Sadowski v. Brewer

693 S.W.2d 891, 1985 Mo. App. LEXIS 3435
CourtMissouri Court of Appeals
DecidedJune 27, 1985
DocketNo. 13764
StatusPublished
Cited by6 cases

This text of 693 S.W.2d 891 (Sadowski v. Brewer) 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
Sadowski v. Brewer, 693 S.W.2d 891, 1985 Mo. App. LEXIS 3435 (Mo. Ct. App. 1985).

Opinion

CROW, Judge.

John S. Sadowski and Selma J. Sadowski (“plaintiffs”), grandparents of Melissa Ann Brewer (“Missy”), petitioned the Juvenile Division of the Circuit Court of Christian County per § 452.402, RSMo 1978, for reasonable visitation rights with Missy, alleging that Missy’s mother — plaintiffs’ daughter Carol Jean — was deceased, that Missy was residing with her father, Greg R. Brewer (“defendant”), and that he had refused to allow plaintiffs to have reasonable visitation with Missy.

The trial court appointed a guardian ad litem for Missy, conducted a hearing, and entered judgment granting plaintiffs a carefully drafted schedule of visitation rights. The judgment awarded a $400 fee to Missy’s guardian ad litem, taxing it as costs. § 514.335, RSMo Supp.1983. All costs were assessed against plaintiffs.

Plaintiffs appeal, their sole complaint being that the trial court erred in taxing the costs against them.

The pleadings and evidence established that Missy, the only child of the marriage between defendant and plaintiffs’ daughter Carol Jean, was born May 29, 1977, that the marriage of defendant and Carol Jean was dissolved October 9, 1981, that the decree of dissolution awarded custody of Missy to Carol Jean and granted defendant visitation rights, and that Carol Jean died August 10, 1983.

At the time of Carol Jean’s death, Missy was with defendant pursuant to his visitation rights. Defendant immediately assumed primary custody of Missy. According to plaintiffs, defendant made a demand on them for a share of the proceeds of a $20,000 insurance policy on Carol Jean’s life. Plaintiffs refused, whereupon defendant forbade any further contact between them and Missy. Plaintiffs filed this action September 27, 1983.

Plaintiffs’ evidence, in substance, was that defendant spurned all of their entreaties for visitation. Defendant’s evidence, in substance, was that plaintiffs made none.

The trial court, in its judgment, found that defendant had refused to allow plaintiffs reasonable visitation rights. That finding was supported by substantial evidence, and we need not lengthen this opinion by summarizing it.

Plaintiffs maintain that under Rule 77.-01, Missouri Rules of Civil Procedure (15th ed. 1984), the trial court was required to assess the costs against defendant. Rule 77.01 states:

“In civil actions, the party prevailing shall recover his costs against the other party, unless otherwise provided in these rules or by law.”

Alternatively, plaintiffs contend that if the taxing of costs against defendant was not mandatory under Rule 77.01, the trial court nonetheless abused its discretion in taxing the costs against them inasmuch as this suit was necessitated by defendant’s arbitrary refusal to let them see Missy.

Rule 77.01, supra, was adopted June 5, 1980, effective January 1, 1981. It is substantially the same as prior Rule 77.06, which provided:

“In all civil actions, or proceedings of any kind, the party prevailing shall recover his costs against the other party, except in those cases in which a different provision is made by law.”

Prior Rule 77.06 appeared in the above form as far back as 1959. See Vol. 4, RSMo 1959, p. 5008.

Section 514.060, RSMo 1978, which has remained unchanged since RSMo 1949, states:

“In all civil actions, or proceedings of any kind, the party prevailing shall recover his costs against the other party, except in those cases in which a different provision is made by law.”

[893]*893Although the statute and rules just cited are mandatory in tone, the following cases, among others, have held that in equity actions, courts have inherent discretionary power to award costs, that either party may be ordered to pay the costs or they may be apportioned among the parties, and that the determination of this question by the trial court will not be disturbed by an appellate court unless there is an abuse of discretion. Gieselmann v. Stegeman, 470 S.W.2d 522, 525[5] (Mo.1971); Community Land Corp. v. Stuenkel, 436 S.W.2d 11, 18[12, 13] (Mo.1968); Schwartz v. Shelby Construction Co., 338 S.W.2d 781, 795[16] (Mo.1960); Sitzes v. Raidt, 335 S.W.2d 690, 703[10] (Mo.App.1960); Amitin v. Izard, 262 S.W.2d 353, 356[2, 3] (Mo.App.1953).

We therefore examine the record to determine whether the taxing of costs against plaintiffs was an abuse of discretion.

In deciding that issue, we note that at the time of the dissolution between defendant and Carol Jean, she was residing in Ozark with Missy. Plaintiffs reside 2 miles east of Ozark. For the first year and a half after the dissolution, plaintiff Selma Sadowski took care of Missy from 6:30 a.m. to 4:30 p.m., while Carol Jean was at work. Carol Jean eventually married Terry Bradley and moved to Strafford, but she frequently bought Missy to visit plaintiffs. Plaintiffs’ activities with Missy included swimming, boating, flying in plaintiff John Sadowski’s airplane, feeding plaintiffs’ farm animals and riding the tractor. The evidence showed, without contradiction, an excellent relationship between plaintiffs and Missy. The trial court found that visitation by plaintiffs would be in Missy’s best interests and would not endanger her physical health or impair her emotional development.

Defendant, on January 14, 1983, had married his present wife, Cathy Jean. At time of trial, defendant and Missy were living with Cathy Jean and her two children, a son age 10 and a daughter age 8, in a three-bedroom home owned by Cathy Jean in Nixa.

Regarding the insurance dispute, defendant testified:

“The insurance policy was brought up, but I’ve known all along that I had no right to it. It was to my daughter. That’s her money. I never said — the only thing I’ve ever suggested, that at the time of the funeral, or a little bit after, or the following day of the funeral I did say that in the future with a two— three-bedroom house Melissa would need another bedroom, and I asked [plaintiff John Sadowski] as part of that, that maybe through the years I could have a little bit of interest off of her estate, that maybe could go to help me build on a room for her, because anybody that knows what I make at Fasco knows that it’s hard to get by with what you’ve got, let alone adding anything else on.”

At a hearing on September 14, 1983, in the Probate Division of the Circuit Court of Christian County regarding Missy’s estate, defendant admitted he had once stated that plaintiffs “might have to go through court” to obtain visitation.

Plaintiff John Sadowski testified that the day after Carol Jean’s funeral, defendant came to plaintiffs’ home and stated: “John, you know I don’t make very much money. I need $6,000.00 of that money.”

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Bluebook (online)
693 S.W.2d 891, 1985 Mo. App. LEXIS 3435, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sadowski-v-brewer-moctapp-1985.