Wallace v. Chapman

• Decision Date: 15 January 2002
• Docket Number: No. WD 59023.,WD 59023.
• Parties: Stephanie C. (Manns) WALLACE, Appellant, v. Michael Scott CHAPMAN, Respondent.
• Court: Missouri Court of Appeals

64 S.W.3d 853

Stephanie C. (Manns) WALLACE, Appellant, v. Michael Scott CHAPMAN, Respondent.

No. WD 59023.

Missouri Court of Appeals, Western District.

January 15, 2002.

Anita I. Rodarte, Kansas City, for appellant.

Steve D. Burmeister, Independence, for respondents.

Before PATRICIA BRECKENRIDGE, Presiding Judge, JOSEPH M. ELLIS, Judge and GENE R. MARTIN, Senior Judge.

JOSEPH M. ELLIS, Judge.

Appellant Stephanie Wallace ("Mother")¹ appeals from a judgment entered in the Circuit Court of Jackson County modifying its prior decree of dissolution of marriage to give physical custody of her son Seth Wallace-Chapman to his father, Respondent Michael Chapman ("Father").

Father and Mother were married on December 14, 1991. The couple separated on March 7, 1992. On June 20, 1992, Seth Wallace-Chapman was born of the marriage.

On August 13, 1992, the Circuit Court of Jackson County entered its judgment dissolving the marriage between Father and Mother. The judgment awarded Mother custody of Seth and provided for visitation for Father. Father was ordered to pay $150 per month in child support.

In January 1993, Mother moved with Seth to Texas without the permission of the court or notice to Father and refused to disclose their whereabouts to Father. While in Texas, Mother used a false address on her checks and on her IRS filings and had her mail sent to an address other than her residence. She had child support payments for Seth sent to an address in Independence, Missouri.

In January 1996, Father learned that Seth was temporarily staying with his maternal great-grandmother in Independence, Missouri. Acting on that information, Father filed a motion to modify physical custody. Mother subsequently filed her answer to Father's motion to modify and a counter-motion for increased child support and for contempt for failure to pay child support. After Mother filed her pleadings, Father filed a motion for contempt against Mother for moving to Texas without the court's order or his permission.

The various motions were heard by a family court commissioner on March 28 and 29, 1996. On April 3, 1996, the Commissioner entered her judgment. The commissioner found that Mother had violated § 452.377 by intentionally removing Seth from the court's jurisdiction in January 1993 for the purpose of interfering with Father's visitation and relationship with Seth. The commissioner held that this constituted a substantial change in circumstances, but she found that it was not in Seth's best interests to change custody. The commissioner denied Mother's oral motion that she be allowed to remain in Texas and ordered her to return with Seth to Missouri. The commissioner found Mother in contempt and provided her with an opportunity to purge that contempt by providing Father with a period of compensatory visitation in August 1996. The commissioner also increased Father's child support amount to $311 per month and set forth a new visitation schedule. The commissioner found that Father was current on his child support payments through February 1996. While the parties were informed that they could file a motion for rehearing by a judge of the circuit court, neither parent sought rehearing, and the judgment became final.

While the motions were pending before the commissioner, Mother filed two allegations of abuse against Father with the Division of Family Services ("DFS"). The first allegation was filed on March 27, 1996, the day before trial, and alleged inadequate supervision. The second allegation was made on March 29, 1996, the final day of trial, and claimed that Father had bruised Seth's hips spanking him. Mother did not inform the commissioner of either of these complaints. Both allegations were later found to be unsubstantiated by DFS.

On May 31, 1996, Mother filed allegation of abuse against Father's fiancé, Lucy Wallace. That allegation was later found unsubstantiated.

In July 1996, Mother asked Father if she could take Seth to her sister's wedding during the period of compensatory visitation that Father was supposed to have in August 1996. Father denied that request.

Subsequently, on July 23, 1996, after Seth returned from his visitation with Father, Mother took Seth to the Buckner Police Department and claimed that Father had caused a bruise on Seth's arm during visitation. That visit to the police department resulted in a hotline call to DFS, following which DFS opened an investigation into potential abuse by Father. On August 1, 1996, after Seth returned from visitation with Father, Mother again took him to the Buckner Police Department and claimed that Father had caused further bruising on Seth's leg. That visit resulted in another hotline call to DFS.

