Pilger v. Pilger

972 S.W.2d 628, 1998 WL 344874
CourtMissouri Court of Appeals
DecidedJune 30, 1998
Docket21854
StatusPublished
Cited by8 cases

This text of 972 S.W.2d 628 (Pilger v. Pilger) 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
Pilger v. Pilger, 972 S.W.2d 628, 1998 WL 344874 (Mo. Ct. App. 1998).

Opinions

PARRISH, Presiding Judge.

Robert Theodore Pilger (father) appeals the judgment in an action for dissolution of his marriage to Joanne Yvette Pilger (mother). This court affirms the judgment in part, reverses it in part and remands.

The parties were married February 13, 1986. They have two children. The trial court dissolved the marriage and awarded custody of the children to mother. It granted father visitation rights “under such supervision and conditions as the mother determines that the children will be safe.” Father raises three points on appeal. He contends the trial court erred in denying requests he made for continuance; that the trial court erred in imposing unenforceably vague restraints on his visitations with the children; and that the trial court erred in permitting the testimony of a psychologist who treated him as a patient. Relative facts are included in the discussion of father’s points.

This case was set for trial May 30, 1997. Father’s attorney filed a motion for continuance May 23, 1997. Father filed a further ;pro se motion for continuance the day of trial. The basis for the motion filed by father’s attorney was that comprehensive psychological evaluations of the parties and the children had not been completed. The pro se motion likewise asserted that psychological evaluations of the parties and the children needed to be completed and a psychological report obtained.

The trial court denied the motions for continuance explaining that lengthy delays had occurred since the case was filed. The trial judge advised the parties that if during the course of the trial he determined it was necessary or desirable for there to be “either [psychological] reports and/or testimony by a professional,” the court would continue the case at that time for that purpose. The trial judge suggested that if the case were continued, it would be no closer to being resolved in 60 days than if the case went to trial as scheduled.

“The granting or denial of a continuance is a matter within the sound discretion of the trial court.” Lakepoint Condominium 2 Owners Ass’n. v. Durian, 906 S.W.2d 396, 399 (Mo.App.1995). “Whether in a given case there is sufficient reason to grant a continuance is to be determined by the trial court.” Inloes v. Inloes, 567 S.W.2d 732, 734-35 (Mo.App.1978). This court finds no abuse of discretion by the trial court’s denial of the motions for continuance under the circumstances of this case. Point I is denied.

Point II is directed to father’s visitation rights with the children. The trial court limited father to “reasonable supervised visitation.” The judgment provides as to child custody and visitation:

The Court further finds that two (2) children were born to the marriage, Sierra Noelle Pilger, birth date 12-27-86 and Candace Michelle Pilger, birth date 11-28-89. The Court orders that care, custody and control of said minor children be placed with [mother] subject to reasonable supervised visitation by [father]- The Court orders father’s visitation be under such supervision and conditions as the mother determines that the children will be safe. Supervised visitation shall continue until father obtains counseling which results in the mother determining that the children will be safe, or the father present [sic] such information to the Court, that it can determine that the children will be safe.

Father contends “(A) said order is so vague as to be unenforceable; and (B) said order places sole discretion with [mother] to arbitrarily determine visitation rights.”

Section 452.400.11 provides:

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. The court shall define the noncustodial parent’s visitation periods in detail at the request of either party.

[630]*630Father’s brief complains that the trial court did not define his visitation periods in detail. He argues that the trial court was required to define periods of time in which he would be permitted to visit with the children because he filed a pro se motion with the trial court May 30, 1997, entitled “Motion to Reconsider Visitation.”2 It requested that “the Circuit Court of Christian County, Missouri, ... issue an immediate Order granting [father] fair, reasonable and regularly scheduled visitation with his two minor children.”

Trial was held May 30,1997, the same day father’s pro se “Motion to Reconsider Visitation” was filed. The trial court took the case under advisement at the close of the evidence. The record does not reflect that father’s motion was brought to the attention of the trial court then or at any other time. Judgment was entered June 6,1997.

Father’s claim that his “Motion to Reconsider Visitation” suffices as a request to define visitation as prescribed by § 452.400.1 is questionable. The motion requested the trial court to reconsider an earlier request for temporary visitation that had been denied. Regardless, the claim of error in Point II is that the part of the judgment that awarded visitation rights “is so vague as to be unen--forceable.” It goes to the text of the judgment, not to the question of whether father requested the trial court to specify detailed visitation periods. “Questions for decision on appeal are those stated in points relied on. A question not presented in that manner is not an issue for appellate review.” State v. Pagano, 882 S.W.2d 326, 335 (Mo.App.1994).

The evidence was sufficient for the trial court to conclude that unrestricted visitations by father could endanger the children’s physical health and mental development and to warrant imposition of restrictions on his visitations.3 The determination that unrestricted visitations would endanger the children is implicit in the judgment’s recitations. See Van Pelt v. Van Pelt, 824 S.W.2d 135, 137 (Mo.App.1992); Flaton v. Flaton, 777 S.W.2d 948, 951 (Mo.App.1989).

Nevertheless, father’s complaint that the judgment is vague and unenforceable with respect to what conditions are required for him to exercise visitation is well taken. The condition that visitation be “under such supervision and conditions as the mother determines that the children will be safe” does not define circumstances for his visits. The attempted restrictions are indefinite. “Provisions in a judgment should be definite and indefinite provisions are void and unenforceable.” In re Marriage of Brooke, 773 S.W.2d 496, 499 (Mo.App.1989). The case must be remanded for the trial court to establish and prescribe with definiteness conditions and circumstances that will be required for father to exercise reasonable visitation. Those conditions and circumstances shall assure that [631]*631the physical health and emotional development of the children will not be endangered.

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Pilger v. Pilger
972 S.W.2d 628 (Missouri Court of Appeals, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
972 S.W.2d 628, 1998 WL 344874, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pilger-v-pilger-moctapp-1998.