James v. James

853 S.W.2d 425, 1993 Mo. App. LEXIS 745, 1993 WL 166323
CourtMissouri Court of Appeals
DecidedMay 17, 1993
DocketNo. 18304
StatusPublished
Cited by12 cases

This text of 853 S.W.2d 425 (James v. James) 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
James v. James, 853 S.W.2d 425, 1993 Mo. App. LEXIS 745, 1993 WL 166323 (Mo. Ct. App. 1993).

Opinion

PARRISH, Chief Judge.

Larry James appeals from an order that modified a decree of dissolution of marriage with respect to child visitation rights. This court affirms.

The marriage of Larry James and Sandra James (now Sandra McFarland) was dissolved by a decree of dissolution of marriage entered by the Circuit Court of Dallas County, Missouri, on January 10, 1991. The parties had three children. They were awarded joint legal custody of the children. See § 452.374.1.1 Larry was awarded physical custody. Sandra was allowed “liberal visitation” with the children “consistent with at least the visitation set forth in the Decree.”2 The “liberal visitation” rights apparently were intended to be the reasonable visitation to which Sandra was entitled, as a noncustodial parent, by reason of § 452.400.1.

Sandra resided in California prior to the dissolution of her marriage to Larry. She had intended to move back to Missouri after the dissolution. She was unemployed. She explained what happened regarding her plans.

At the time I came to court I was unemployed, and I had agreed to move back to the State of Missouri.
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I obtained a job [in California] in March because my child support started in March; and I was not financially able to move from the State of California to Missouri.

Sandra did not see her children from January 1991, when the marriage was dissolved, until June 1992, when she was present for the court hearing on her motion to modify the dissolution decree. She had attempted to reach an agreement with Larry in the summer of 1991 which would have permitted her “to have [her] weeks during the summer consecutively” so she could have taken them to California “for one period of time.” Although Larry was willing for her to have the children for two weeks, no agreement was reached.

Sandra testified that she had remarried. She described the facilities available for the children at her home in California and her employment there. The trial court modified the visitation schedule. It granted Sandra visitation “from one (1) week after school dismisses for summer vacation until one (1) week before classes resume and during Christmas break from school on odd [427]*427numbered years.”3 Larry appeals from that order. Other procedural facts will be set forth in later parts of this opinion.

Larry’s first point on appeal contends that the trial court erred in changing the visitation rights that were granted by the original decree because Sandra “presented no evidence by which the court could find, upon the basis of facts that had arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change had occurred in the circumstances of the children or their custodian ... and that the modification was necessary to serve the best interests of the children.”

In asserting that there was no showing of a significant change of circumstances with respect to the children and him, as their custodian, Larry relies on § 452.410, RSMo Supp.1991, and on Burden v. Burden, 811 S.W.2d 818 (Mo.App.1991), and Pulliam v. Sutton, 728 S.W.2d 252 (Mo.App.1987). However, Larry, the appellant before this court,4 has not discussed § 452.-400.2,RSMo Supp.1991. It states, as is pertinent here:

The court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child,....

This court is mindful of the direction given by § 1.090, RSMo 1986, that “[w]ords and phrases shall be taken in their plain or ordinary and usual sense.” Section 452.-400.2,RSMo Supp.1991, the provision that relates to visitation rights by noncustodial parents, requires modification based upon “the best interests of the child.” There is no reference to changed circumstances of the child or custodial parent in the language of that statute as there is in the language of the statutes that relate to modification of custody, § 452.410, RSMo Supp.1991, or to modification of maintenance or support, § 452.370.1, RSMo Supp. 1991.

Likewise, Burden v. Burden, supra, the first case upon which Larry relies with respect to Point I, was a modification of custody case, not a modification of visitation case. 811 S.W.2d at 820. The applicable statute in Burden was § 452.410, not § 452.400, the applicable statute here.

The second case upon which Larry relies, Pulliam v. Sutton, supra, is a case in which modification of visitation rights was sought. 728 S.W.2d at 253. It was decided by the western district of this court. In Pulliam the court acknowledged that “[t]he authority of the court to modify visitation rights is limited to circumstances in which the modification would serve the best interests of the children. Section 452.-400.2,RSMo 1986.” Id. It also stated the requirements for modifying a custody decree, saying:

In order to modify a custody decree, the court must find that: (1) facts arising since the prior decree have given rise to change in circumstances of the child or his custodian, and (2) modification is necessary to serve the best interests of the child.

Id. The court, in Pulliam, reversed the trial court’s order modifying visitation rights. It stated, as its reason for reversing the trial court, “There was no evidence that any circumstances of the children or of appellant had changed since the date of the decree or that the limitations on respondent’s visitation had operated to the disadvantage of the children.” Id. at 254. “On Motion for Rehearing,” the court, in a per curiam opinion, addressed a challenge to its holding “that a change in the visitation rights of a non-custodial parent must, in like manner to a change in custody, be supported by evidence of a change in circumstances of the child or his custodian.” Id. It concluded, “If there be ... a divergence in views among the districts, which is not at all certain, this court adheres to [428]*428the view expressed in the principal opinion....” Id.

This court respectfully declines to follow Pulliam. This court finds the assessments that follow persuasive with respect to what is required in order to modify or define reasonable visitation rights granted to a noncustodial parent.

In Gayman v. Gayman, 559 S.W.2d 617 (Mo.App.1977), the western district, prior to its opinion in Pulliam, quoted from § 452.-400.2, RSMo Supp.1973, an earlier revision of RSMo Supp.1991, as follows:

The court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child, but the court shall not restrict a parent’s visitation rights unless it finds that the visitation would endanger the child’s physical health or impair his emotional development.

559 S.W.2d at 618. The quoted language from the 1973 Supplement is identical to the language in the first sentence of the statute applicable here, § 452.400.2, RSMo Supp.1991.

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Bluebook (online)
853 S.W.2d 425, 1993 Mo. App. LEXIS 745, 1993 WL 166323, Counsel Stack Legal Research, https://law.counselstack.com/opinion/james-v-james-moctapp-1993.