S.L.J. v. R.J.

821 S.W.2d 104, 1991 Mo. App. LEXIS 893, 1991 WL 97975
CourtMissouri Court of Appeals
DecidedJune 11, 1991
DocketNo. 58617
StatusPublished
Cited by4 cases

This text of 821 S.W.2d 104 (S.L.J. v. R.J.) 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
S.L.J. v. R.J., 821 S.W.2d 104, 1991 Mo. App. LEXIS 893, 1991 WL 97975 (Mo. Ct. App. 1991).

Opinion

REINHARD, Presiding Judge.

Father appeals from orders entered in the trial court after a trial on his motion to modify child custody provisions, mother’s cross-motion and her motions for contempt. We reverse in part and remand in part.

The parties’ marriage was dissolved in 1987 and we affirmed the trial court’s judgment and decree in S.L.J. v. R.J., 778 S.W.2d 239 (Mo.App.1989). Provisions in the decree as pertaining to the children were that mother was to be the physical custodian with father having extensive “temporary custody and visitation.”1 Father’s actual custody rights in terms of time were in excess of 50%. A guardian ad litem had been appointed for the children, Robert, presently aged 13, and Daniel, aged 10, in the dissolution proceedings.

In father’s Motion to Modify filed on May 4, 1988, he alleged that since October, 1987, the older of the two children, Robert, had refused to live with mother. He requested that the decree be modified to grant him custody of Robert. He also filed a Request for the Appointment of a Guardian Ad Litem on July 26, 1989,2 which the court denied. Mother filed her Amended Cross-Motion to Modify on September 21, 1989, in which she alleged that:

Unless [father’s] temporary custody and custody rights are severely limited and restricted and supervised by Court services or Division of Family Services, that [father] will continue to disobey the Orders of this court, will continue to endeavor to alienate the minor children from [mother], will continue to teach the minor children by word and example that they do not have to obey the orders of this Court, will interfere with [mother’s] custody rights, and will cause emotional and psychological harm to the children ... Unless the minor child Robert Michael J_ is provided with counseling, both individually and family counseling with [mother], irreparable harm will come to said minor child as well as irreparable harm to the relationship of [mother] and said minor child.

Both parents also filed Motions for Contempt. At the hearing mother’s evidence indicated that contrary to the order of the court she was denied access to the children while they were with their father, that father had refused to return Daniel, the younger child, when her custody period began, had frequently involved both children in his disputes with mother. Robert J_, the older son, testified that he wished to live with his father and that if the court ordered him to live with his mother he would refuse to do so.

The trial court, on March 1, 1990, in its findings of fact, conclusions of law and order, held that:

The Court finds that [father] has not ceased and desisted from interfering [106]*106with and intentionally violating the custody provisions of the Court’s Orders and poisoning the minds of the children against [mother] ... Temporary Custody and unsupervised visitation would adversely affect the children’s emotional health and development ... It is, therefore, in the best interests of the minor children that [father] have no rights of temporary custody with said children and that [father] have rights of visitation with said children for four hours each week under the supervision of [court personnel] ...
The minor children, Robert J_ and Daniel J_ shall reside with [mother], who has been awarded primary legal and physical custody of them. They shall follow her directions and instructions, as the primary custodial parent. Upon failure of said children to obey the orders of this Court, this cause shall be referred to the Juvenile Court of St. Louis County, Missouri. A copy of this Order shall be served upon Robert J_and return shall be made by the Sheriff to this Court. This Court cannot tolerate defiance of its Order and such evidence of defiance was exhibited by Robert J_to this Court directly during his testimony.

The court also ordered, after commenting upon the number of lawsuits filed by father, that:

[Father] shall not file any new litigation against [mother] until and unless he first posts a bond in the amount of $25,000 to protect [mother] from the financial burden of undue harassment ...

This appeal followed.

Father first contends that the trial court erred in refusing to appoint a guardian ad litem because mother’s Motion to Modify and her contempt motion raised allegations of abuse, thereby mandating the appointment.

The relevant statute, § 452.423.1 RSMo Cumm.Supp. 1989, states:

1. In all proceedings for child custody or for dissolution of marriage or legal separation where custody, visitation, or support of a child is a contested issue, the court may appoint a guardian ad litem. The court shall appoint a guardian ad litem in any proceeding in which child abuse or neglect is alleged. (Emphasis added.)

Father relies on Hough v. Hough, 794 S.W.2d 252 (Mo.App.1990); Leonard v. Leonard, 783 S.W.2d 514 (Mo.App.1990); and Johnson v. Johnson 812 S.W.2d 176 (W.D.1991). These cases held that the trial court must appoint a guardian ad litem prior to proceeding if the petition alleges child abuse and neglect. In all of them, however, specific allegations of abuse or neglect were made. In Johnson, for example, husband accused wife of “neglectpng] the physical and mental health of the minor child by allowing the child to be frequently ill ... ” Johnson, at 177. In Leonard, a specific allegation of child sexual abuse had been made. Leonard at 515. In Hough husband alleged that wife “neglects the health of the minor children and has endangered the health of the minor children by encouraging and permitting irresponsible use of medications.” Hough at 253. We conclude that the pleadings here did not allege abuse or neglect as contemplated by the legislature and thus did not necessitate the appointment of a guardian ad litem.

This conclusion does not, however, end our inquiry. Both §§ 452.423.1 and 452.-490.4 allow the appointment of a guardian ad litem “[i]f the court finds it to be in the best interests of the child ...” § 452.490.4, RSMo 1986. Clearly the substance of these directions is to allow for the appointment of a guardian ad litem if the circumstances of the case warrant such an appointment. This is one of these cases. The acrimony of the relationship between the parents has already raised concerns about emotional and psychological damage. In addition, the trial court felt compelled to have a 13-year old child served with his order and to suggest that the involvement of juvenile authorities may be required. This alone buttresses the need to have independent representation of the children in this case. We also note that a guardian ad litem was appointed to represent the chil[107]*107dren in the dissolution proceedings. While technically a motion to modify is a separate and distinct proceeding from the original dissolution, it is clear that the same problems that arose in that case with respect to the children continue in this one.

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Bluebook (online)
821 S.W.2d 104, 1991 Mo. App. LEXIS 893, 1991 WL 97975, Counsel Stack Legal Research, https://law.counselstack.com/opinion/slj-v-rj-moctapp-1991.