Cannon v. Cannon

280 S.W.3d 79, 2009 Mo. LEXIS 44, 2009 WL 995789
CourtSupreme Court of Missouri
DecidedApril 14, 2009
DocketNo. SC 89118
StatusPublished
Cited by12 cases

This text of 280 S.W.3d 79 (Cannon v. Cannon) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cannon v. Cannon, 280 S.W.3d 79, 2009 Mo. LEXIS 44, 2009 WL 995789 (Mo. 2009).

Opinion

LAURA DENYIR STITH, Chief Justice.

Susan Marie Randall appeals the trial court’s judgment holding section 452.375.3 unconstitutional as applied to James Randall Cannon and granting Mr. Cannon unsupervised visitation and joint legal and physical custody of the parties’ two natural children, M.C. and A.C. Mr. Cannon was convicted of first-degree statutory rape and first-degree statutory sodomy of his then 12-year-old stepdaughter. Section 452.375 RSMo Supp.2006, expressly prohibits a court from awarding unsupervised visitation or custody to a parent convicted of such sexual offenses against a child. The trial court held that this restriction on Mr. Cannon’s right to visitation and custody: (1) violates the prohibition in article I, section 13 of Missouri’s Constitution against laws that are retrospective in operation and (2) violates article I, section 10 of Missouri’s Constitution and the Fifth and Fourteenth Amendments to the United States Constitution because it interferes with Mr. Cannon’s fundamental right to associate and maintain a relationship with his children.

This Court reverses and remands. Section 452.375 is not retrospective in its operation merely because its prohibition on unsupervised visitation by child sex offenders was enacted after Mr. Cannon’s marriage first was dissolved. At the time of the dissolution, Mr. Cannon was awarded only supervised visitation. He had no right to assume that the visitation laws would remain the same between the time of the dissolution and the time he later sought unsupervised visitation following his release from prison.

Similarly, section 452.375 does not deprive Mr. Cannon of his fundamental right to associate with his children. He still is permitted to associate with them so long as his visits are supervised. In light of his felony conviction for statutory rape and sodomy of a child, the legislature’s restriction provides a reasonable balance between his right to associate with his children and the state’s parens patriae obligation to protect children and to act in their best interests. For these reasons, the trial court erred in holding section 452.375 unconstitutional as applied to Mr. Cannon.

I. FACTUAL AND PROCEDURAL BACKGROUND

In June 1995, James Cannon married Susan Randall. At the time of their marriage, Ms. Randall had a 10-year-old daughter, S.S., from a previous marriage. During the marriage, the couple had a daughter, M.C., and a son, A.C. Within a year of the marriage, the then 24-year-old Mr. Cannon allegedly began grooming then 11-year-old S.S. for sex. He began raping and sodomizing S.S. in November 1997, when she was 12, and continued to do so until he was arrested in July 1999.

Mr. Cannon initially denied his involvement and claimed that 11-year-old S.S. had made sexual advances towards him. He later admitted his crimes. In December 2000, but before Mr. Cannon pleaded guilty to his crimes, the parties dissolved their marriage. At the time of the dissolution, the law prohibited a person who had [82]*82pleaded guilty to such sexual crimes from being awarded custody of the child-victim:

The court shall not award custody of a child to a parent if such parent has been found guilty of, or pled guilty to, a felony violation of chapter 566, RSMo, when the child was the victim....

Sec. 452.375.3, RSMo 2000 (emphasis added). Because defendant’s victim, S.S., was not his child, this statute did not apply to Mr. Cannon. His rights to custody and visitation were instead determined under other Missouri statutes governing custody and visitation, including section 452.375.2, which provides, “The court shall determine custody in accordance with the best interests of the child.” Section 452.375 creates a preference for joint custody and for frequent, continuing and meaningful contact of both parents with their child, but also provides that a court may limit or restrict such contact where it finds that this is in the best interest of the child. Id. That is what occurred at the time of the dissolution in this case. The trial court’s December 2000 order determined that it was in the best interests of M.C. and A.C. that their mother, Ms. Randall, be awarded sole legal and physical custody of them and granted Mr. Cannon supervised visitation.

In January 2001, a month after the dissolution decree was entered, Mr. Cannon pled guilty to the felonies of first-degree statutory rape and first-degree statutory sodomy of his stepdaughter, S.S., in violation of section 566.032 and section 566.062, RSMo 1994, and was sentenced to seven years in prison. While in prison, Mr. Cannon completed the Missouri Sexual Offenders Treatment Program. Program directors recommended that, on his release, Mr. Cannon should be supervised when in the presence of underage females. Mr. Cannon was paroled in February 2004 and had supervised visitation with his children pursuant to the dissolution decree. In June 2005, the court modified the decree to allow a different person to supervise Mr. Cannon’s visits. The modified decree continued to give Ms. Randall sole legal and physical custody of M.C. and A.C.

On September 18, 2006, Mr. Cannon filed a motion to modify in which he requested that the decree be modified to allow him unsupervised visitation with M.C. and A.C. gradually. At trial, each party presented expert testimony regarding Mr. Cannon’s diagnosis of Axis I pedophilia made in late 1999 at the psychiatric ward at St. John’s Hospital after Mr. Cannon was caught and arrested.1 Dr. Bruce Harry, a forensic psychiatrist, testified for Ms. Randall and ultimately diagnosed Mr. Cannon as a pedophile.

In his diagnosis, Dr. Harry found that Mr. Cannon met the three identifiable diagnostic criteria for a pedophile. He said that the three criteria include: (1) that the person “must have over a period of at least six months, recurrent, intense, sexually-arousing fantasies, sexual urges or behaviors involving sexual activity with a prepubescent — or children generally age 13 years or younger; (2) that the person has acted on these urges or that the urges caused marked distress or interpersonal difficulty; and (3) that the person ... is at least 16 years of age, and at least five years older than the child or children in criterion A.,” but this criterion does not include “individuals in late adolescence who were involved in an ongoing sexual relationship with a 12 or 13-year-old.” In [83]*83Dr. Harry’s opinion, Mr. Cannon is an incurable pedophile.

Dr. David B. Clark, a forensic psychologist, testified for Mr. Cannon that although he still may be a child molester, Dr. Clark did not consider him a pedophile. Dr. Clark acknowledged the three diagnostic criteria for pedophilia, but found that Mr. Cannon did not meet the first criterion — that a child be pre-pubes-cent — because pedophilia is “sexual attraction to children that are not sexually developed,” and Mr. Cannon had reported to him that S.S. was “fully developed” during the period he raped and sodomized her, although she was younger than 13 years. There is no indication in the record that Dr. Clark attempted to verify this report.

Dr. Clark further testified that the distinction between “child molester” and “pedophile” is important, because “if you have somebody whose exclusive sexual attraction is to young children who are not sexually developed ... you’ve got big trouble.

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Bluebook (online)
280 S.W.3d 79, 2009 Mo. LEXIS 44, 2009 WL 995789, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cannon-v-cannon-mo-2009.