Christina Francis v. Daniel Wieland

Ms. Christina Francis, Mother of the 11-year-old child subject to the motion to

modify custody at the core of this dispute, appeals a circuit court judgment grantin g

joint legal and joint physical custody to her and Mr. Daniel Wieland, the child’s

biological Father, and otherwise establishing a parenting plan and ordering child

support, and requiring the parties to pay their own counsel fees. She contends that joint

legal custody is not justified in light of the court’s finding that the parents’ relationship

is toxic, the court did not make appropriate findings of fact and failed to find that joint

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legal custody was in the child’s best interests, the guardian ad lite m failed to properly

discharge her duties and should have been replaced, and the court improperly failed to

recuse itself for bias. We affirm.

Mother’s attorneys, Mr. Patrick Michael Davis, Ms. Mandee Rowen Pingel, and

Davis and Pingel Associates, appeal an order requiring that they pay $75,000 as a

sanction for communicating with Father ’s expert witnesses and abusing the court with,

among other matters, a request for more than 2,000 findings of fact. They argue that

the circuit court violated their due process rights, sanctions were not justified in the

absence of bad faith, the sanction imposed was punitive, and the circuit court failed to

afford them the procedural protections required under Rule 36.01. We reverse and

remand for further proceedings.

This case originated in St. Louis County where Mother’s husband, Mr. Greg

Francis, had filed for divorce in 2009. Father was joined as a third -party respondent

because Mother had given birth in 2005 to his child while separated from but still

legally married to Mr. Francis. After the St. Louis circuit court issued a paternity and

custody judgment as to their child in June 2011 and Father sought to modify custody,

the case was transferred to Clay County, where Mother had moved. The St. Louis court

had ordered joint physical custody and Mother’s sole legal custody, and Father ’s

motion to modify requested sole physical and sole legal custody.

Mother lives with their child in Liberty in a home she shares with Mr. Edgar

Bozarth, their son, and a son from the Francis union. Mr. Bozarth is legally separated

from his spouse; he and Mother are engaged to be married. Father lives in Bunceton,

Missouri, in Cooper County on a 2,000 -acre family farm; he was married in 2010 to

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Ms. Angela Wieland. The child has a half sister who lives with her father, Mr. Francis.

The Davis Pingell law firm undertook Mother’s representation in August 2014, or about

a year after the Clay County court assumed jurisdiction. 1

Mother filed a counter-motion to modify custody in December 2014, seeking

sole physical and sole legal custody. Father’s parenting plan, filed in April 2015 before

the first hearing, called for joint physical custody and joint legal custody, with the child

to reside in his home. Father filed a motion for sanctions the day before trial began,

and the circuit court indicated that it would hold a hearing on it, but never did so. 2

Following months of contentious pre-trial proceedings, generating thousands of

pages of filed documents, and five days of trial, the circuit court determined that

circumstances had sufficiently changed to warrant altering the original custody order

from Mother’s sole legal custody to joint legal custody, with the child’s residence to

remain in Mother’s home. The court also determin ed that the financial circumstances

had not changed to an extent that would warrant a departure from the $916 monthly

child-support award to Mother in 2011.

The circuit court further issued a sanctions order against Mother’s lawyers and

firm. The order granted Father ’s motion for sanctions that was based primarily on

contacts by Mother’s counsel with Dr. Lori Schwartz, who was Father ’s expert and the

psychologist who had conducted Mother ’s independent psychiatric evaluation. One

1 Additional factual matters as to the child-custody judgment appear in the legal analysis below.

2 In this regard, the court stated,

I’m a little concerned about the allegations made in the motion for sanctions. .

. . So I’m not going to deny it and I’m not going to grant it at this point in time. But

at some point in time if somebody wants to bring this up again, we will have a hearin g

after I receive all of the evidence in this case, and if sanctions need to be imposed,

they’ll be imposed.

4

element of that contact was a 44 page letter from Mother’s counsel to Dr. Schwartz,

suggesting that the expert amend her evaluation due to 125 alleged ambiguities and

factual inaccuracies. The court cited Mother’s counsel not only for contact with Dr.

Schwartz, but also with Dr. Aileen Utley, a psychologist who was another of Father ’s

expert witnesses and had conducted the child’s independent psychiatric evaluation, and

for additional litigation actions purportedly undertaken in “bad faith,” including

submitting more than 2,000 recommended findings of fact, a number of which were

based on evidence not introduced at trial, and were incomplete sentences, irrelevant,

or left blank. Thereafter, Mother filed a motion for mistrial and for the court to set

aside its judgment, including a request for an order of recusal and the assignment of a

new judge. Mother ’s counsel filed a motion for reconsideration of the sanctions

judgment, including a request that the court disqualify itself for bias. 3 The court denied

all post-trial motions during a March 2016 hearing, and Mother and her at torneys and

their firm filed these appeals.

Legal Analysis

Child-Custody Modification Judgment

We sustain the trial court’s judgment in a child -custody dispute “if substantial

evidence supports the order, if the judgment is not against the weight of the evidence,

and if the decision does not erroneously declare or apply the law.” M.L.H. by D.R.H.

v. W.H.P., 831 S.W.2d 677, 682 (Mo. App. W.D. 1992). “Great deference is bestowed

upon the trial judge to determine credibility. Appellate courts view the evidence, and

3 Mother’s counsel also sought to intervene, but when the circuit court observed that Mother

would require new counsel if the motion were sustained, counsel ceased objecting to the court’s denial

of that motion.

