Van Pelt v. Van Pelt

• Decision Date: 28 January 1992
• Docket Number: No. WD,WD
• Citation: 824 S.W.2d 135
• Parties: Melvin VAN PELT, Petitioner-Respondent, v. Regina VAN PELT, Respondent-Appellant. 44653.
• Court: Missouri Court of Appeals

Page 135

824 S.W.2d 135

Melvin VAN PELT, Petitioner-Respondent, v. Regina VAN PELT, Respondent-Appellant.

No. WD 44653.

Missouri Court of Appeals,

Western District.

Jan. 28, 1992.

Janet Wake Larison, Grant City, for respondent-appellant.

Larry L. Zahnd, Maryville, for petitioner-respondent.

Before LOWENSTEIN, C.J., and FENNER and ULRICH, JJ.

LOWENSTEIN, Chief Judge.

Respondent Melvin Van Pelt filed a dissolution action in which his wife Regina Van Pelt was denied custody and visitation of the three minor children. Regina appeals, arguing that the trial court incorrectly denied her reasonable visitation rights, because such a ruling is against Missouri public policy, no finding of physical endangerment or impairment of emotional development was made under § 452.400.1, RSMo Cum.Supp.1990, ¹ there was no evidence of endangerment to the physical health or impairment of the emotional development of the children, and finally, because the court did not appoint a guardian ad litem under § 452.423.1.

The parties were married in 1975, and in May of 1987, Melvin left the marital home with the children, filed for divorce, and sought sole custody of the minor children. A month later, Melvin and the children returned to the marital home and the couple resumed their marital relationship until August of 1989, when Regina left the home without the children. The majority of the testimony at trial relates to outside observation of the children and their relationship with and treatment by their mother and father, from the early 1980's until trial. Although the standard of review is that of a court tried case under Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), and as such the ruling is upheld if there is sufficient evidence to support it, the facts important to the points will be discussed below in great detail, given Regina Van Pelt's important interest in seeing her children.

Denial of Visitation

Regina argues that the trial court's denial of visitation was an abuse of discretion in that the ruling is against the public policy of Missouri; that the court made no finding of endangerment of physical health or impairment of emotional development as required by 452.400.1 when denying visitation; and that there was no evidence to support such a finding.

It is the policy of the state that there be frequent and meaningful contact between parents and children following a dissolution:

... to assure children frequent and meaningful contact with both parents after the parents have separated or dissolved their marriage ... court shall determine the custody arrangement which will best assure ... such frequent and meaningful contact between the child and each parent, as is indicated in the best interests of the child under all relevant circumstances. § 452.375.3.

However, another provision sets forth an exception to that policy:

A parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger the child's physical health or impair his emotional development. § 452.400.1.

The present case deals with the statutory exception, which is an expression of the state's policy, and so Regina's point is denied.

Regina's second point is that the trial court made no "finding" as required by § 452.400.1. As quoted above, this section also requires a hearing, and it is uncontested that such a hearing, for the express purpose of determining custody and visitation, did take place in this case, and that a great deal of testimony came out as to the relationship between the children and Regina. As to "findings," the court in Fetters v. Highley, 714 S.W.2d 210, 211 (Mo.App.1986), reversed a trial court's denial of visitation, stating that no express finding under § 452.400.1 had been made, and that insufficient evidence of endangerment of physical health or impairment of emotional development existed in the record. On the other hand, the court in Flaton v. Flaton, 777 S.W.2d 948, 951 (Mo.App.1989), recognized that a finding of emotional impairment pursuant to § 452.400.2 was "implicit in the issuance of the order" reducing the father's visitation privileges. The Flaton court granted the mother permission to move out of the state with the children, and the evidence of emotional impairment was that the previous amount of visitation would unduly disrupt the children's normal living routine, id. The case of Jensen v. Borton, 734 S.W.2d 580, 584 (Mo.App.1987), also applies, in that when a trial court makes no findings of fact, this court must assume that all fact issues were found in accordance with the result.

In the case at bar, the trial court's order reads "[t]he court finds it is in the best interests of the minor children ... that [Regina] shall not have any visitation," and "[i]t is further ORDERED and DECREED that, for good cause shown ... [Regina] shall have no visitation with said minor children at this time." Under the evidence in the record, this court holds a finding of impairment of emotional development is implicit from the trial court's order denying visitation "in the best interests of the minor children" and for "good cause shown." At best, the dereliction of the trial court in not using the words "impair the emotional development" in its order would require sending this case back to the trial court to insert those words into the order. On review, an appellate court may render the judgment that should have been rendered by the trial court, Pemberton v. Pemberton, 779 S.W.2d 8 (Mo.App.1989), in order to dispense with the remand process. This power is particularly appropriate here, where the trial court made a correct ruling which lacked the formal statutory requirements, and a remand to re-write the order would be an empty act. The point on appeal is denied. This ruling should not be taken as a sign of overlooking a remand in future cases for noncompliance with the statute. Further, this ruling is explicitly based on Flaton, Jensen, and Pemberton, as well as on the overwhelming evidence of impairment of emotional development in the record.

As to Regina's final point concerning visitation, this court finds sufficient evidence under the standard of Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), for the trial court to deny visitation on the basis of impairment of emotional development, § 452.400.1. The entire record shows the relationship between the children and Regina as strained at best, and that her interest in visiting her children is outweighed by their interest in a normal, happy childhood. The evidence at trial is arranged below in two parts, that pertaining to the difference in the children's homelife since their mother, Regina, left, and that pertaining to the children's reactions to the scheduled visits that occurred before trial.

Current homelife. Jody Starr of the Division of Family Services ("DFS") testified that she had been approached by Melvin in June, 1990. The son, Jerry, had been exhibiting violent behavior in school and at home, and Melvin had felt the need of assistance in dealing effectively with Jerry and with the children's reactions to Regina's absence. Melvin had also felt some...