Turley v. Turley
| Decision Date | 09 November 1999 |
| Citation | 5 S.W.3d 162 |
| Parties | (Mo.banc 1999) . Supreme Court of Missouri Sharon M. Turley, Respondent, v. Dave B. Turley, Appellant. Case Number: SC81495 Handdown Date: |
| Court | Missouri Supreme Court |
Appeal From: Circuit Court of Cole County, Hon. Patricia S. Joyce
Counsel for Appellant: Christina R. Neff and Mark A. Richardson
Counsel for Respondent: Edward C. Clausen and James W. Gallaher, Jr.
Opinion Summary:
The father had visitation rights every other weekend and longer visitation periods. The circuit court modified the father's visitation rights to limit the every other weekend visits to the children's hometown, which is approximately 168 miles from his residence, during 3 winter months. The father appealed.
REVERSED AND REMANDED.
Court en banc holds:
1. A court may modify visitation rights when modification would serve the best interests of the child. Section 452.400.2. Pulliam v. Sutton, 728 S.W.2d 252 (Mo. App. 1987), which imported the more rigorous standard of the child custody statute and required a change in circumstances to modify visitation, is overruled.
2. To restrict visitation, section 452.400.2 requires the trial court to find the children's physical health was endangered or their emotional development impaired by the previous visitation arrangements. To the extent some cases have held that only an "entire restriction" triggers the findings, they are overruled. For section 452.400.2 to apply, the modification must restrict--or limit in the ordinary meaning--visitation compared to the original arrangement. The order in the present case restricts visitation. The court must, therefore, make the requisite section 452.400.2 findings.
3. The father made no attempt to appeal the order directing him to pay the mother's costs and fees.
This Court is without jurisdiction to decide this issue.
Opinion Vote: REVERSED AND REMANDED. All concur.
The Cole County circuit court modified the visitation rights of David B. Turley. Mr. Turley appeals from that modification. This Court ordered the case transferred to this Court; therefore, jurisdiction is proper pursuant to Mo. Const. art. V, sec. 10.
On August 24, 1995, the circuit court of Cole County entered its order dissolving the marriage of Mr. Turley and Sharon M. Turley. The court gave Mr. Turley and Ms. Turley joint legal custody of their two children, ages seven and five at that time, with primary physical custody to Ms. Turley and visitation rights to Mr. Turley. Prior to their separation, both Mr. Turley and Ms. Turley lived in Jefferson City. However, by the time of the separation agreement, Mr. Turley was living on the family farm located approximately 168 miles from Jefferson City and Ms. Turley continued to reside in Jefferson City. The separation agreement gave Mr. Turley visitation rights every other weekend and other longer visitation periods. On the weekends that Mr. Turley has custody of the children, he is allowed to pick up the children between 6:30 and 7 p.m. on Friday and must have the children available for pick-up by Ms. Turley at 4 p.m. on Sunday.
On March 6, 1997, Ms. Turley filed a motion to modify Mr. Turley's visitation rights. Ms. Turley requested that the court limit Mr. Turley's visitation with the children to one weekend per month and that each visit be limited to Jefferson City. Ms. Turley also sought to reduce Mr. Turley's summer visitation with the children. To support her argument that Mr. Turley's visitation should be reduced and restricted to Jefferson City, Ms. Turley argued that the children's activities were hampered by being out of town every other weekend and that driving after dark in the winter months put the children at risk. At the hearing on the motion to modify, Ms. Turley testified that because of the "constant transport down to the farm" the children were "not able to participate in anything on the weekends" and, thus, the children's week was exhausting. However, Ms. Turley admitted that Mr. Turley accommodated their son's involvement in basketball by allowing him to play on Saturdays that Mr. Turley had custody of the children. There was no evidence of specific activities in which the children were not allowed to participate.
Ms. Turley also testified that when she picked up the children in Fremont, Missouri, at 4 p.m. on Sundays of the weekends that Mr. Turley had custody of the children, she would not arrive home in Jefferson City until approximately 7:30 p.m. She further testified that on a few occasions during the summer Mr. Turley was late making the children available for pick-up. Ms. Turley asserted that during the winter months Mr. Turley would refuse to make the children available for pick-up earlier than 4 p.m. despite inclement weather, thus endangering the children. However, Ms. Turley also admitted that she did not make arrangements for Mr. Turley to pick up the children at an earlier time on Friday evenings during inclement weather. Ms. Turley also made several accusations of poor care and neglect by Mr. Turley that Mr. Turley refuted.
Mr. Turley testified that if he were compelled to visit the children in Jefferson City, he would have to stay in a motel or with friends. Mr. Turley also testified that he has accommodated every request for weekend activities, including sleepovers and a birthday party. Mr. Turley could only recall one occasion where the children were being transported when the roads were unsafe.
After the hearing, the circuit court entered its judgment in which it made a specific finding that "there has been a change in the circumstances of the parties so substantial and continuing as to make the terms of the original Judgment and Decree of Dissolution of Marriage with respect to the terms of visitation of the minor children unreasonable." The court then found that "[d]uring the months of December, January and February, given the activities the children may participate in, both in school and extracurricular, and the shorter lengths of daylight hours, [Mr. Turley] shall conduct his visitation with the minor children in Jefferson City." The court left the original decree unchanged in all other respects. Mr. Turley filed his notice of appeal of that judgment. Ms. Turley then moved for her attorney's fees and costs on appeal. The court granted her motion and ordered Mr. Turley to pay fifteen hundred dollars in costs and attorney's fees. Mr. Turley appeals both the modification of his visitation rights and the award of attorney's fees.
The judgment modifying the visitation rights of Mr. Turley will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence or it erroneously applies the law. Murphy v. Carron, 536 S.W. 2d 30, 32 (Mo. banc 1976). Section 452.400.2, RSMo 1994,1 establishes the criterion for modifying visitation rights:
The court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child, but the court shall not restrict a parent's visitation rights unless it finds that the visitation would endanger the child's physical health or impair his emotional development.Mr. Turley argues that the trial court erred in modifying his visitation rights because there was insufficient evidence to show any change in circumstances from the time of the original decree. Mr. Turley relies on an appellate court case from the western district that imported the requirements from sec. 452.410.1 into sec. 452.400.2. See Pulliam v. Sutton, 728 S.W. 2d 252, 253 (Mo. App. 1987). However, sec. 452.400.2 plainly states that a court may modify visitation rights "whenever modification would serve the best interests of the child." The more rigorous standard in sec. 452.410.1 applies when a court is asked to modify the custody of a child. For example, in the present case, Mr. Turley and Ms. Turley have joint legal custody and Ms. Turley has primary physical custody. Neither party asked the court to modify that agreement; therefore, sec. 452.410.1 does not apply. The western district has itself pulled back from the analysis of Pulliam. In a more recent case, the western district acknowledged that a trial court is free to modify visitation rights after considering only the best interests of the child and "the trial court need not find a 'substantial change of circumstances.'" Warren v. Warren, ...
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