Bertz v. Bertz

856 S.W.2d 932, 1993 Mo. App. LEXIS 1048
CourtMissouri Court of Appeals
DecidedJuly 13, 1993
DocketNo. 18491
StatusPublished
Cited by8 cases

This text of 856 S.W.2d 932 (Bertz v. Bertz) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bertz v. Bertz, 856 S.W.2d 932, 1993 Mo. App. LEXIS 1048 (Mo. Ct. App. 1993).

Opinion

CROW, Presiding Judge.

Christina Sue Bertz .(“Mother”), ex-wife of Wayne Edward Bertz (“Father”), appeals from an order transferring primary physical custody of their two minor children from her to him. She presents two assignments of error. We address her second one first. It avers the trial court “failed to satisfy a jurisdictional requirement in that a guardian ad litem was not appointed for the minor children in this action even though there were allegations of abuse and/or neglect in the pleadings and evidence.”

[933]*933Section 452.423.11 reads:

In all proceedings for child custody or for dissolution of marriage or legal separation where custody, visitation, or support of a child is a contested issue, the court may appoint a guardian ad litem. The court shall appoint a guardian ad litem in any proceeding in which child abuse or neglect is alleged.

The parties’ marriage was dissolved by a decree entered September 3, 1986. The decree awarded the parties “joint custody” of their two children, Jonathan Wayne Bertz (born May 5, 1984), and Patricia Jenny Bertz (born April 5, 1985), with Mother to have “primary physical custody and control of said ... children.” The decree was subsequently modified by an order granting Mother permission to move the children from Dent County to St. Francois County.

On January 7, 1992, Father filed a motion seeking transfer of primary physical custody of the children from Mother to him. We find no allegation of child abuse or neglect in Father’s motion, and Mother does not identify any such averment.

On March 19, 1992, Mother filed a “cross-motion” to modify. It contained one allegation which, according to Mother, pled child abuse or neglect. The allegation is:

[Father] consumes excessive amounts of alcohol when caring for and in the presence of said minor children.

Nothing in the record indicates Mother ever suggested to the trial court that a guardian ad litem be appointed for the children.

The issues were tried August 13, 1992. Mother cites the following evidence which, according to her, demonstrates Father abused the children. The lone source of the evidence was Mother’s testimony.

She described an incident that occurred at Father’s home around March 1, 1992. As we understand the narrative, Mother had gone there the preceding day to visit the children and had stayed overnight. She testified:

It was a Sunday morning and nobody was really running late, kind of overslept; and me and Jenny didn’t hop out of bed when [Father] said, “Let’s go. Let’s get up. Let’s get ready.” And then went in the kitchen and just like rush, rush, rush. And I said something to him; and he just told me, “Get the hell out,” and if I didn’t shut up or whatever, that he’d call the police because I could be arrested because of that restraining order; and then he started to reach for the phone, like I told him to go to hell, I imagine. And he started to reach for the phone, and I reached up to push the receiver in, and he scratched — I still have the scar — in front of my children. And then he’d even push Jenny and pushed her by the neck down the hallway, and they were telling Daddy to leave Mommy alone.
Q. And which child said that?
A. Jonathan. They both did. Jenny was crying, and Jon had told Daddy to leave me alone, “Leave Mommy alone.” ... I even went to the doctor because he twisted my wrist. It was swollen and everything.

The other evidence which, according to Mother, shows Father abused the children was Mother’s testimony that Father drinks alcoholic beverages in the presence of the children and has driven a motor vehicle with the children as passengers after consuming alcohol.

Mother cites one case in support of her second point, McCormick v. McCormick, 807 S.W.2d 556 (Mo.App.S.D.1991). There, one parent’s pleading in a proceeding to modify a child custody order alleged the other parent failed to protect the parties’ daughter, resulting in sexual abuse and molestation of the child by the latter parent’s brother. Id. at 557. The record contained evidence the abuse occurred. Id. No guardian ad litem was appointed for the child. Applying the 1988 version of § 452.-423.1 (identical to the 1990 version applica[934]*934ble here), this Court held the failure to appoint a guardian ad litem was reversible error, even though neither party requested such appointment. 807 S.W.2d at 557. The requirement is mandatory where abuse is alleged, and the statute contains no exceptions. Id.

The subject was addressed again in Gilman v. Gilman, 851 S.W.2d 15 (Mo.App.W.D.1993). There, a dissolution decree awarded custody of the parties’ child to the husband. The wife appealed, assigning error in the trial court’s failure to appoint a guardian ad litem for the child. The Western District of this Court noted McCormick’s holding that § 452.423.1 requires appointment of a guardian ad litem if there is any allegation of abuse or neglect in a child custody proceeding. 851 S.W.2d at 17.

In Gilman, no allegation of abuse or neglect appeared in any pleading. Id. However, the wife maintained the record reflected “evidentiary allegations” by the husband that she abused and neglected the child. In fact, the husband’s evidence showed only that she was a poor housekeeper. The opinion noted the housekeeping evidence was not presented by the husband as evidence of child neglect, but only to show the wife was a bad housekeeper and the husband would be a better custodial parent. The Western District held such evidence did not constitute an allegation of neglect within the meaning of § 452.423.1. 851 S.W.2d at 17.

The wife in Gilman also argued the record contained allegations of child abuse by the husband stemming from his previous alcohol and drug usage. Id. The evidence showed the husband overcame his drug problem before the child was born. Id. at 18. The husband admitted he had an alcohol problem during the marriage, but presented evidence he had overcome it. Furthermore, the record contained no evidence the alcohol problem resulted in any abuse toward the child. Id. at 18[6].

Finally, the wife in Gilman recounted an incident in which the husband came home drunk and got into an altercation with her in the presence of their child and other children. According to the wife, the husband grabbed her by the throat, threw her against a trailer, and drew his arm back to hit her. Their child screamed, “My daddy hit my mom.” Id. at 18.

The Western District held the fracas was an item for consideration on the issue of the proper custodial parent, but did not constitute an allegation of abuse requiring appointment of a guardian ad litem. Id. at 18[7]. The opinion explained:

Throughout Wife’s testimony she describes incidents of fighting between the two parties. They are similar to this event in that Husband’s anger is directed at Wife and not [the child]. It is truly unfortunate for any child to witness parents battling with one another.

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Bluebook (online)
856 S.W.2d 932, 1993 Mo. App. LEXIS 1048, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bertz-v-bertz-moctapp-1993.