Williams v. Cole, 61442
Decision Date | 06 December 1979 |
Docket Number | No. 61442,61442 |
Citation | 590 S.W.2d 908 |
Parties | Gloria WILLIAMS, Appellant, v. Donald COLE, Respondent. |
Court | Missouri Supreme Court |
Donald V. Fraser, Jr., St. Louis, for appellant.
Edward P. Burke, Clayton, for respondent.
On application of Gloria Williams, hereinafter "mother", after opinion by the Court of Appeals, Eastern District, this Court transferred the appeal to examine the question of whether the failure of the trial court to make a record of the in camera interview with minor children in this child custody proceeding, as required by § 452.385, RSMo Supp.1975, was prejudicial error requiring the trial court's judgment, which denied the mother's motion to modify, be reversed and remanded for new trial. A division of the court of appeals affirmed the trial court, Judge Gunn dissenting.
This Court has concluded that the requirement of § 452.385 that a record be made of in camera interviews of minor children in child custody proceedings is mandatory, and the failure to make such a record in the instant case requires that the trial court's judgment be reversed and the cause remanded for a new trial. Portions of the court of appeals opinion and dissent will be utilized without the use of quotation marks.
The parties were divorced in 1971 with the mother being awarded custody of the two minor children, R____, born April 19, 1966, and A____, born September 15, 1969. Donald Cole, hereinafter "father", was awarded temporary custody rights for weekends and one and one-half months during the summer. About three years later the mother filed a motion to modify the custody arrangements and the father filed cross motions and also requested that the mother be held in contempt for failure to allow the father his temporary custody rights on certain occasions. While these motions were pending the mother moved to California with the children and without notifying the trial court or her lawyer. Both parties subsequently remarried. The trial court reinstated a contempt order previously issued against the mother and sustained the father's motion for modification with respect to the custody of the children, awarding primary custody of the two children to the father. However, the unknown whereabouts of the mother and the children thwarted the father's efforts to exercise his custodial rights. Thereafter the mother filed another motion to modify seeking to regain the primary custody of the children. Evidentiary hearings were held on this latter motion on April 29 and 30, 1976, and January 31, 1977. On November 2, 1977, the court entered a judgment on the motion in favor of respondent Donald Cole, leaving the primary custody of the children with the father.
As noted, the decisive point on this appeal concerns the trial court's in camera interview during the evidentiary hearing of the two children who were then 10 and 7 years old. There was no record made of this interview, although it was attended by attorneys for both parties. With respect to the interview, the record contains the following:
Section 452.385, RSMo Supp.1975, provides:
The mother's attorney admitted that he knew that a record was not being made but did not object. Subsequently, he filed an affidavit showing that the interview was of a general nature and that the court did not ask the children their preference of either parent as custodian. The trial court is vested with the discretion pursuant to § 452.385 to interview the child or children in chambers with counsel present and participating. R.S.M. v. J.D.M., 542 S.W.2d 361, 362 (Mo.App.1976). But if the court exercises its discretion and interviews the children in chambers without causing a record to be made, error is presumed. See Duncan v. Duncan, 528 S.W.2d 806 (Mo.App.1975). Accord In Interest of T. L. C., 553 S.W.2d 556 (Mo.App.1977).
The rationale underlying the rule is twofold. First, any consideration given by the trial court to the child's unrecorded testimony would be improper as not...
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