R.W.H. v. D.M.H.

898 S.W.2d 144, 1995 WL 310679
CourtMissouri Court of Appeals
DecidedMay 23, 1995
DocketNo. 66006
StatusPublished
Cited by8 cases

This text of 898 S.W.2d 144 (R.W.H. v. D.M.H.) 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
R.W.H. v. D.M.H., 898 S.W.2d 144, 1995 WL 310679 (Mo. Ct. App. 1995).

Opinion

CRANDALL, Judge.

R.W.H. (father) appeals from the judgment of the trial court, on the cross-motions of both parties, to modify the decree of dissolution of his marriage to D.M.H. (mother) regarding child custody and child support. We affirm in part and reverse and remand in part.

The parties’ marriage was dissolved in October 1991. There were two children born of the marriage: a daughter born January 27, 1981; and a son born July 30, 1986. The decree provided that mother and father have joint legal custody of the children, with primary physical custody in father. Mother was granted temporary custody and certain visitation rights. Neither party was required to pay child support to the other.

Father filed his motion to modify in March 1993. In the motion, he alleged, inter alia, that mother physically abused the children, that she left them unsupervised during summer visitation, that she did not provide sufficient living quarters for them, and that she had experienced an increase in income since the decree of dissolution was entered. He sought full custody of the children, supervised visitation for the children with mother, and child support from mother.

Mother brought a cross-motion to modify. She alleged, inter alia, that father interfered with her visitation rights, did not comply with the joint custody order, attempted to alienate the children from her, and emotionally abused the children. She sought full custody of the children, reasonable visitation rights for father, and child support from father.

After hearing extensive evidence, the trial court found a substantial change of circumstances, as follows: the parties experienced difficulties in exercising visitation as well as in reaching decisions and communicating about the children; there were allegations of emotional abuse of the children directed to both parties; there were allegations of telephone harassment; there was a lack of supervision of the children; and mother exercised “inappropriate and inadequate parenting skills.” Accordingly, the court modified the decree of dissolution. The court found that joint custody was no longer appropriate and awarded primary legal and physical custody of both children to father. With regard to daughter, the court found that visitation and custody by mother might impair daughter’s emotional development; and ordered supervised visitation to be monitored by, and take place in the home of, father’s mother. The court did not alter mother’s temporary custody and visitation rights with regard to son. The court required father to continue to provide counseling for both children for no less than six months, unless such counseling was terminated by the counselor prior to that time. The court departed from the Form 14 calculations and ordered mother to pay child support of $15.00 per child per week, but the court failed to set forth the rationale for its departure from the Form 14 guidelines.

We view the evidence most favorably to the decree. At trial, father’s expert, a psychologist who treated daughter and son as patients, testified that both children experienced more stress and anxiety when they were with mother than when they were with father and that daughter’s relationship with mother was particularly strained. In her opinion, son’s anxiety stemmed from “the divorce and ... custody issues and to him being caught in the middle.” She reported that son had frequent nightmares. When asked whether either party should have a third person present when visiting with the children, the psychologist responded:

In my experience, that type of visitation is normally suggested when there has been evidence or reason to suspect physical or sexual abuse.... I don’t find that, although I do think there may be some emotional abuse. And Ryan, especially, has difficulty — any seven-year-old would— in protecting himself and knowing how to respond to that. I think his sister is better equipped to deal with things than Ryan. It’s a tough one. It may be safer for Ryan if there’s a third person, but it does impose a lot of restrictions on the quality of time and the context of interaction for him and his mom.

She suggested joint counseling with daughter and mother to resolve daughter’s anger toward mother. She also suggested that both [147]*147parties come together for counseling to provide an environment for son in which he felt free to express his negative feelings toward them.

Father testified that he and mother argued about the children. He alleged that mother harassed him with telephone calls, to such an extent that he got a full order of protection against her. He and mother also had altercations in front of the children, on one occasion at a church function for the children. He reported that daughter had “run away” on two different occasions.

Mother testified that she worked at a fast food restaurant for about 28 to 35 hours per week, earning a monthly gross income of about $775.00. When the children were at her home for summer vacation, she left them alone until about 11:00 a.m. in the morning while she worked. She stated that father interfered with her scheduled visitation and discouraged the children from communicating with her at other times. She said that father didn’t consult with her about medical treatment for the children and failed to inform her about the children’s progress in school or about school functions. She reported that son was more pleasant when he was alone with her and she experienced no disciplinary problems with him. She admitted that she and daughter argued and that daughter wanted nothing to do with her at that point in time. She stated that she did not want to force daughter to have contact with her.

Both of the children testified in camera. Daughter, who was 12 years of age at the time of the hearing, stated that she wanted to live with father and did not want to see or talk to mother. She said that all she did at mother’s house was babysit and do household chores. She also said that she and mother fought “all the time.” She reported that most of the altercations between her and mother involved yelling and screaming at each other. There was an incident in December 1993, however, where a disagreement between them escalated to the point where mother pushed daughter against the refrigerator.

Son, who was seven years of age at the time of the hearing, testified that he, too, wanted to live with father and visit mother; but indicated his desire to visit mother even more often, whether or not daughter accompanied him. He said he was afraid when mother argued with either father or daughter.

In his first point, father contends the trial court erred in failing to order mother’s visitation with son be supervised. The court found that “reasonable visitation of [son] by the [mother] does not endanger [son’s] physical health or emotional development so as to require supervised visitation....” Father argues that permitting son to continue his visitation in accordance with the original decree was against the weight of the evidence.1

Our standard of review is set forth in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). We do not review the ease de novo. The power to set aside the decree on the ground that it is against the weight of the evidence should be exercised with caution and only if there is a firm belief that the decree is wrong. Id.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Baker v. Gonzalez
315 S.W.3d 427 (Missouri Court of Appeals, 2010)
Clark v. Clark
101 S.W.3d 323 (Missouri Court of Appeals, 2003)
Wofford v. Wofford
991 S.W.2d 194 (Missouri Court of Appeals, 1999)
Buschardt v. Jones
998 S.W.2d 791 (Missouri Court of Appeals, 1999)
In Re Marriage of Pobst
957 S.W.2d 769 (Missouri Court of Appeals, 1997)
Mayes v. Mayes
941 S.W.2d 37 (Missouri Court of Appeals, 1997)
Vangundy v. Vangundy
937 S.W.2d 228 (Missouri Court of Appeals, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
898 S.W.2d 144, 1995 WL 310679, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rwh-v-dmh-moctapp-1995.