In Re Marriage of Powell

948 S.W.2d 153, 1997 Mo. App. LEXIS 1258, 1997 WL 253823
CourtMissouri Court of Appeals
DecidedJune 10, 1997
Docket20544
StatusPublished
Cited by8 cases

This text of 948 S.W.2d 153 (In Re Marriage of Powell) 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
In Re Marriage of Powell, 948 S.W.2d 153, 1997 Mo. App. LEXIS 1258, 1997 WL 253823 (Mo. Ct. App. 1997).

Opinion

948 S.W.2d 153 (1997)

In re the MARRIAGE OF Robin Lynn POWELL and Arnold Dean Powell.
Robin Lynn Powell HONEA, Petitioner-Respondent.
v.
Arnold Dean POWELL, Respondent-Appellant,
v.
Herman HAM and Betty Ham, Intervenors-Respondents.

No. 20544.

Missouri Court of Appeals, Southern District, Division One.

May 16, 1997.
Rehearing Denied June 10, 1997.
On Amended Motion for Rehearing June 10, 1997.

*154 Donald Rhodes, Bloomfield, for respondent-appellant.

James E. Spain, Poplar Bluff, Veryl L. Riddle, Dan M. Lesicko, St. Louis, for petitioner-respondent.

Before BARNEY P.J., and PREWITT and GARRISON, JJ.

PER CURIAM.

Arnold Powell (Father) appeals from a judgment awarding custody of his two children to their maternal grandparents. That judgment followed an extensive history of disputes between Father and Robin Lynn Powell Honea (Mother) concerning the children, and presents yet another example of the difficulty encountered by courts in attempting to resolve custody issues while maintaining a focus on the best interests of the children.

A March 12, 1991 decree dissolved the marriage of Father and Mother and awarded primary custody of their two children (Dustin and Jacqueline) to Mother with specified visitation privileges to Father. In March, 1993, *155 Father filed a motion to modify the decree in which he sought custody of the children, alleging that Mother was denying him his visitation privileges. He also sought to have her held in contempt. Mother filed a counter-motion to modify seeking to terminate or further restrict Father's visitation privileges, and to increase child support. Both motions were denied on August 13, 1993, but the court admonished Mother that "any further restrictions on the [Father's] visitation privileges that [Mother] chooses to impose without Order of the Court will be dealt with accordingly."

On May 17, 1994, Father sought custody of the children in another motion to modify in which he alleged that Mother had prevented his visitation on May 13 and had been influencing the children against him. He also sought to hold her in contempt. Mother filed a counter-motion to modify, again seeking to terminate or limit Father's visitation and to increase child support. To the trial court's credit, it responded quickly by hearing evidence on the motions on July 15 and 18, 1994 and entering findings and orders on July 22, 1994.

In its findings, the court noted that Mother and Father had each remarried, and that Father's wife had two children who lived with them. It also found that Dustin had been injured by a power water sprayer in September, 1993, had been diagnosed as being hyper-active, had a possible learning deficit disorder, and was receiving counseling and medical treatment for his difficulties. The evidence presented to the trial court in connection with those motions is not in the record before us, but we gather from the court's findings that an issue existed as to whether Father was operating the power washer when Dustin was injured or whether he had turned it over to his step-son. Nevertheless, the trial court found that Father "placed his child in harm's way, and while the physical injury was apparently minor ... the emotional injury to Dustin, occasioned by [Father's] attempts to evade responsibility by blaming his step-son, was apparent." It also found, however, that Mother had used the incident to create in Dustin a fear of Father, to Dustin's emotional detriment.

The trial court also found, as substantial, evidence presented by a mental health therapist that Dustin's emotional and psychological health would be harmed by unrestricted and unsupervised visitation with Father. It directed the juvenile officer to make random visits to the homes of Mother and Father to determine the physical and emotional environment of the children, and to monitor compliance with the court's orders. It awarded Father specified visitation privileges, but said:

PROVIDED, that all such visitation shall be under the supervision of the Juvenile Officer ... until such time as the Juvenile Officer, after consulting with [Dustin's mental health therapist], determines that supervision is not necessary, and obtains an order of the court removing the requirement that such visitation be supervised. Such visitation shall also be conditioned on [Father] providing proof to the court, through the Juvenile Officer, that he has obtained, or is obtaining, counseling and/or treatment in aggression management, anger abatement, reality awareness, personal responsibility and other parenting skills as are deemed necessary by the Juvenile Officer.

Mother was also found to be in contempt, and the court set sentencing for October 4, 1994.

After learning of the court's findings and orders of July 22, Mother, along with her husband and the children, were driven to Little Rock by Mother's father where they caught a plane for Utah. Because the purpose of the trip was to prevent Father from exercising his visitation privileges with the children, he was not told they were going, and did not know for several months where they were. Mother also failed to appear on October 4, as ordered by the court. At one point in October, she hired an attorney in Utah, with the financial assistance of her parents, and filed an action in that state seeking custody of the children. Father hired an attorney in Utah to defend that action and also expended funds on a private investigator in an attempt to locate his children. Mother's Utah attorney eventually *156 convinced her to return to Missouri, which she did in December, 1994.

On December 1, 1994, Father filed his third motion to modify in which he sought custody of the children and termination of his child support obligation. He later amended his motion to also seek reimbursement of his expense in locating the children in Utah, in defending the suit brought in that state by Mother, and for his attorneys' fees incurred in connection with the amended motion to modify. Mother's parents, Herman and Betty Ham (Intervenors), filed a motion to intervene which was sustained on December 29, 1994 when Mother appeared for the purpose of being punished for the July 22 order holding her in contempt.[1] Following that court appearance, Mother and her husband returned to Utah, leaving the children with Intervenors, who filed their motion seeking custody of the children.

Intervenors permitted Father to exercise his visitation rights with the children until April 6, 1995, when they notified him that those rights were being terminated until he complied with the conditions imposed by the court's order of July 22, and obtained approval by the court. Accordingly, Father was not permitted to see his children from then until the court heard the pending motions on July 7, 1995 (the trial).

Following the presentation of evidence, the trial court entered its judgment, from which Father appeals, denying his amended motion in its entirety, and awarding primary custody of the children to Intervenors. In that judgment, Father and Mother were each awarded specific visitation privileges. On this appeal, Father contends that the trial court erred in awarding custody to Intervenors because it was against the weight of the evidence, was an abuse of discretion, and because there was no substantial evidence to rebut the presumption that a natural parent should be awarded custody instead of a third party.

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Bluebook (online)
948 S.W.2d 153, 1997 Mo. App. LEXIS 1258, 1997 WL 253823, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-powell-moctapp-1997.