Suffian, f/k/a Usher v. Usher

• Decision Date: 30 May 2000
• Citation: 19 S.W.3d 130
• Parties: (Mo.banc 2000) . Lauren Suffian, f/k/a Lauren Usher, Respondent, v. David R. Usher, Appellant. Case Number: SC82390 Supreme Court of Missourif Handdown Date: 0
• Court: Missouri Supreme Court

19 S.W.3d 130 (Mo.banc 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Lauren Suffian, f/k/a Lauren Usher, Respondent, v. David R. Usher, Appellant.

Case Number: SC82390

Supreme Court of Missourif

Handdown Date: 05/30/2000

Appeal From: Circuit Court of the City of St. Louis, Hon. Thomas J. Frawley

Counsel for Appellant: Jack J. Cavanagh and Paul J. Vaporean

Counsel for Respondent: Susan M. Hais and James P. Carmody

Opinion Summary:

The father moved to modify custody, alleging the mother neglected the children's education and general care and interfered with his visitation. The court appointed a guardian ad litem for the children. The mother also filed a motion to modify. The father sought to disqualify the GAL under section 452.423.1, which gives the parties the right to disqualify a GAL once without cause. The court denied his motion; awarded mother legal and primary physical custody and father temporary physical custody; and ordered father to pay past medical and hospital costs for the children, the majority of the GAL's fees, and the mother's attorney's fees. The father appealed.

AFFIRMED.

Court en banc holds:

(1) The trial court erred by denying the father's motion to disqualify the GAL. Section 452.423.1 is constitutional. It does not deprive the child of a GAL; it merely grants the right to disqualify a particular GAL once. It is not usurpation of judicial power to change or revoke a power created by statute, namely assigning a GAL. The father's motion was timely filed.

(2) The error was harmless and immaterial. There is independent evidentiary support for the judgment. The court minimally depended on the GAL's involvement and recommendation.

(3) No sufficient change in circumstances of the mother or children requires an award of custody to the father to protect the children's best interests. The court concluded the mother served the children's best interests better.

(4) The court did not err in ordering the father to pay part or all of the GAL, attorney, and medical fees and expenses.

Opinion Author: Ronnie L. White, Judge

Opinion Vote: AFFIRMED. Limbaugh, Covington, Holstein, Wolff and Benton, JJ., concur; Price, C.J., concurs in result.

Opinion:

David R. Usher appeals from a judgment denying his motion to modify custody provisions of a marriage dissolution decree, and granting in part and denying in part Lauren Suffian's motion to modify. Usher also claims the trial court erred by denying his section 452.423 motion to disqualify and remove the guardian ad litem and declaring the statute unconstitutional. We hold section 452.423.1 is constitutional and that the trial court erred in deciding otherwise, but affirm the judgment because the error was harmless and immaterial and the judgment was otherwise supported by the evidence.

I. FACTUAL BACKGROUND

The marriage of David Usher ("Father") and Lauren Suffian ("Mother") was dissolved on November 4, 1988. The decree of dissolution granted Mother general care, custody, and control of the two minor children of the marriage, M.U. and E.U., and granted Father reasonable temporary custody and visitation rights. In March 1998, Father filed a motion to modify the decree of dissolution requesting legal and primary physical custody of the children. Father claimed a change in the circumstances and best interests of the children justified a change in custody because Mother neglected the education and general care of the children and interfered with Father's visitation rights. In April 1998, the trial court appointed a guardian ad litem ("GAL") for the children, presumably under section 452.423.1, RSMo Supp. 1997, because Father's motion alleged neglect. In May, Mother filed her own motion to modify, requesting legal custody, the restriction of Father's periods of temporary custody and visitation, an increase in support payments, and attorney's fees.

On August 28, 1998, an amended section 452.423.1 became effective, enabling parties in custody proceedings the right to disqualify a GAL once in each proceeding without cause.¹ Within the time allotted by the statute, Father filed a motion to disqualify and remove the guardian ad litem on August 28, 1998, followed by an amended motion on September 1. Trial began on September 4, 1998, whereupon the trial court orally denied Father's motion to disqualify. It found section 452.423.1 violated "[d]ue process and any other constitutional provisions that may be applicable." The trial court then heard testimony from the family, school administrators, physicians treating the children, and the director of a residential facility treating M.U. The GAL never testified, but called one witness, presented some documentary evidence, and offered recommendations to the trial court. In December 1998, the trial court issued written findings of fact, conclusions, and a judgment modifying the decree of dissolution. It awarded Mother legal custody and primary physical custody and Father temporary physical custody of the children. It also ordered Father to pay Mother for past medical and hospital costs for treating the children, the majority of the GAL's fees, and Mother's attorney's fees.

