H.S.H. R.A.H. v. C.M.M.

60 S.W.3d 656, 2001 Mo. App. LEXIS 1591
CourtMissouri Court of Appeals
DecidedSeptember 18, 2001
DocketNos. ED 78341, ED 78342
StatusPublished
Cited by5 cases

This text of 60 S.W.3d 656 (H.S.H. R.A.H. v. C.M.M.) 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
H.S.H. R.A.H. v. C.M.M., 60 S.W.3d 656, 2001 Mo. App. LEXIS 1591 (Mo. Ct. App. 2001).

Opinion

CRANE, Judge.

Father and grandmother appeal from the trial court’s judgment in a lawsuit that father filed to determine paternity, support and custody of his biological daughter. Father claims the trial court erred in restricting his temporary custody and visitation by prohibiting him from allowing his daughter to be in her grandmother’s presence while in father’s custody and in granting sole legal custody to mother. Grandmother, who intervened in the case to obtain grandparent visitation rights and whose petition was dismissed, argues the trial court erred in ordering her to pay a portion of mother’s attorney’s fees. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

C.M.M. (mother) and R.A.H. (father) are the biological parents of H.S.H. (child), born on September 28, 1994. Mother and father are not married. P.H. (grandmother) is the child’s paternal grandmother.

In August 1998, mother and father separated and mother began living with a boyfriend. Grandmother made a call to Elizabeth Stoodley, the executive director of a domestic violence agency, reporting that child had indicated that she had been sexually abused by mother’s boyfriend. Ms. Stoodley suggested that she take the child to a hospital and made a hotline call to Division of Family Services (DFS). On August 21, 1998 father and grandmother took child to Christian Hospital for an examination. Dr. Lee Meyers examined child, but the results of his examination were inconclusive.

Father did not tell mother about his suspicions or about the examination. After this examination, father sought an ex parte order of protection. Mother was first informed about the sexual abuse allegation and examination when she was served with the ex parte order. At the ex parte hearing, father requested that mother have no visitation rights with child. However, child was returned to mother on a condition that the boyfriend not be in the house until the DFS conducted a full investigation.

On September 10, 1998 a second evaluation of child was made at grandmother’s request by Nancy Duncan, R.N., Pediatric Nurse Practitioner for the Child Protection Team at St. Louis Children’s Hospital. Father informed mother of the examination before child was taken to the hospital; mother told him that the GAL and DFS did not want another examination of the child and she begged him not to do it. Father knew that a DFS worker recommended that child not be subjected to another physical examination. Father and grandmother took child to Children’s Hospital. Ms. Duncan performed a full and detailed examination and found no physical evidence of any abuse.

During the DFS investigation, grandmother also accused her own boyfriend and mother’s ten-year-old brother of abusing child. The DFS investigation resulted in a report of unsubstantiated sexual abuse.

Pursuant to court order father obtained slides of child made when she was examined at Children’s Hospital. He gave them to grandmother, who had copies made, and sent them to the University of Missouri for inspection by Dr. Laurie [659]*659Frazer. He testified that Dr. Frazer did not find physical evidence of sexual abuse. He also sent the slides to his aunt, who is a nurse, for inspection.

Grandmother was dissatisfied with the findings of no sexual abuse. Grandmother telephoned Ms. Stoodley, called her a liar, claimed Ms. Stoodley knew that grandmother’s boyfriend had abused child, and threatened to shoot her. Grandmother made multiple threatening calls and then breached security at the domestic violence agency office and yelled and flung papers until she was escorted out of the office by the police. Grandmother also telephoned Ms. Duncan three times and left voice mail messages accusing her of covering up child’s abuse. Grandmother told mother she believed the FBI, CIA and ATF were involved in covering up child’s abuse.

In January, 1999 Ms. Duncan telephoned mother and told her that grandmother was trying to seek a third examination of child, which would involve child being sedated. Grandmother testified that the third evaluation was urged by an advocacy group to whom grandmother had sent a file of the DFS records and medical examinations and asked for help. Grandmother corresponded with the advocacy group under an e-mail address, “Justice for [Child].”

On February 1, 1999 child and father filed a petition for Declaration of Paternity, Child Custody, Temporary Custody and Visitation Rights and Child Support. In Count I father sought a determination that father was child’s biological father. In Count II father sought an order awarding mother custody and father reasonable rights to temporary custody and visitation, and requiring father to pay reasonable child support. Mother filed an answer admitting that father was child’s biological father and filed a petition seeking an order restricting father’s rights to temporary custody and visitation. The trial court entered a temporary order allowing father visitation, but prohibited father from allowing grandmother to have any contact with child. Grandmother intervened and filed a petition for grandparent visitation rights. After a bench trial, the court entered its findings, conclusions and judgment of paternity, support and custody. The court awarded legal custody and primary physical custody to mother, with rights of temporary custody and visitation to father. However, the court ordered that father not permit grandmother to be in child’s presence during father’s custody of child. The court dismissed grandmother’s petition because the statutory prerequisites had not been established.

The court found that mother’s attorney charged a reasonable fee of $150.00 per hour. Her attorney worked a total of 28.42 hours for a total bill of $4,263.00. The court ordered grandmother to pay $2,200.00 of mother’s attorney’s fees.

FATHER’S APPEAL

Both of father’s points claim trial court error in its custody determinations. As in all court-tried cases, we will sustain the trial court’s decree unless it is not supported by substantial evidence, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Rios v. Rios, 935 S.W.2d 49, 51 (Mo.App.1996). In child custody matters we give the trial court’s decision greater deference than in other cases. Id. We will reverse the trial court’s custody determination only if the welfare of the child requires a different disposition. Franke v. Franke, 913 S.W.2d 846, 849 (Mo.App.1995).

In his first point father contends that the trial judge erred in restricting father’s temporary physical custody and visitation by placing the following restriction on fa[660]*660ther’s visitation: “Father shall not expose the minor child to [Grandmother], and therefore, during Father’s periods of temporary physical custody, [Grandmother] shall not be permitted by Father to be in the presence of the minor child.” He argues that there was no evidence that the child’s physical health or emotional development would be endangered by contact with grandmother while in father’s custody.

A parent who is not granted custody of a child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger the child’s physical health or impair his emotional development. 452.400.1 RSMo (2000).

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Bluebook (online)
60 S.W.3d 656, 2001 Mo. App. LEXIS 1591, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hsh-rah-v-cmm-moctapp-2001.