Shoemaker v. Shoemaker, WD

• Decision Date: 02 July 1991
• Docket Number: No. WD,WD
• Parties: Susan Jane SHOEMAKER, Respondent, v. Glenn Dean SHOEMAKER, Sr., Appellant. 43604.
• Court: Missouri Court of Appeals

Page 250

812 S.W.2d 250

Susan Jane SHOEMAKER, Respondent, v. Glenn Dean SHOEMAKER, Sr., Appellant.

No. WD 43604.

Missouri Court of Appeals Western District.

July 2, 1991.

Andrew C. Webb, Sedalia, for appellant.

George R. Lilleston, Clinton, for respondent.

Before LOWENSTEIN, P.J., and TURNAGE and FENNER, JJ.

FENNER, Judge.

Glenn Dean Shoemaker appeals a post-dissolution decree denying his Motion to Modify Decree of Dissolution of Marriage which challenged child custody and visitation provisions of the original decree. He also appeals a portion of the post-dissolution decree awarding Susan Jane Shoemaker an increase in child support.

The parties were married in November, 1982. One child, Jason Shoemaker, born to the marriage in April, 1983, is presently and has been the subject of an ongoing dispute between the parties. Within a year after the child was born, the parties separated and Susan Shoemaker filed a Petition for Dissolution of Marriage. A decree of dissolution was entered September 12, 1984, which Glenn Shoemaker appealed to this court, claiming the marriage was not irretrievably broken. This court, in Shoemaker v. Shoemaker, 708 S.W.2d 235 (Mo.App.1986), reversed the trial court and remanded the case with directions to enter a decree of legal separation in lieu of the decree of dissolution. On September 8, 1986, the Decree of Legal Separation was converted to a Decree of Dissolution of Marriage. Shortly thereafter, Mr. Shoemaker filed a Motion to Amend Judgment, a Request for Execution and Writ of Execution and a Request for a Change of Judge. The Missouri Supreme Court assigned The Honorable Stephen W. Angle to the case. On September 9, 1987, Mr. Shoemaker filed a Verified Motion for Order to Show Cause alleging that Susan Shoemaker had refused to allow visitation. An Order to Show Cause was entered September 11, 1987. On June 8, 1988, Mr. Shoemaker filed a Motion to Modify the Decree of Dissolution. In pertinent part, the Motion to Modify filed by Mr. Shoemaker alleged that Susan Shoemaker had denied him periods of visitation without offering substitutions for those time periods and that she had enrolled the child in day care for the purpose of denying visitation privileges on Thursdays.

Susan Shoemaker filed an Answer and Counter-motion in response to the Motion to Modify, requesting, among other things, an increase in child support. On June 12, 1990, the trial court heard evidence and subsequently ruled the Motion for Contempt was without merit and denied the Motion for Modification. The trial court found a substantial and continuing change of circumstances existed sufficient to modify the original decree with regard to visitation and support. Glenn Shoemaker now appeals alleging six points of error.

In his first point, Mr. Shoemaker argues that the trial court erred in overruling his Verified Motion for Order to Show Cause because substantial evidence was presented to show that Susan Shoemaker, without good cause, had failed to comply with the specific visitation rights set forth in the decree of dissolution.

The original Decree of Dissolution granted Susan Shoemaker primary custody of the child. Glenn Shoemaker was granted visitation on the first and third weekends of every month from 6:00 p.m. Friday to 6:00 p.m. Sunday. He was also granted visitation on Thursdays of the week, following the weekends of visitation, from 6:00 p.m. Thursday to 6:00 p.m. Friday, until the child commenced public school. Mr. Shoemaker was to have visitation for two consecutive weeks during the months of June, July and August. Custody of the child was to alternate between the parties on Thanksgiving, Christmas and the child's birthday.

Mr. Shoemaker testified that he has been denied Thursday visitation since September of 1987, when the child began attending pre-school. He also testified that he drove some 350 miles round trip three to four times per month to pick up the child and on many occasions he was told the child was ill and no visitation would be allowed.

Mr. Shoemaker cites to § 452.400.3, ¹ which requires the court to mandate compliance with the order for visitation and allows the non-custodial parent to file a motion for contempt in the event of noncompliance. If the court finds that the "order for visitation has not been complied with, without good cause, the court shall exercise its discretion in providing a remedy, which shall include, but not be limited to, a compensatory period of visitation or temporary custody at a time convenient for the noncustodial parent not less than the period of time denied,...."

