X.P.E.L. by his next friend C.T. and C.T. Individually vs. J.L.L.
Appeal rom the Circuit Court of Washington County to Missouri Court of Appeals – Eastern District
Filed June 8, 2021
NO ED108748
Outcome: Trial Court Ruling Affirmed
Mother and Father are the parents of one child X.P.E.L. (hereinafter “minor child”). The parties never married and On May 21, 2018, Father petitioned for a declaration of paternity and custody over Child. Grandmother, Father’s mother, filed a petition seeking third-party custody under Section 452.375.5(5). Grandmother later abandoned her pursuit of third-party custody and supported awarding custody to Father. The Court determined paternity in Father’s favor and granted him sole legal and sole physical custody. Grandmother then amended her pleadings to seek visitation with her grandchild.
The trial court then conducted a bench trial on Grandmother’s Amended Petition for Visitation. Grandmother argued that she had met the Denial Requirement and a prong of RSMO 452.402.1 which allows for a Grandparent to petition for visitation with their grandchild. During her testimony, grandmother acknowledged that the trial court found Child resided with Father during the timeframe Grandmother alleged Child resided with her. Upon cross-examination, Grandmother acknowledged that the daycare records were correct and that Child did not reside with her during the relevant timeframe. Grandmother also acknowledged that she was awarded visitation with the minor child in the 90 days preceding the filing of her petition. Accordingly, the trial court denied Grandmother’s Amended Petition for Visitation.
Grandmother filed a two-point appeal arguing that the trial court: (1) misapplied the time frame of the denial period and (2) she argues that the trial court misapplied the law when it denied her Amended Petition for Visitation because she successfully intervened in Father’s paternity and custody action.
With respect to the first point: Although the trial court agreed that the wrong time frame was applied to the Denial Provision, 60 days rather than 90 days (due to a modification of the statute which went into effect while the case was pending), the Court found this error was irrelevant since Grandmother did not also successfully meet the requirements of RSMO 452.402.1.
With respect to the second point, the Appellate Opinion noted that RSMO 452.402.1 permits for a Grandparent to intervene and request visitation under the following circumstances: (1) the parents of the child have filed for a dissolution of marriage; (2) One parent of the child is deceased and the surviving parent denies reasonable visitation to a parent of the deceased parent of the child; or (3) The child has resided in the grandparent’s home for at least six months within the twenty-four month period immediately preceding the filing of the petition.
In the present case, Grandmother did not meet any of the requirements of RSMO 452.402.1 that would permit her to successfully petition for visitation with the grandchild. Additionally, the Appellate Court rejected grandmother’s argumenta that her successful intervention in Father’s paternity and custody case provides her with grounds to successfully petition for visitation with the minor child. The Appellate Court noted that if the legislature had intended paternity or custody to be grounds to intervene, the legislature would explicitly stated as such in the statute. Furthermore, the Appellate Opinion also emphasized that “it cannot statutory language where it does not exist.” The Appellate Opinion further emphasized that: “When the words of a statute are unambiguous, there is nothing to construe and [we] merely appl[y] the plain meaning of the statute.”
Trial Court Ruling Affirmed.
