K.J.B. v. C.M.B.

779 S.W.2d 36, 1989 Mo. App. LEXIS 1539, 1989 WL 125664
CourtMissouri Court of Appeals
DecidedOctober 24, 1989
DocketNo. 55311
StatusPublished
Cited by6 cases

This text of 779 S.W.2d 36 (K.J.B. v. C.M.B.) 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
K.J.B. v. C.M.B., 779 S.W.2d 36, 1989 Mo. App. LEXIS 1539, 1989 WL 125664 (Mo. Ct. App. 1989).

Opinions

KAROHL, Judge.

Husband-father appeals from modification of divorce decree which terminated his rights of visitation and temporary custody with the parties’ two minor children. The parties were married in 1980. A dissolution was granted in June, 1984. The decree adopted an agreement of the parties and awarded joint custody of the children. Father was in the United States Air Force, stationed in Germany. Consequently, the decree provided that if father was unable to exercise his custody rights his parents would exercise father’s rights.1 In 1987, mother withheld father’s custody and visitation rights. She alleged the children, now ages seven and eight, were being physically, psychologically and sexually [38]*38abused during their visits with father or his parents. Mother instituted a motion to modify by petitioning the trial court for modification of custody order.

On September 30, October 26, and October 27, 1987, the trial court heard mother’s second amended motion to modify together with father’s first amended motion to modify and motion for contempt. He alleged mother willfully denied him custody under the decree. On October 27, 1987, by agreement of the parties the hearing was suspended and ordered continued until January 22, 1988. The court ordered, pending further hearing, that the parties undergo counseling with a therapist, to be selected by mutual agreement of the parties. Father was ordered to undergo separate, individual counseling preparatory to joint counseling with his two children. The joint counseling was to commence when the therapist deemed it reasonably safe for the children. The parties, pursuant to the consent order, stipulated in open court that the therapist’s written report would be admissible in future proceedings on the pending motions.

After only two sessions, the therapist decided any contact between the father and the children would be dangerous. The therapist discontinued the sessions because he felt father was simply showing up for therapy and not really working to cure the problems.

The hearing resumed on April 21, 1988. The court issued findings of fact and law, and awarded mother sole custody of the two children and terminated any further contact between father and the two children.

Father’s principal complaint is there was no substantial evidence to support modification of the decree awarding sole custody to mother or to terminate all contact between father and children. He also challenges the termination of visitation by paternal grandparents. Specifically, father contends the trial court’s fifth and sixth findings of fact are erroneous. In the court’s fifth finding of fact the court found father refused to cooperate in the psychological evaluation process and indicated an unwillingness to comply with court orders. The sixth finding of fact was father intentionally undermined the mother’s authority as primary custodian and did not intend to change this behavior.

Father also claims there was not sufficient evidence of the financial condition of the parties in the record to support an award to mother of $10,065 in attorney’s fees. In addition, father argues the court erred when it admitted evidence of his conduct prior to dissolution and excluded two medical exhibits. Father also contended he was prejudiced in preparation for trial by unequal access to the children for purposes of medical and psychological evaluation.

Father’s first point on appeal is the custody and visitation findings and conclusions contained in the trial court’s order are against the weight of the evidence. We do not re-weigh the evidence. That is the function of the trial court. Rather, we review claims that the trial court judgment is unsupported by substantial evidence. In that light, we find there was ample evidence to support modification of decree and award of sole custody to mother. However, the denial of visitation at the home of the children is not supported by the evidence.

The testimony which supports the trial court’s custody findings and order is substantial. Mother offered testimony from three witnesses concerning the effect of joint custody and the relationship currently existing between the children, father and paternal grandparents. Dr. Joel Ray, a clinical psychologist diagnosed the children as being emotionally disturbed and found their behavior to be consistent with abuse but he could not say abuse was the cause of the disturbance in these children. Dr. A.E. Daniel, a physician and psychiatrist, testified the children had been subjected to physical abuse by their grandfather, grandmother and father in the environment in Montgomery County. His conclusions were based upon facts- reported to be several years old and he was not aware of any current physical abuse beyond suspicion. He refused to recommend father not be allowed to see the children. When asked [39]*39about visitation rights he responded, “Certainly,”, “no problem [with that].” Dr. Ann Dell Duncan, a clinical psychologist, testified the boys gave descriptive indication that they had been traumatized at the hands of both the father and the grandparents. She suggested supervised visitation followed by unsupervised visitation for the father only, none for his parents.

Dr. Corrales and Dr. Ro-Trock evaluated father, mother, children, step-father, and paternal grandparents. Both recommended mother be given primary custody of the children. Even father’s expert witness psychologist, Dr. James Hall, testified: “there’s a lot of anxiety in the boys ... there’s something wrong in the relationship between them and their father and grandparents on father’s side.” This evidence was sufficient to support the award of sole custody to the mother. We cannot say the trial court abused its discretion and we defer to the trial court and its opportunity to judge the credibility of the witnesses. Rule 73.01; C.J.(S.)R. v. G.D.S., 701 S.W.2d 165, 167 (Mo.App.1985).

We next consider father’s third point on appeal. Father claims the court erred in admitting mother’s evidence of events and circumstances in violation of § 452.410 RSMo 1986 because these events were known to mother at the time of the prior hearing. Specifically, father objects to the testimony of former neighbors, mother, and psychologist Dr. Duncan, all of whom testified father abused the children prior to the parties’ dissolution.

Section 452.410 RSMo 1986 states in pertinent part:

The court shall not modify a prior custody decree unless it has jurisdiction under the provisions of Section 452.450 and it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child. (Emphasis added).

The policy underlying § 452.410 in not allowing evidence of events which occurred prior to a previous decree is that these events have been merged into the previous decree. McFadden v. McFadden, 509 S.W.2d 795, 798 (Mo.App.1974). This evidence may not be relitigated under the doctrine of res judicata because judgment upon the evidence is conclusive as to the rights of the parties. Id.

Here the issue of custody was not litigated at the previous hearing because the parties agreed to joint custody.

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Cite This Page — Counsel Stack

Bluebook (online)
779 S.W.2d 36, 1989 Mo. App. LEXIS 1539, 1989 WL 125664, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kjb-v-cmb-moctapp-1989.