Keith v. Keith

708 S.W.2d 350, 1986 Mo. App. LEXIS 3946
CourtMissouri Court of Appeals
DecidedApril 7, 1986
DocketNo. 14155
StatusPublished
Cited by12 cases

This text of 708 S.W.2d 350 (Keith v. Keith) 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
Keith v. Keith, 708 S.W.2d 350, 1986 Mo. App. LEXIS 3946 (Mo. Ct. App. 1986).

Opinion

FLANIGAN, Judge.

Appellant Carolyne Keith appeals from an order of the trial court, entered January 18, 1985, denying her motion, filed June 8,1984, to modify the visitation provisions of an order entered January 13, 1984. The following events are significant:

November 14, 1980 — A decree was entered dissolving the marriage of Harvey Keith and Carolyne Keith and awarding to Harvey the custody of their four minor children, Lisa, Byron, Tanya and Michael. Carolyne was awarded “the right to reasonable visitation.”
Order of September 8, 1981 — “[Caro-lyne’s] right to reasonable visitation with Lisa, Byron and Tanya shall be exercised from 9:00 a.m. to 12:00 noon on the Saturdays [Carolyne] has custody of Michael.”
Order of May 18, 1982 — granted Harvey the “exclusive care, custody and control” of the four minor children “without any interference on the part of [Caro-lyne] and without any rights of visitation by [Carolyne].” This order contained a finding “that visitation with the children by [Carolyne] would impair their emotional development.”
Order of January 13, 1984 — affirmed the prior denial to Carolyne of all visitation rights with respect to Tanya (and the two older children) and permitted Carolyne to visit Michael on alternate weekends from 7:00 p.m. Friday to 6:00 p.m. Saturday and, during the summer, for 2½ hours each Wednesday evening. Carolyne was also given visitation rights with respect to Michael on four designated holidays.
June 8, 1984 — Carolyne filed a motion to modify the order of January 13, 1984. This motion requested an order “establishing visitation times with Tanya and Michael.” The motion also requested, with respect to Tanya, that the court “establish initial counseling sessions with a licensed clinical psychologist or a party with equivalent qualifications.”
The grounds set forth in the motion, allegedly constituting a change in conditions since the entry of order of January 13, 1984, included the following: Caro-lyne has visited Michael at specified limited times and the visits have benefited Michael’s development; Harvey has re[352]*352taliated against Michael through emotional tactics aimed at disrupting Caro-lyne’s visitation with Michael; Carolyne has altered her attitude toward “the children” since the hearing in which Caro-lyne’s visitation rights were terminated; increased visitation with Michael and Tanya “is now imperative for their proper development.”
On January 18, 1985, the trial court, after evidentiary hearing, denied Caro-lyne’s motion of June 8, 1984.

Carolyne is the only party to file a brief in this court. Carolyne’s first point is that the trial court erred in not granting her visitation rights with respect to Tanya (and in refusing to modify the order of January 13, 1984), for the reason that “a change of circumstances had occurred and modification would serve the best interest of Tanya.”

Section 452.4001 reads, in pertinent part:

“1. A parent not granted custody of the 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.
2. The court may modify an order granting or denying visitation rights whenever modification would serve the best interest 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.”

Appellate review of the order of January 18, 1985, is governed by the standards set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). See Blankenship v. Blankenship, 699 S.W.2d 44, 45[1] (Mo.App.1985). In matters pertaining to visitation rights, this court should accord due deference to the trial court’s assessment of what serves the best Interests of the child and the judgment should be affirmed unless it lacks substantial evidence to support it, or is against the weight of the evidence, or erroneously declares or applies the law. L.L.T. v. P.A.T., 585 S.W.2d 157, 160 (Mo.App.1979). A determination of visitation rights will not be overturned unless the appellant demonstrates that the order was not in the best interests of the child. L.L.T. v. P.A.T., supra, at 160. See also Langwell v. Langwell, 559 S.W.2d 65, 66[2] (Mo.App.1977); Roark v. Harvey, 544 S.W.2d 287, 292[5] (Mo.App.1976).

Courts should encourage the continued love, interest and affection of divorced parents for their children, and where both parties are proper parents, each has a right to reasonable access to the children. Geary v. Geary, 697 S.W.2d 318, 320[1] (Mo.App.1985). Visitation rights are not meted out with the purpose of rewarding one parent or punishing another parent. Alice v. Ronald, 683 S.W.2d 307, 310[7] (Mo.App.1984).

The factors enumerated in § 452.-375,2 although dealing with custody, are among the ones which the trial court may consider in determining whether there should be a change in visitation rights. Leimer v. Leimer, 670 S.W.2d 571, 573 (Mo.App.1984). Overnight visits may be a part of “reasonable visitation rights” within the meaning of § 452.400, Hamilton v. Hamilton, 622 S.W.2d 252 (Mo.App.1981); Barry v. Barrale, 598 S.W.2d 574 (Mo.App.1980), and thus not governed by the provisions of § 452.410 which require certain proof before “a prior custody decree” is [353]*353modified. Blankenship v. Blankenship, supra, at 45[1].

Evidence of a parent’s prior conduct may properly be considered, under § 452.-400, as bearing on the issues of the parent’s emotional stability and its possible effect upon the well-being of the child. L.L.T. v. P.A.T., supra, at 159[1]. The trial court may believe all, part or none of the testimony of a witness. Blankenship v. Blankenship, supra; Alice v. Ronald, supra, at 310[6].

In January 1985, when the instant motion was tried, Lisa was 19, Byron was 18, Tanya was 15 and Michael was 8. When the original decree was entered in 1980, Harvey was granted custody of all four children. Since that time Carolyne has filed four motions to modify. Harvey has filed one motion to modify and two cross-motions. Only the record of the most recent proceeding is before this court.

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Bluebook (online)
708 S.W.2d 350, 1986 Mo. App. LEXIS 3946, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keith-v-keith-moctapp-1986.