Snoke v. Bordenaro

913 S.W.2d 407, 1996 Mo. App. LEXIS 54, 1996 WL 12943
CourtMissouri Court of Appeals
DecidedJanuary 16, 1996
DocketWD 50761
StatusPublished
Cited by10 cases

This text of 913 S.W.2d 407 (Snoke v. Bordenaro) 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
Snoke v. Bordenaro, 913 S.W.2d 407, 1996 Mo. App. LEXIS 54, 1996 WL 12943 (Mo. Ct. App. 1996).

Opinion

HANNA, Judge.

The father, appellant, appeals from the court’s judgment of February 15,1995, which adopted the Findings and Recommendations of the Commissioner of the Family Court, awarding the mother unsupervised and gradually unrestricted visitation of their daughter.

In January 1992, the trial court entered a Declaration of Paternity declaring Edward Snoke the natural born father of Lauren, born February 3, 1989. The court awarded custody of Lauren to her father, limiting the mother to restricted and supervised visitation due to her abuse of alcohol and prescription drugs. The order allowed the mother to have supervised, restricted visitation with Lauren “so long as respondent is not under the influence of drugs or alcohol.” The court further ordered the mother to pay $100 per month in child support.

The mother filed a motion to modify in June 1993, seeking custody of Lauren. However, at trial she requested only unsupervised visitation. The father filed a cross-motion of modification seeking further restrictions on the mother’s visitation and increased child support. Findings and recommendations were issued by the Commissioner of the Family Court after a hearing in January 1995. The Commissioner’s order allowed the mother unsupervised visitation, subject to temporary safeguards to ensure that the mother did not abuse intoxicants in her daughter’s presence. Specifically, the Commissioner ordered that no more than 48 hours before a scheduled visitation, the mother was to provide the father with written results of a blood or urine test. If the test results were positive for alcohol, an unprescribed substance, or a prescribed substance in an amount greater than the prescribed dosage, then the mother would forfeit her visitation rights. This restriction was to be lifted on June 30, 1995. 1 The trial court adopted these findings and recommendations without a hearing. The court ordered unsupervised visitation on alternate weekends, alternate holidays, four continuous weeks each summer, and each year on the child’s birthday.

The father asserts that the court erred in adopting the Commissioner’s Findings and Recommendations, because the mother failed to meet her burden of showing proof of treatment and rehabilitation, as required by § 452.400.2, RSMo 1994, to warrant allowing unsupervised and unrestricted visitation. Additionally, he urges that the order does not serve the best interests of the child, because unrestricted and unsupervised visitation would endanger the child’s safety and welfare in violation of § 452.400.1, RSMo 1994.

Our standard of review is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), and we must uphold the trial court’s judgment unless it lacks substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or misapplies the law. Id. at 32.

Section 452.400.2, RSMo 1994, provides in pertinent part:

When a court restricts a parent’s visitation rights or when a court orders supervised visitation because of allegations of abuse or domestic violence, a showing of proof of treatment and rehabilitation shall be made to the court before unsupervised visitation may be ordered.

Here, as in any other case involving the modification of visitation rights, the paramount concern of the court is whether the *409 order serves the best interests of the child. See Ansevics v. Cashaw, 881 S.W.2d 247, 252 (Mo.App.1994). We give great deference to the trial court’s assessment of what serves the best interests of the child, because it is in the better position to judge the credibility of the witnesses, as well as their sincerity, character, and other intangibles not completely revealed by the record. See Sinopole v. Sinopole, 871 S.W.2d 46, 48 (Mo.App.1993). This deference is critical in domestic cases, where testimony is often sharply divergent and lawyers are prone to reargue the facts on appeal. Amedei v. Amedei, 801 S.W.2d 491, 494 (Mo.App.1990). Thus, we will affirm the decision of the trial court unless we are firmly convinced that the welfare of the child requires some other disposition. Gaston v. Gaston, 776 S.W.2d 465, 467 (Mo.App.1989).

The original court order restricted the mother’s visitation because she abused alcohol and prescription drugs. Evidence of the mother’s treatment and rehabilitation since this order consisted primarily of the testimony of two witnesses. The mother testified that since the original order of January 1992, she has overcome her addictions. She testified that she has been attending Alcoholics Anonymous and Narcotics Anonymous meetings, and has been receiving psychological counseling on and off since January 1992. She further testified that she has been receiving counseling from a minister, beginning approximately five months prior to the January 1995 trial. 2 The only prescription medication she currently takes is hydrocotone for a cyst on her right ankle.

Other favorable testimony supporting unsupervised visitation was from the mother of a family with whom the respondent has been living since October 1994. This mother testified that she has never seen the respondent under the influence of alcohol or narcotics. She further testified that she allows the respondent to babysit her four children. Additionally, the father testified that when he picks Lauren up from visitation with the mother, he has not seen her under the influ-enee of any intoxicant for at least one year prior to the January 1995 hearing. However, this contact with the mother is limited to the infrequent occasions that he sees her in person.

There was evidence that the mother continued to have a problem with intoxication after she began receiving counseling from a minister and moved in with the family in October 1994. Specifically, the respondent’s mother testified that she suspected that her daughter was “under the influence of something” when she came to her house once in December 1994, when the minor child was present. Also, the father stated that he believed that the mother had been drinking on several occasions when he talked with her on the phone. However, this testimony was controverted by the mother, and since the trial court was in the best position to weigh the conflicts, we must defer to its assessment of the credibility of these witnesses. Gaston, 776 S.W.2d at 467.

Certain facts were uncontested. The mother has had a problem with alcohol since 1981, dating back to her senior year in high school. She has been in four rehabilitation programs since she first got involved with alcohol and drugs. The trial court restricted the mother’s visitation in its January 1992 order because of her alcohol and drug abuse.

Contrary to the mother’s testimony, the documented evidence and her reluctant admissions reveal that her involvement with drugs and alcohol does not appear to have changed.

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

Related

Miller v. Miller
184 S.W.3d 174 (Missouri Court of Appeals, 2006)
Young v. Beckman
147 S.W.3d 899 (Missouri Court of Appeals, 2004)
Sanders v. Smith
84 S.W.3d 549 (Missouri Court of Appeals, 2002)
Searcy v. Searcy
38 S.W.3d 462 (Missouri Court of Appeals, 2001)
Cabral v. Cabral
28 S.W.3d 357 (Missouri Court of Appeals, 2000)
In Re GPC
28 S.W.3d 357 (Missouri Court of Appeals, 2000)
Connor v. Bruce
983 S.W.2d 625 (Missouri Court of Appeals, 1999)
State ex rel. Heiserman v. Heiserman
941 S.W.2d 768 (Missouri Court of Appeals, 1997)
Dover v. Dover
930 S.W.2d 491 (Missouri Court of Appeals, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
913 S.W.2d 407, 1996 Mo. App. LEXIS 54, 1996 WL 12943, Counsel Stack Legal Research, https://law.counselstack.com/opinion/snoke-v-bordenaro-moctapp-1996.