Wills v. Wills

90 S.W.3d 126, 2002 Mo. App. LEXIS 1869, 2002 WL 31055110
CourtMissouri Court of Appeals
DecidedSeptember 17, 2002
DocketNos. WD 59604, WD 59648
StatusPublished
Cited by3 cases

This text of 90 S.W.3d 126 (Wills v. Wills) 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
Wills v. Wills, 90 S.W.3d 126, 2002 Mo. App. LEXIS 1869, 2002 WL 31055110 (Mo. Ct. App. 2002).

Opinion

ROBERT G. ULRICH, J.

Dwane A. Wills, II (Father) appeals from the judgment of the trial court modifying child custody and visitation. Father raises four points on appeal. Julie R. Wills (Whitlock)(Mother) cross-appeals raising one point on appeal. Only one of Father’s points is considered in this opinion. The remaining points on appeal are addressed by memorandum opinion, which is provided to the parties and the trial court. Rule 84.16(b). The judgment of the trial court is affirmed.

Facts

The marriage of Father and Mother was dissolved on December 11, 1997. Two children were born of the marriage: Dwane Allen Wills, III, born June 17, 1987, and Whitney Olivia Wills, born June 2,1992.

Pursuant to the parties’ separation and property settlement agreement, which was approved by the trial court and was fully incorporated into the decree of dissolution on December 11, 1997, Father was granted sole legal custody of the children and was designated as the primary physical custodian. Mother was granted reasonable and specific visitation with certain conditions. Specifically, Mother was not to consume [128]*128alcohol at any time or prior to or during any period of visitation, she was to submit to random urinalysis for two years after the entry of the decree, and she was to attend 12-step meetings of Alcoholics Anonymous weekly. Any positive urinalysis would result in Mother’s visitation being supervised by a responsible adult selected by the Guardian Ad Litem for six months subject to random alcohol testing. After two years, if Mother had all negative alcohol and drug screens, all visitation conditions would be terminated.

Within one month of the dissolution decree, Mother tested positive for alcohol. By January 1998, she tested positive a second time and her visitation was supervised. Mother’s mother, Doris Whitlock (Grandmother), was named as the supervisor.

On April 20, 1998, Mother filed an application and request for order to show cause why Father should not be held in contempt of court and for attorney’s fees alleging, inter alia, that Father was not complying with the visitation schedule articulated in the dissolution and judgment entry. Mother filed a second application and request for order to show cause why Father should not be held in contempt of court and for attorney’s fees on May 18, 1998. In that application, Mother alleged that Father failed to transfer personal property and to refinance debt as provided in the dissolution and judgment entry. Two orders to show cause were entered pursuant to the applications.

On October 19, 1998, Father filed a notice to take the deposition of Mother’s attorney, Katharine S. Shepherd. The trial court denied the motion. Grandmother filed a motion to intervene on November 10, 1998, and was granted the right to intervene. Thereafter, she filed a motion to modify the judgment and decree of dissolution requesting the trial court to grant her regular and liberal grandparent visitation. The trial court entered an order on December 22, 1998, that (1) granted temporary visitation to Grandmother of not less than one day ever other week, and (2) granted temporary supervised visitation to Mother.

On May 24, 1999, Mother filed a motion to modify the dissolution judgment as to child custody, visitation, and support or, in the alternative, to remove or rescind all visitation restrictions on her. She requested joint legal custody and primary physical custody of the children. Approximately one year later on April 20, 2000, Father filed a motion for award of attorney’s fees alleging that Mother failed to offer to enter into non-binding mediation before filing her applications for orders to show cause in April and May 1998 as required by the parties’ separation and property settlement agreement incorporated into the dissolution judgment.

Hearings on the merits of Grandmother’s and Mother’s motions to modify were held in October and December 2000. The trial court entered its judgment on December 29, 2000. It found that a change in circumstances so substantial and continuing had occurred to make a modification of the dissolution judgment necessary to serve the best interests of the children. It awarded Father sole legal and primary physical custody of the children with visitation to Mother to be supervised by Grandmother. The court also placed special conditions on Mother’s visitation including that she not consume alcohol or illegal drugs any time including prior to or during any period of visitation, that she submit to random urinalysis tests, and that she attend 12-step meetings of Alcoholics Anonymous weekly. The court further ordered that after six months of negative alcohol and drug screens, all restrictive conditions of visitation, including supervision of visitation, shall be terminated. Ad[129]*129ditionally, the trial court ordered that each party pay his own attorney’s fees. Finally, the court ordered that Grandmother receive grandparent visitation in her capacity as supervisor of Mother’s visitation and that in the event that she is unavailable, unwilling, or unable to supervise or that Mother is unavailable, unwilling, or unable to exercise her visitation, Grandmother is to receive no less than one weekend per month of visitation with the children.

This appeal by Father and cross-appeal by Mother followed.

Point on Appeal

In his only point on appeal addressed in this opinion, Father contends that the trial court erred in ordering that the parenting plan and dissolution decree be modified to allow Grandmother visitation. Father essentially argues that (1) Grandmother was not entitled to receive visitation under section 452.402, RSMo 2000, because she was never denied visitation, and (2) the amount of visitation awarded to Grandmother was excessive.

The judgment of the trial court will be affirmed on appeal unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Ray v. Hannon, 14 S.W.3d 270, 272 (Mo.App. W.D.2000). In matters pertaining to visitation rights, an appellate court gives deference to the trial court’s assessment of what serves the best interests of the child. Simpson v. Buck, 971 S.W.2d 856, 858 (Mo.App. W.D.1998).

Section 452.402, which governs grandparent visitation rights, provides in pertinent part:

1. The court may grant reasonable visitation rights to the grandparents of the child and issue any necessary orders to enforce the decree. The court may grant grandparent visitation when:
(1) The parents of the child have filed for a dissolution of their marriage. A grandparent shall have the right to intervene in any dissolution action solely on the issue of visitation rights. Grandparents shall also have the right to file a motion to modify the original decree of dissolution to seek visitation rights when such rights have been denied to them;
(2) One parent of the child is deceased and the surviving parent denies reasonable visitation rights;
(3) A grandparent is unreasonably denied visitation with the child for a period exceeding ninety days; or

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Bluebook (online)
90 S.W.3d 126, 2002 Mo. App. LEXIS 1869, 2002 WL 31055110, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wills-v-wills-moctapp-2002.