Wilson v. Sullivan

922 S.W.2d 835, 1996 Mo. App. LEXIS 555, 1996 WL 148315
CourtMissouri Court of Appeals
DecidedApril 2, 1996
Docket67806 and 67860
StatusPublished
Cited by19 cases

This text of 922 S.W.2d 835 (Wilson v. Sullivan) 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
Wilson v. Sullivan, 922 S.W.2d 835, 1996 Mo. App. LEXIS 555, 1996 WL 148315 (Mo. Ct. App. 1996).

Opinions

DOWD, Judge.

Mother appeals the trial court’s order modifying the custody provisions of her 1989 dissolution decree and holding her in contempt of the . dissolution decree. Father cross-appeals from the order denying an award of reasonable attorney fees. We affirm in part, reverse in part, and reverse and remand in part.

The five-year marriage of mother and father was dissolved by decree on January 12, 1989. One child, R.S., was born of the marriage and the dissolution decree awarded general care, custody and control of the child to mother with father receiving temporary custody for specified periods. In March of 1993, father filed a motion requesting, inter alia, the custody provisions of the dissolution decree be modified to transfer custody of R.S. to father. Subsequently, both father and mother motioned to cite the opposing party in contempt. A hearing was held on all motions at which both parties presented witnesses and evidence.

The trial court entered an order with extensive findings of fact and conclusions of law. The court held a change of circumstances had occurred and, for the best interest of the child, modified the custody provisions of the dissolution decree by awarding father legal and primary physical custody with mother receiving temporary physical custody for specified periods. Mother was ordered to pay $465 per month in child support and one-half of medical expenses and the cost of private grammar school. The court also found mother in civil contempt for intentionally and willfully interfering with the exercise of husband’s rights to visitation and custody under the dissolution decree. Mother was ordered to pay father $10,000 as a fine; the amount could be lessened by mother’s attending counseling and performing various other acts to be monitored by a court social worker. The court did not award any attorney fees.

In her first point on appeal, mother asserts the trial court erred in modifying the dissolution decree. In reviewing the modification of a child custody provision of a dissolution decree, the decision of the trial court will be affirmed unless: (1) it is unsupported by substantial evidence; (2) it is against the weight of the evidence; or (3) it erroneously declares or applies the law. Humphrey v. Humphrey, 888 S.W.2d 342, 345 (Mo.App.E.D.1994).

Mother claims the order was erroneous because the transfer of custody “was not in the best interest of the child, but was to punish mother for actions which the court found to be inappropriate.” We need not detail the evidence of what the trial court termed the “reprehensible” behavior of the parties. Mother does not contest the trial court’s findings concerning her intentional and willful interference with father’s custodial rights under the dissolution decree or the pattern of behavior intended to disrupt R.S. and father’s relationship. “It is the policy of this state to encourage the continued interest, love and affection of both divorced parents for their children and to afford children ample opportunity for close contact with them. Facts showing an attempt by one parent to alienate a child from the other parent can form the basis for a modification of custody.” Jones v. Jones, 902 S.W.2d 363, 366 (Mo.App.E.D.1995). Although the court found father culpable of behavior alienating to the mother-child relationship, the court found mother’s pattern of behavior more egregious. Mother has not convinced us the trial court failed to act in the best interest of the child. The evidence showed mother repeatedly and intentionally acted in opposition to the best interest of R.S. by alienating the child from the benefits of continuing close [838]*838contacts with father. The trial court has attempted to fashion a new solution for protecting the interests of R.S. that accounts for the adverse circumstances created by the various degrees of contrary behavior by mother and father. We find no error in the court’s attempt and will not disturb the modification order. Point denied.

Mother further asserts “the court erred in admitting the unrestricted presentation of hearsay testimony of statements made by the child to the parties and third party witnesses.”

[T]he admission of improper evidence ... in a court-tried ease is scarcely ever held to be reversible error. The reason is that the court can presumably sort out the incompetent and the irrelevant and base his decision upon the competent and the relevant. Particularly in child custody eases is the evidence permitted to take a wide range, for the judge’s ear is alert to the overtones in the evidence and his eye to the coronas.... [T]he reviewing court will only in rare cases find cause for reversal in the admission of improper evidence ... so long ... [as] substantial competent evidence remains to support the judgment.

N.K.M. v. L.E.M., 606 S.W.2d 179, 187 (Mo.App.1980) (citations omitted). Mother has cited many instances of testimony that she alleges should have been inadmissible hearsay of R.S. However, she has not cited any factual finding of the court that relied on the alleged inadmissible hearsay and that was not supported by other substantial competent evidence, nor has our review of the record uncovered such a finding. Furthermore, a competent determination of a child’s best interest likely requires the court to assess the child’s state of mind. Out-of-court statements used not for the truth of the matter asserted but for the assessment of the speakers state of mind do not violate the hearsay rule. We find no indication that the statements were considered for any purpose other than evaluating the child’s state of mind. Point denied.

In her third point, mother appeals the trial court’s determination requiring mother to pay a portion of the private school and medical expenses. The trial court used the Form 14 guidelines to determine mother’s monthly child support payment of $465. In addition to this amount, the court also ordered mother to pay one-half of the private school and medical expenses without determining the Form 14 award by itself was unjust or inappropriate. “The requirement for a written or specific finding on the record that the Form 14 amount, after considering all relevant factors, is unjust or inappropriate is mandatory.” Citrin v. Citrin, 896 S.W.2d 88, 89-90 (Mo.App.E.D.1995) (citing Rule 88.01(e)).1 We, therefore, must reverse the trial court’s award of child support and remand for the court to reconsider the award in light of the requirements imposed by law. See id.

Next, mother appeals the $10,000 fine imposed on her by the court’s civil contempt order. She asserts the fine was impermissi-bly punitive in nature. We agree.

The purpose of civil contempt is to remedy, not punish. A fine for civil contempt is remedial and provides a coercive means of compelling compliance with a court order and/or of compensating complainant for losses sustained due to noncompliance. Generally, an outright fine, unrelated to actual damages, is not appropriate for civil contempt because it is not designed to cure but is intended to punish. A per diem fine that expires when the eontemnor complies with the order is proper.

Levis v. Markee,

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Wilson v. Sullivan
922 S.W.2d 835 (Missouri Court of Appeals, 1996)

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Bluebook (online)
922 S.W.2d 835, 1996 Mo. App. LEXIS 555, 1996 WL 148315, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilson-v-sullivan-moctapp-1996.