T.W. ex rel. R.W. v. T.H.

393 S.W.3d 144, 2013 WL 936207, 2013 Mo. App. LEXIS 302
CourtMissouri Court of Appeals
DecidedMarch 12, 2013
DocketNo. ED 97661
StatusPublished
Cited by15 cases

This text of 393 S.W.3d 144 (T.W. ex rel. R.W. v. T.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
T.W. ex rel. R.W. v. T.H., 393 S.W.3d 144, 2013 WL 936207, 2013 Mo. App. LEXIS 302 (Mo. Ct. App. 2013).

Opinion

LAWRENCE E. MOONEY, Presiding Judge.

The mother, T.H., appeals the judgment entered by the Circuit Court of St. Louis County awarding, inter alia, third-party visitation with the child, T.W., to the maternal grandmother, C.H., on alternating weekends, alternating holidays, and every Christmas Day. We hold that the amount of visitation awarded the maternal grandmother impinges on the mother’s constitutional rights. Furthermore, because the maternal grandmother neither pleaded nor presented a claim at trial for third-party visitation with the child pursuant to section 452.375.5(5) RSMo. (Supp.2012),1 we reverse the trial court’s judgment to the extent that it grants third-party visitation to the maternal grandmother. We affirm the trial court’s judgment in all other respects.

Facts

The mother and the father, R.W., had one child, T.W., who was age ten at the time of judgment. The parents never married, and the mother and the child lived with the maternal grandparents for most of the child’s life. The mother and the maternal grandmother had a difficult relationship, which completely disintegrated when the mother told the maternal grandmother in early 2009 that the she planned to move with the child from the maternal grandparents’ home. Both before and during the litigation, the Children’s Division received numerous hotline calls making wide-ranging allegations against the mother, and the maternal grandmother admitted to making some of the hotline calls. The Children’s Division assessments found that none of the allegations against the mother were supported.

[146]*146A two-and-a-half-year custody battle over the child ensued after the mother announced her intention to move. After a heated argument in early March 2009, the mother left the maternal grandparents’ home for the night at the suggestion of police. The next day, according to the mother, the father in concert with the maternal grandparents, removed the child from school without warning, apparently so that the mother could not retrieve the child. The mother sought police intervention without success to obtain the return of her child. The parties sought and obtained multiple orders of protection during the course of the litigation. In connection with the orders of protection, the parents agreed that the child would live with the maternal grandparents during the week, but agreed that nothing in the order would be deemed an admission of fact nor would it bind them in any other custody action. The mother testified that she consented to the child living with the maternal grandparents temporarily because the child had by that time already missed so much school, and she wanted him to return and finish the school year. In the meantime, the father filed in the Circuit Court of Franklin County a petition for declaration of paternity, child support, and order of sole physical and sole legal custody. The maternal grandmother filed a motion to dismiss or in the alternative to intervene in the paternity case, but did not file an accompanying pleading asserting any claim.

The Circuit Court of Franklin County transferred the paternity action to St. Louis County in August 2009. In December 2009, the maternal grandmother filed a petition for guardianship, with the father’s consent, in the Circuit Court of St. Louis County, alleging that the mother was unfit to care for the child. The Circuit Court of St. Louis County consolidated the paternity action and the maternal grandmother’s guardianship action, and allowed the maternal grandmother to intervene in the paternity action. At no time did the maternal grandmother file any pleading requesting any relief other than guardianship of the child. After several months of being kept from her child, the mother was finally able to obtain and exercise visitation with the child.

The trial of the paternity action and the maternal grandmother’s guardianship action spanned six days between February and June 2011. The father participated pro se early in the trial, but repeatedly failed to take court-ordered drug tests, and then disappeared altogether. At trial, the maternal grandmother sought to establish that the mother was unfit and unable to care for the child, and filed a proposed parenting plan that gave the maternal grandparents joint legal custody of the child, sole physical custody, including all holidays, and allowed the mother and father visitation on alternate weekends. At no time did the maternal grandmother assert a claim for third-party custody or visitation with the child pursuant to section 452.375.5(5) nor did she testify that she sought such third-party custody or visitation. Rather, the maternal grandmother’s only asserted claim was for guardianship of the child pursuant to section 475.030.4(2) RSMo. (2000) based on parental unfitness.

The trial court found no need existed for a third-party custodian for the child, and also denied the maternal grandmother’s guardianship petition, finding no credible evidence supported a conclusion that the mother was unfit, unable, or unwilling to parent the child. The court also observed that none of the allegations made to the Children’s Division against the mother were substantiated, nor was any credible evidence presented in the instant litigation to ■ support the allegations. The court [147]*147awarded the mother sole legal and sole physical custody of the child, and awarded the father supervised visitation upon the successful completion of a drug test. The court ordered the father to pay the mother $253 per month in child support. The court also awarded the guardian ad litem his outstanding fees of $16,750, and held the father and the maternal grandparents jointly and severally liable for the award.

The court then found, however, that “in the very unique circumstances of this family,” visitation with the maternal grandparents “in an amount far beyond the extent of time that is usually awarded to grandparents” under the grandparent-visitation statute was in the child’s best interest, “despite the actions taken by the [grandparents that denied [mjother custody of [her child] for such a long time.” The court awarded the maternal grandparents visitation with the child on alternate weekends, from Friday afternoon to Monday morning. In its amended judgment, the trial court clarified that only the maternal grandmother was awarded visitation, as opposed to both maternal grandparents, because she alone had filed the guardianship petition and she alone had been made a party to the paternity action. The court clarified that its award of visitation was one of third-party visitation pursuant to section 452.375.5(5), rather than pursuant to the grandparent-visitation statute found at section 452.402. The amended judgment stated that the statute permitted such an award to any other persons deemed suitable and able to provide an adequate and stable environment for the child if it is in the child’s best interest to render such an award. The trial court also entered a holiday-visitation schedule that called for the mother and maternal grandmother to alternate holidays and special days with the child, and to split Christmas Day every year. The mother appeals.

Discussion

In two points on appeal, the mother challenges the award of visitation to the maternal grandmother because the award improperly intrudes on the mother’s parental rights and because the maternal grandmother neither pleaded nor introduced at trial the issue of third-party visitation. The maternal grandmother has not filed a brief.

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Bluebook (online)
393 S.W.3d 144, 2013 WL 936207, 2013 Mo. App. LEXIS 302, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tw-ex-rel-rw-v-th-moctapp-2013.