After this second report, the DFS investigator, Terri Reynolds, told Mother and Father that DFS wanted Father's visitation restricted to supervised visitation until the investigation was completed. Ms. Reynolds told Mother that Father's unrestricted visitation should resume after they received the DFS determination in the mail. Ms. Reynolds completed her investigation in August 1996, and her report was mailed to the parties on September 4, 1996.² However, despite having received the DFS report, Mother continued to allow only supervised visitation between Father and Seth.

On October 4, 1996, as a result of being denied unsupervised visitation with Seth and not receiving the compensatory visitation prescribed by the court to purge Mother's contempt, Father filed an Application for Contempt and Show Cause and a Motion for Modification of Custody, Child Support, Attorney's Fees and Costs. On October 7, 1996, the commissioner entered her Order to Show Cause, ordering Mother to appear on November 18, 1996, and show cause why she should not be held in contempt for failing to comply with the judgment of April 3, 1996. Mother was served with the order to show cause and Father's motion for modification of custody.

That same day, Mother met with the current DFS caseworker and devised a Family Treatment Plan in which it is noted that the "parents will voluntarily continue to cooperate with supervised visitation." Father was not invited to participate in that meeting and was not sent a copy of this document.

The commissioner heard Father's motions on November 18, 1996. On November 22, 1996, she entered her judgment granting Father's motion to modify, transferring physical custody of Seth to Father. The commissioner also found Mother in contempt and ordered her to pay Father an amount equivalent to the child support that Father had paid while being denied unsupervised visitation. Father assumed physical custody of Seth on that date.

On December 6, 1996, Mother filed a motion for rehearing before a circuit judge and a motion to set aside the commissioner's judgment. On January 3, 1997, the circuit court denied Mother's motion for rehearing. On January 6, 1997, the commissioner denied Mother's motion to set aside the judgment. Mother then filed an appeal to this Court which was denied for lack of jurisdiction because no final appealable judgment had been entered by the circuit court. Chapman v. Chapman, 967 S.W.2d 660, 661 (Mo.App. W.D.1998).

Thereafter, on April 7, 1998, the circuit court entered a judgment adopting the findings and recommendations of the commissioner as the final judgment of the circuit court. Mother appealed that judgment. On May 19, 1999, this Court reversed the circuit court's judgment based upon the fact that a guardian ad litem had not been appointed to represent Seth. Manns v. Chapman, 990 S.W.2d 102, 107 (Mo.App. W.D.1999). After this court's mandate was issued, Seth returned to Mother's custody.

On May 10, 1999, Father filed his First Amended Motion for Modification of Custody, Child Support, Visitation and Attorney's Fees. The commissioner appointed a guardian ad litem to represent Seth on May 21, 1999. On June 8, 1999, Mother filed a counter-motion for attorney's fees.

The commissioner conducted hearings on Father's motion on August 2, 3, and 4; September 1 and 10; and October 13, 1999. Nine months later, on July 17, 2000, the commissioner entered her judgment finding that there had been a significant and compelling change in the circumstances of Seth and his mother and that Seth's best interests dictated that custody of Seth be transferred to Father. The commissioner found that Mother had interfered with Father's parental and visitation rights and with the father/son relationship since the previous judgment of April 3, 1996. The commissioner noted that from August 1996 through the hearing in November 1996 Mother restricted Father's visitation without a court order, refused to allow Father telephone contact with Seth, and failed to provide the compensatory visitation previously ordered by the court. The commissioner further noted that Seth had spent a significant amount of time in Father's custody and that Mother had refused to sign a medical release for Father as ordered in the April judgment.

On August 10, 2000, the circuit court entered its judgment adopting the commissioner's findings and recommendations as the judgment of the court. Mother brings five points on appeal.

In reviewing a custody modification case, our review is governed by the standards of Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). In re McIntire, 33 S.W.3d 565, 568 (Mo.App. W.D.2000). "We will reverse the court's judgment only if there is no substantial evidence to support it, it is against the weight of the evidence, or if it erroneously declares or applies the law." Huffman v. Huffman, 11 S.W.3d 882, 885 (Mo.App. W.D.2000).

We give greater deference to the trial court's determination in child custody proceedings than in any other type of case. Brandow v. Brandow, 18 S.W.3d 584, 587 (Mo.App. W.D.2000). "A trial court is vested with considerable discretion in determining custody questions, and appellate courts should not overturn the trial court's findings unless they...