As previously stated, Glenn Shoemaker was originally awarded visitation from 6:00 p.m. Thursday to 6:00 p.m. Friday in the week following the visitation provided for on the first and third calendar weekends of each month, until the child commenced public school. It is Mr. Shoemaker's contention that when Susan Shoemaker enrolled the child in daycare she began denying his Thursday night visitation granted him in the Decree of Dissolution because it was her opinion that the child had commenced public school. He also contends that when the child was ill, Susan Shoemaker denied him visitation, thereby causing him to forfeit his visitation.

Mr. Shoemaker argues that the trial court was in error for failing to find Susan Shoemaker in contempt and pursuant to § 452.400.3, should have awarded him compensatory visitation or temporary custody for a period of time no less than the period of time denied by Susan Shoemaker. Mr. Shoemaker appears to seize on the language of § 452.400.3 which allows the court to grant compensatory periods of visitation following a finding of contempt. However, pursuant to § 452.400.3, the court, before holding the custodial parent in contempt, must first find an absence of good cause for failure to comply with the visitation order. After hearing the evidence, the trial court found that Susan Shoemaker was not in contempt with regard to the Thursday night visitation problem.

In matters pertaining to visitation rights, this court gives deference to the trial court's assessment of what serves the best interests of the child and that judgment should be reversed only if it lacks substantial evidence to support it, it is against the weight of the evidence or erroneously declares or applies the law. Pulliam v. Sutton, 728 S.W.2d 252, 254 (Mo.App.1987). Furthermore, in child custody and visitation cases, courts are reluctant to impose the harsh sanction of contempt upon a parent absent a finding that disobedience of a court order is willful and intentional. Shanks v. Shanks, 603 S.W.2d 46, 48 (Mo.App.1980).

In the present case, there is nothing in the record to suggest that the court considered anything other than the best interest of the child. Likewise, there exists no evidence that Susan Shoemaker willfully and intentionally set upon a course designed to deprive Glenn Shoemaker of his visitation privileges. On the contrary, there was evidence that Susan Shoemaker, through her attorney, contacted Glenn Shoemaker's attorney in August of 1987, to request consent to alter the visitation period for Thursday evenings so that the child could attend pre-school. Mr. Shoemaker stated that he had no objection to the child attending pre-school, but that his desire was to alter the visitation day in order to substitute for those time periods he would be missing visitation. There is also evidence that Susan Shoemaker did offer alternative visitation on various occasions. Thus, from the evidence, there is nothing to suggest that the trial court erred in failing to hold Susan Shoemaker in contempt for denying visitation without good cause or for willfully or intentionally denying Thursday night visitation.

Mr. Shoemaker's complaint that Susan Shoemaker denied visitation when the child was ill has no merit and could not, in this case, form the basis for a finding that noncompliance with the visitation order was without good cause. Mr. Shoemaker argues that on three occasions he drove all the way from Sedalia to Joplin, Missouri, and only upon arrival was he informed that the child was ill. However, there is evidence in the record from which the trial court could have found that Mr. Shoemaker was given notice of the child's illness, as in each of the three complained of instances he brought local law enforcement officers along when he attempted to exercise his visitation. The trial court did not err in failing to hold Susan Shoemaker in contempt for any reason alleged by Glenn Shoemaker. Point one is denied.

Points two and three are taken up together as point three raises an issue which is merely an extension of one of the issues raised in point two. In point two, Mr. Shoemaker argues that the trial court erred in overruling his Motion to Modify the Decree of Dissolution in that it failed to find a change in circumstances requiring a change of custody. He points to three factors which he believes justified the change in custody, to wit: (1) Susan Shoemaker's interference with his visitation rights; (2) Susan Shoemaker's frequent moves and unstable lifestyle; and (3) Susan Shoemaker's immoral conduct in the presence of the minor child.

When custody has been once adjudicated, it is presumed that the custodian remains suitable and the burden of proving a change of circumstance sufficient to call for a change of custody is on the party seeking the change. Downey v. Downey, 696 S.W.2d 336, 337 (Mo.App.1985) (citation omitted). Custody should...