State Ex Rel. Scott v. Goeke

864 S.W.2d 411, 1993 Mo. App. LEXIS 1715, 1993 WL 439382
CourtMissouri Court of Appeals
DecidedNovember 2, 1993
Docket64484
StatusPublished
Cited by12 cases

This text of 864 S.W.2d 411 (State Ex Rel. Scott v. Goeke) 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
State Ex Rel. Scott v. Goeke, 864 S.W.2d 411, 1993 Mo. App. LEXIS 1715, 1993 WL 439382 (Mo. Ct. App. 1993).

Opinions

PUDLOWSKI, Presiding Judge.

Relator, Mildred Scott, filed her writ of prohibition seeking this court’s order prohibiting the respondent from proceeding in a civil contempt proceeding without appointing a guardian ad litem (GAL). We issued a preliminary order and now determine that it was improvidently issued.

Relator and her ex-husband (husband) are both employed as deputy juvenile officers and their marriage was dissolved by the respondent on March 1, 1993. In the decree, husband was given temporary custody and specified visitation of the couple’s only child. Relator failed to abide by the order and husband filed a verified motion for contempt and obtained an order to show cause. Relator filed her reply which in part averred, “that the minor child has told [relator] that [413]*413she does not want to be with [husband] by herself or overnight and further has told [relator] that [husband] has hit her with a shoe.” Relator further sought in her reply an appointment of a GAL for the minor child.

On August 6, 1993, relator and husband appeared before respondent for a hearing on husband’s motion for contempt. Prior to the commencement of the hearing, relator motioned that a GAL be appointed for the child before continuing with the hearing. Respondent denied the motion and after the hearing entered orders which compelled relator to comply with the March 1,1993 order regarding husband’s visitation. Respondent found that relator refused to allow husband to exercise visitation at any time after March 1, 1993. Respondent also found that relator failed to abide by the March 1st order by refusing to provide the child’s residence address, providing husband and the court with a false address for the child and informing husband that he would never see his child again regardless of what anyone told her to do. Relator filed a petition for writ of prohibition and we granted a preliminary order in prohibition.

Prohibition is an independent proceeding to prevent or correct judicial proceedings that lack jurisdiction. State ex rel. Am. Family Mut. Ins. Co. v. Koehr, 832 S.W.2d 7, 8 (Mo.App.E.D.1992). A court should exercise its discretionary authority to issue an extraordinary remedy such as a writ of prohibition only when the facts and circumstances demonstrate unequivocally that there exists an extreme necessity for preventative action. State ex rel. 401 North Lindbergh Associates v. Ciarleglio, 807 S.W.2d 100, 103 (Mo.App.E.D.1990).

Relator argues that respondent acted without jurisdiction because a GAL was not appointed for the child during the contempt hearing. In her brief seeking the writ, relator relies on § 452.423.1, RSMo Cum.Supp. 19921 which provides:

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.

The trial court’s duty to appoint a GAL arises when there is evidence presented of abuse or when abuse is alleged in the motions or pleadings. Van Pelt v. Van Pelt, 824 S.W.2d 135, 139 (Mo.App.W.D.1992).

Relator contends she alleged abuse in her reply to husband’s motion for contempt. Chapter 452 does not define abuse but a definition in Chapter 210, which governs child protection and reformation, has been used by Missouri Courts to define abuse as provided in § 452.423.1. Osmun v. Osmun, 842 S.W.2d 932, 935 (Mo.App.E.D.1992). Section 210.110(1), RSMo 1986 defines abuse as “any physical injury, sexual abuse, or emotional abuse inflicted on a child other than by accidental means by those responsible for his care, custody, and control except that discipline including spanking, administered in a reasonable manner shall not be construed to be abuse.” The portion of relator’s allegation which states that the child does not wish to be with the husband cannot be construed as an allegation of abuse. The issue therefore is whether the allegation that the child told relator that husband hit her with a shoe, constitutes abuse within the meaning of § 452.423.1. Although this presents a close question, we find relator’s allegation insufficient.

Respondent found that husband had no visitation with the child after March 1, 1993. The alleged incident must therefore have occurred prior to the dissolution of the marriage. Some specificity regarding when the alleged incident occurred and when the child told relator about the incident was necessary. If prior to March 1, 1993, the child told relator about the incident then relator should have raised this issue during the dissolution proceeding and not four and one-half months later in response to a contempt motion. Cf. Aisadi v. Aisadi, 823 S.W.2d 123, 127 (Mo.App.S.D.1992).

[414]*414The definition of abuse in § 210.-110(1), RSMO 1986 provides that physical injury inflicted by accidental means does not constitute abuse. In Bertz v. Bertz, 856 S.W.2d 932 (Mo.App.S.D.1993), the mother testified that during a fight between the couple, the father pushed the child by the neck down a hallway.2 Because it could be inferred that the father’s anger was directed toward the mother and not the child, the court held that the father’s conduct did not constitute abuse within the meaning of § 452.423.1. Id. at 934. Section 210.110(1), RSMo 1986 also provides that discipline including spanking, which is administered in a reasonable manner does not constitute abuse. See Osmun, 842 S.W.2d at 935.

In-the present case, the allegation is ambiguous because it is unclear whether the incident falls within the exceptions provided in § 210.110(1), RSMo 1986. The allegation provides no details regarding the circumstances or timing of the incident. Although we recognize that allegations should be broadly construed, a minimum degree of specificity is required. See S.L.J. v. R.J., 821 S.W.2d 104, 105-06 (Mo.App.E.D.1991); Renfro v. Fehrmann, 817 S.W.2d 592, 593-94 (Mo.App.W.D.1991). Under the facts of this case, the allegation lacks the specificity to constitute an allegation of abuse within the meaning of § 452.423.1.

Even assuming relator’s allegation was sufficient, respondent did not err by failing to appoint a GAL for the contempt hearing. Pursuant to the first sentence of § 452.423.1, a trial court may appoint a GAL in all proceedings for child custody, dissolution of marriage or legal separation. The second sentence provides the court shall appoint a GAL “in any proceeding in which child abuse or neglect is alleged.” Section 452.423.1. Citing Black’s Law Dictionary (4th ed. 1968) definition of proceeding, relator contends that the mandatory language of the statute must be applied in any application, however made, to a court of justice.

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State Ex Rel. Scott v. Goeke
864 S.W.2d 411 (Missouri Court of Appeals, 1993)

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Bluebook (online)
864 S.W.2d 411, 1993 Mo. App. LEXIS 1715, 1993 WL 439382, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-scott-v-goeke-moctapp-1993.