Williams v. Cole, 61442

Decision Date06 December 1979
Docket NumberNo. 61442,61442
Citation590 S.W.2d 908
PartiesGloria WILLIAMS, Appellant, v. Donald COLE, Respondent.
CourtMissouri Supreme Court

Donald V. Fraser, Jr., St. Louis, for appellant.

Edward P. Burke, Clayton, for respondent.

BARDGETT, Chief Justice.

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:

"(Discussion off the record at the Bench.)

"(The following was at the Bench, out of the hearing of the parties:)

"MR. BURKE (father's attorney): I would object to the children testifying, personally, due to their age, and also due to the emotional effect on the children in forcing them to come here and testify in open court and their emotional involvement in this thing, which is quite upsetting to them. I have no objection to the Judge interviewing the children in Chambers.

"MR. FRASER (mother's attorney): If the lawyers were present in the Chambers. I would like to be present, and I would like the Court to interview them. I think it has a very deciding piece of evidence that both children would be able to talk to this Court.

"(Discussion off the record.)"

Section 452.385, RSMo Supp.1975, provides:

"The court may interview the child in chambers to ascertain the child's wishes as to his custodian and relevant matters within his knowledge. The court shall permit counsel to be present at the interview and to participate therein. The court shall cause a record of the interview to be made and to be made part of the record in the case."

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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31 cases
  • Ynclan v. The Honorable Paul K. Woodward
    • United States
    • Oklahoma Supreme Court
    • 25 Marzo 2010
    ...335 (N.D.1983); Jenkins v. Jenkins, see note 8, supra; Abbott v. Virusso, 68 Mass.App.Ct. 326, 862 N.E.2d 52, 61 (2007); Williams v. Cole, 590 S.W.2d 908, 911 (Mo.1979); Cox v. Cox, 133 N.C.App. 221, 515 S.E.2d 61, 66 (N.C.App.1999); Brown v. Burch, 30 Va.App. 670, 519 S.E.2d 403, 408 (1999......
  • Sch. Dist. of Kan. City v. Miss. Bd. of Fund Comm'rs
    • United States
    • Missouri Court of Appeals
    • 18 Diciembre 2012
    ...Jenks, 385 S.W.2d at 377. Efforts to contract as to child custody, support, or visitation are not binding on a trial court. Williams v. Cole, 590 S.W.2d 908, 911 (Mo. banc 1979). This is primarily a function of the trial court's obligation to “protect the best interests” of the non-party ch......
  • People v. H.K.W.
    • United States
    • Colorado Court of Appeals
    • 18 Mayo 2017
    ...1119, 1124-26 (Miss. 2003)(documentation of in camera interview with children must be made and be part of the record); Williams v. Cole , 590 S.W.2d 908, 911 (Mo. 1979) (error is presumed if a trial court interviews the children in chambers without making a record); Donovan v. Donovan , 110......
  • McCreary v. McCreary
    • United States
    • Missouri Court of Appeals
    • 19 Agosto 1997
    ...separation agreements, the trial court is not bound by the parties' agreements as to child custody, support, or visitation. Williams v. Cole, 590 S.W.2d 908, 911 (Mo. banc 1979); In re Marriage of Glueck, 913 S.W.2d 951, 955 (Mo.App.1996); Hembree-Shanaberger v. Shanaberger, 903 S.W.2d 202,......
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2 books & journal articles
  • Section 26.27 Preference of Child
    • United States
    • The Missouri Bar Family Law (2014 Supp) Chapter 26 Modification of Decrees
    • Invalid date
    ...Busken, 878 S.W.2d 78 (Mo. App. E.D. 1994). Counsel should note that a record must be made of the in camera proceeding. Williams v. Cole, 590 S.W.2d 908 (Mo. banc 1979); see also Rolf v. Dennis, 615 S.W.2d 668 (Mo. App. E.D. 1981). But a guardian ad litem is not required to make a record of......
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    • United States
    • The Missouri Bar Settling Cases Deskbook Chapter 10 Settlement on Appeal
    • Invalid date
    ...in a dissolution case involving a minor’s rights. See Vollet v. Vollet, 202 S.W.3d 72, 75 (Mo. App. W.D. 2006) (citing Williams v. Cole, 590 S.W.2d 908, 911 (Mo. banc 1979)). Likewise, if the claim is one for wrongful death and two or more persons are entitled to recover statutory damages, ......

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