M_A_R.K v. L_J.K

712 S.W.2d 445
CourtMissouri Court of Appeals
DecidedJune 11, 1986
DocketNo. 14222
StatusPublished
Cited by2 cases

This text of 712 S.W.2d 445 (M_A_R.K v. L_J.K) 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
M_A_R.K v. L_J.K, 712 S.W.2d 445 (Mo. Ct. App. 1986).

Opinion

CROW, Judge.

L_ J.K_ (“the father”) appeals from a decree entered March 8, 1985, dissolving his marriage to M_ A_ R.K_(“the mother”). Four of the five points relied on by the father pertain to the denial of his request for visitation rights with the parties’ two children, sole custody of whom was awarded to the mother. The father’s other point attacks the award of “indefinite maintenance” to the mother.

The gloomy saga chronicled in the transcript began when the parties were married in 1971. Their first child, a boy, was bom January 28, 1974; their other child, also a boy, was born November 1, 1975. The parties’ marriage was dissolved in December, 1980, custody of both sons being awarded to the mother.

On June 14, 1982, the mother and the father married each other again, and lived together until separating January 26, 1984. The mother had custody of the sons from the date of that separation until entry of the dissolution decree, March 8, 1985.

Pertinent to the father’s first four points, the decree contains the following findings:

“From the evidence received court finds that the wishes of the children (both of them) were that custody be with the mother and the children did not want to be with the father any for fear of being beat. The mother indicated that she wanted custody of the children. The father was more concerned with visitation with the children than custody. Dr. W_, a psychologist called by [the mother], testified that in his professional opinion the boys should have absolutely no visitation with the father under any circumstances. In his opinion, the boys would experience stress beyond their capacities and would be at psychological risk if visitation were allowed. The chil[447]*447dren did well in school and were active in church. The two boys were extremely close. The boys appeared to be in good health the day of trial although there was substantial evidence of beatings, shovings and kickings by [the father] to the children. There was evidence the children had been bruised by [the father]. Further [the father] called them names and used profanity to them. Court finds that it is in the best interests of the children that custody of the children be awarded to [the mother]. Further Court finds that it is in the best interest of the children, that no visitation be allowed to the father. This court is aware that it is important that both parents have a continuing relationship with the children. However, in this instance, the physical and mental well being of the children dictates no visitation be allowed by the father. The Court has explored the possibility of a supervised structured visitation and determined that again, in the best interest of the children, visitation not be allowed even under these circumstances.”

The trial that produced those findings took place March 1, 1985. After all of the witnesses had testified, the trial court, per § 452.385, RSMo 1978, interviewed both children, together, in the presence of counsel (but not the parties), and caused a record of the interview to be made. On June 28,1985, after the transcript had been prepared, the deputy circuit clerk notified counsel for both parties by letter that the trial court had entered the following order:

“Court directs the clerk to remove the pages of transcript from the attorneys copies which pertain to the interview of the children in chambers as the court ordered tha [sic] portion of the record closed. The clerk shall retain those copies in her office sealed so that the public does not have access to those proceedings. The interview in chambers tran-scripted [sic] shall remain in the original transcript but the court orders that the attorneys shall not copy any part of the interview w/the children from the original not [sic] shall they allow anyone other than an associate, partner, etc. working in their law firm to have access to the original transcript before forwarding it back to the court.”

The father’s third assignment of error — the first one we consider — asserts that the trial court’s refusal to allow the father’s counsel to question the children during the interview in chambers was an abuse of discretion, and plain error. The father tells us, in his brief, that a reading of the transcript of the interview will reveal that his counsel1 made an effort to question the children, but was denied that opportunity by the court. In saying that, the father flagrantly and inexcusably misstates the record.

We have carefully searched the portion of the transcript where the interview appears (pages 398-425), and have found absolutely no request by the father’s attorney to question the children, nor have we located any objection by the father’s attorney to the manner in which the trial court conducted the interview.

The father’s brief laments that inasmuch as he was denied that portion of the transcript containing the interview, he cannot quote the segment relevant to his third point. The statement is preposterous. The father’s attorney, on July 22, 1985, more than three weeks after entry of the order about which he complains, signed a certificate approving the original transcript (filed with us), which transcript contains the record of the interview. Obviously, the father’s attorney had access to the record of the interview long before he filed his brief,2 and could have easily noted the page or pages pertinent to his third point.

[448]*448The point is destitute of merit.

The father’s fourth point postulates that the trial court erred in ordering that the record of the interview with the children appear only in the transcript filed with us. The father alleges that this “was an abuse of discretion, without legal authority, and deprived [the father] of competently formulating his appellate argument, and was plain error.” The father cites no authority in support of this hypothesis.

We need not, in this appeal, explore the authority of a trial court to order a portion of a transcript withheld from public access, or the authority of a trial court to order a segment of a transcript deleted from the copies furnished counsel. The reason this is unnecessary is that the father has demonstrated absolutely no prejudice from the order he attacks. Furthermore, during the pendency of this appeal, the father requested no relief from us regarding that order.

The trial court conducted the interview with the children in a fair, impartial, and non-suggestive manner. As more fully appears later, everything the trial court learned from the children was favorable to the mother and deleterious to the father. The father neglects to explain how the order of June 28, 1985, hindered him in “formulating his appellate argument,” and no such handicap is apparent to us. The father’s attorney was present throughout the interview; consequently, had there been anything favorable to the father, it could have been highlighted in his brief. Instead of attempting to fabricate error in the trial court’s order, the father should be grateful that at least this segment of the record of his reprehensible behavior will remain sequestered from public view.

The point is meritless, and warrants no further comment.

We next address the father’s first two points, which will be considered together. The first point states:

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Related

D.S.P. v. R.E.P.
800 S.W.2d 766 (Missouri Court of Appeals, 1990)

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Bluebook (online)
712 S.W.2d 445, Counsel Stack Legal Research, https://law.counselstack.com/opinion/m_a_rk-v-l_jk-moctapp-1986.