Father raises three points on appeal. First, he claims section 452.423.1 is constitutional and the trial court erred by denying his motion to disqualify the GAL. Father asks this Court to reverse the judgment, remand for a new trial, and order the trial court to appoint a new GAL. Second, he claims the custody judgment of the trial court should be reversed on the merits because it was a misapplication of the law, against the weight of the evidence, and not supported by credible evidence. Finally, Father claims the trial court abused its discretion by ordering him to pay Mother's attorney fees and the majority of the GAL's fees.

II. THE CONSTITUTIONALITY OF SECTION 452.423.1

The trial court erred by denying Father's motion to disqualify the GAL because section 452.423.1 is constitutional, grants a party the right to disqualify once as a matter of right, and Father's motion was timely filed. Section 452.423.1, as amended, became effective August 28, 1998. The amended portion, in pertinent part, reads as follows:

Disqualification of a guardian ad litem shall be ordered in any legal proceeding only pursuant to chapter 210 RSMo, or this chapter, upon the filing of a written application by any party within ten days of appointment, or within ten days of August 28, 1998 if the appointment occurs prior to August 28, 1998. Each party shall be entitled to one disqualification of a guardian ad litem in each proceeding, except a party may be entitled to additional disqualifications of a guardian ad litem for good cause shown. (Emphasis added).

"When statutory language is clear, courts must give effect to the language as written."² Here, the words "shall be ordered" and "shall be entitled" clearly entitle parties to disqualify the GAL once as a matter of right and give the trial court no discretion to refuse.³ In addition, the legislature amended section 453.423.1 expressly to add the above-quoted language; the prior version did not contain it.⁴ "In construing a statute, the Court must presume the legislature was aware of the state of the law at the time of its enactment."⁵ We presume, therefore, the legislature intended to give parties a right to disqualify and deprive the court of any discretion. Accordingly, the trial court had no discretion to deny Father's timely filed motion to disqualify the GAL.

We also find the amended version of 452.423.1 is constitutional. The legislature created for children a statutory right to a GAL under section 452.423 when abuse or neglect is alleged. The legislature acted within its power to amend section 452.423.1, therefore, to enable parties to disqualify a GAL once as a matter of right.

Statutes are presumed to be constitutional.⁶ Accordingly, the burden to prove a statute unconstitutional rests upon the party bringing the challenge.⁷ This Court will not invalidate a statute "unless it clearly and undoubtedly contravenes the constitution and plainly and palpably affronts fundamental law embodied in the constitution."⁸ Mother's argument, that section 452.423.1 violates the constitutional rights children may have to due process or counsel, does not overcome this presumption of constitutionality. Whether a statute depriving children of a GAL in a case where abuse or neglect is alleged would violate a child's right to due process or counsel is inconsequential because section 452.423.1 does not deprive children of a GAL.⁹ It merely gives the parties one opportunity to disqualify a particular GAL, after which the trial court must appoint another if abuse or neglect is alleged.¹⁰

Mother also does not show section 452.423.1 violates article II, section 1 of the Missouri Constitution, which prohibits one branch from exercising any power properly belonging to another.¹¹ Mother argues the right to select and the discretion to disqualify a GAL are judicial powers that section 452.423.1 improperly exercises. She fails, however, to establish this right and discretion are judicial powers granted by the constitution. To the contrary, as noted, the power of the court to assign a GAL arises from the legislative enactment of section 452.423. Absent a constitutional provision to the contrary, it is not a usurpation of judicial power to change or revoke a power created by statute.¹² In sum, Mother has not overcome the presumption that section 452.423.1 is constitutional and the trial court erred by denying Father's motion to disqualify the GAL.

Despite the error, we do not reverse the judgment because the error was harmless, immaterial to the merits of action, and there is independent evidentiary support for the judgment of the trial court.¹³ Father alleges the GAL violated criminal and ethical rules by interfering with his custodial and visitation rights,¹⁴ but...