Kite such that to remove him from her custody would be detrimental to his welfare, because the trial court's rebuttal of the presumption on that basis misapplied the law and was not supported by the record. In Point IV, she claims that the trial court erred in denying her motion for a continuance, filed the day before the trial, in which she alleged that she had not received a full response to her discovery requests, because, in doing so, the court denied her, her right to due process by forcing her to proceed without "notice of [the] claims against her[.]" In Point V, she claims that the trial court erred in awarding her visitation, because the court failed to provide her with reasonable visitation, as required by § 452.400.1.

We affirm.

Facts

The parties were married on September 8, 1994. One child was born of the marriage, Danton Scott, born on April 1, 1996. Shortly after Danton's birth, in August 1996, the parties separated.

Following separation, Danton resided with the appellant in Columbia, Missouri. During this time, the appellant and Kite entered into a romantic relationship, which led to the appellant and Danton moving into Kite's home. Eventually, however, the relationship deteriorated, and the appellant and Danton moved out. Regardless, Kite, with the appellant's permission, continued to be actively involved in Danton's life.

In August 1999, the appellant informed Kite that she was moving to Sedalia so that she could live with her new girl-friend, Freda Swigert. Because she wanted to "test out" the situation before moving Danton, the appellant left Danton in Kite's custody, as she and Scott agreed that Kite's home was the best environment for Danton. While living in Sedalia, the appellant failed to maintain any sort of consistent contact with Danton, often failing to show up for scheduled visits. In addition, she failed to support Danton financially.

On September 30, 2002, the appellant filed her petition for dissolution of marriage, naming both Scott and Kite as respondents, requesting, inter alia, that the "care, custody and control of [Danton] be awarded to [her]," subject only to Scott's visitation rights. Thereafter, both respondents filed an answer to the appellant's petition, with Kite praying that "the Court dissolve the parties' marriage and place the parties' minor child in the care of Respondent, Janice E. Kite[.]" Scott, believing it was in Danton's best interest to remain with Kite, did not seek custody.

The appellant's petition was set to be heard on March 11, 2003. On March 10, 2003, the appellant filed a written motion for a continuance, alleging that: "Petitioner seeks a continuance of the trial in this matter on the grounds that counsel has not received responses to discovery[,]" and that "Counsel for Petitioner will not have time to review the discovery before the trial date of March 11, 2003." The trial court denied the motion.

On March 11, 2003, the appellant's petition was taken up and heard by the trial court. The hearing was continued until April 18, 2003. The only issue in controversy was the proper custodial arrangement for Danton. The appellant sought to have sole physical custody awarded to her, whereas the respondents sought to have sole physical custody awarded to Kite. At the close of evidence, the trial court stated: "All right. All evidence closed. Now, need findings of fact and conclusions of law, I seem to recall. Petitioner to file proposed findings of fact and conclusions of law within 20 days ... Respondent[s] 10 days thereafter." The appellant submitted her proposed judgment within the allotted time. The respondents, however, did not. Subsequently, on May 27, 2003, the trial court entered judgment awarding the appellant sole physical custody of Danton.

On May 28, 2003, the respondents filed a "MOTION TO SET ASIDE JUDGMENT AND ALLOW FILLING OF RESPONDENTS PROPOSED JUDGMENT AND FINDINGS," asserting that their failure to file a proposed judgment within the allotted time was due to a misunderstanding, and was unintentional. On June 3, 2003, the motion was heard and sustained, and the judgment of May 27, 2003 was ordered vacated. On that same date, the respondents filed their proposed judgment. On June 5, 2003, without hearing any additional evidence, the trial court entered its judgment, awarding third-party physical custody of Danton to Kite, "subject to visits as proposed by the Guardian ad Litem." In support of its award of third-party custody of Danton, the trial court concluded that "[the appellant] is unfit and unsuitable to have custody of her child," and that "Danton's welfare, and indeed his best interests, are to place Danton, judicially, in the only home he knows, where he thrives, where he is loved, where he has not been abandoned, with the person who has, for the life he remembers, been his parent." In reaching these conclusions, the trial court found, in pertinent part, that:

a. When the child, Danton, was a toddler, following the separation of the parents, the child resided with [the appellant], and had regular and frequent visits with [his father, Donald Scott]. [The appellant] did not maintain a steady residence, nor a visitation schedule.

b. ...

c. [Kite and the appellant] became acquainted, and [Kite] provided support of various kinds to [the appellant] and Danton.

d. [Kite] provided care for Danton on a regular basis, eventually caring for Danton more than [the appellant].

e. [The appellant] moved from Columbia to Sedalia in August of 1999, testifying that she had fallen in love with another woman, and that she wanted to test things out with this woman, Freda, before moving her child to live with the two women.

f. [The appellant] left Danton with [Kite] when she moved to Sedalia.

g. [The appellant] did not provide [Kite] with any financial support for Danton.

h. ...

i. [The appellant] failed to keep in constant contact with Danton, and would indicate she would be present for a visit, but then did not arrive.

In addition, the court found that:

a. Danton has his own room at [Kite's] home.

b. Danton thinks of [Kite] like a `mom' because she provides his care.

c. He testified that when he visited [the appellant] at Freda's trailer, [she] was typically in her bedroom, and not accessible to him.

d. Danton does not trust [the appellant] because of the yelling and fights he has seen between [the appellant] and Freda, and he `freaks out' when [the appellant] goes into her bedroom and stays there.

On July 1, 2003, the trial court entered an amended judgment, which did not make any substantive changes.

On July 31, 2003, the appellant filed a "MOTION TO VACATE, REOPEN, CORRECT, AMEND AND/OR MODIFY JUDGMENT AND MOTION FOR NEW TRIAL," alleging, inter alia, that the court lacked good cause for setting aside its May 27, 2003, judgment. On August 21, 2003, the trial court denied the motion.

This appeal followed.

I.

In Point I, the appellant claims that the trial court erred in vacating its original judgment, awarding her sole physical custody of Danton, because it lacked "good cause" for doing so, as required by Rule 75.01. Specifically, she claims that "the only reason for [vacating] the judgment was to allow [the] respondents to submit a proposed judgment and this reason does not constitute good cause."

Rule 75.01 provides, in pertinent part, that: "The trial court retains control over judgments during the thirty-day period after entry of judgment and may, after giving the parties an opportunity to be heard and for good cause, vacate, reopen, correct, amend, or modify its judgment within that time." Hence, "[u]nder Rule 75.01, the trial court retains inherent power during the thirty-day period after entry of its judgment to amend [or vacate] the judgment upon a finding of good cause." Stroup v. Leipard, 981 S.W.2d 600, 603 (Mo.App.1998). Although the phrase good cause "eludes a precise definition," it refers to a remedial purpose and is interpreted liberally so as to avoid manifest injustice. Id."On appeal from a trial court's order amending [or vacating] a judgment under Rule 75.01, this court is limited to a determination of whether the trial court had good cause within the meaning of the rule[.]" Id.

The appellant claims that the trial court lacked good cause for vacating its judgment, awarding her physical custody of Danton, because "the only reason for [vacati...