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any reasonable inference from the evidence, in the light most favorable to the decree,

disregarding all contrary evidence.” Id.

Mother’s first point on appeal challenges the circuit court’s exercise of

discretion in ordering joint legal custody and its application of law in “delegating legal

authority to psychologists and doctors.” She c ontends that changed circumstances were

not shown since 2011 to indicate that Father was capable of working with mother in

making joint decisions and that Missouri law does not allow parental or judicial

authority to be delegated to third parties.4 To support its modification judgment, the

circuit court specifically found the following changes in circumstances:

A. The minor child misses a concerning amount of school;

B. The child has been seen by several different counselors for a number of

different reasons, has been in and out of mental health facilities and

received a number of mental health diagnoses;

C. The relationship between [Mother] and [Father] has deteriorated to its

current, toxic state;

D. The minor child is often present for arguments concerning his he althcare

and treatment between the parties, which is not in his best interest;

E. At the time of entry of the prior judgment the minor child was 5 years old.

As a ten-year-old, he needs more time with [Father] and is better able to

travel the distance between the parties’ residences and able to spend more

consecutive nights away from e ither parent; . . .

4 Father characterizes this point and Mother’s fourth point as multifarious in violation of Rule

84.04 because they challenge more than a single trial -court ruling. As such, he argues that they

preserve nothing for our review. See State v. Garrison, 276 S.W.3d 372, 378 n.4 (Mo. App. S.D. 2009)

(stating, “Generally, multifarious points preserve nothing for appellate review and are ordinarily

subject to dismissal”); see also State v. Leonard, 490 S.W.3d 730, 736 (Mo. App. W.D. 2016) (quoting

Garrison). Where an appellant’s argument is “readily understandable,” however, we may elect “to

exercise our discretion to review the merits of the arguments set forth in the point relied on.” State v.

Robinson, 454 S.W.3d 428, 437 n.6 (Mo. App. W.D. 2015). Because Mother fully develops each part

of points one and four, we consider all issues raised in her appeal on the merits.

6

According to Mother, the St. Louis court supported its award of sole legal custody to

her by finding in 2011 that “the parents did not demonstrate the willingness and ability

to share the rights and responsibilities of raising their c hild.” Indeed, the court found

that “they disagree as to [the child’s] health care; his preschool placement; and the

choice of his religious upbringing.” The court, however, also found that Mother had

been the residential and more active parent in making such decisions, “and Father never

objected to any of them.” Further, “Mother’s decisions during the pendency of this

litigation as to the education and mental and physical health care for [the child] have

been appropriate.”

In contrast, while the Clay County court found that the parties had

“demonstrated no ability to communicate on any issues” and that their “animosity . . .

rises to a level seldom seen, even in this courtroom,” it faulted Mother for choosing a

therapist for the child with no appointment time available outside of school hours and

for continuing the child in weekly therapy despite his obvious progress in dealing with

his diagnosed attention deficit hyperactivity disorder and post -traumatic stress

syndrome. Father ’s lack of consent to Mother’s decisions is implicit, of course, in his

filing of a motion to modify custody. The court also found that even Mother’s expert

witness Dr. Gerald Gentry, who had conducted an independent psychiatric evaluation

of Father, had recommended that Father become more involved in the child’s mental -

health treatment. The Clay County court further determined that both parents had

demonstrated an ability and willingness to perform their functions as mother and father,

but were unable “to perform those functions together.” The court viewed the parenting

plan as obviating the need for the parents to work together.

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In that parenting plan, in addition to detailing parenting time and the specific

cooperative behavior required on the pa rents’ part at the risk of losing joint custody,

the court designated certain professionals and facilities for the child’s physical, dental,

and mental-health care. All had previously been involved in his care in one respect or

another and were conveniently located. The court decided to take a middle ground as

to the child’s mental-health care, rejecting Mother’s position that extensive care was

required and Father ’s position that little or no care was required. Because the child’s

therapist did not have hours other than during the school day and had been involved in

the litigation to an extent the court deemed detrimental to the child, the court ordered

the parties to choose a new therapist from the list of those included in the child’s

insurance plan, and if they were unable to agree, to follow Dr. Utley’s recommendation.

If a change in psychologist were required and the parents could not reach an agreement,

they would be required to “follow” another designated professional’s referral. The

judgment further requires deference to the medical professionals treating the child. The

court was particularly concerned about evidence showing that the parents had disagreed

with each other and with medical professionals in the child’s presence, and the

parenting plan includes directives requiring them to cease this behavior or lose joint

custody.

Mother cites case law espousing the principle that joint legal custody cannot be

awarded to the parents where there is “no basis for concluding [the parents could] work

together in the exercise of ‘decision-making rights, responsibilities, and authority.’”

Shockley v. Shockley, 882 S.W.2d 775, 776 (Mo. App. E.D. 1994) (quoting Lipe v. Lipe,

743 S.W.2d 601, 603 (Mo. App. E.D. 1988)). Still, despite ample evidence of “pers onal

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acrimony between the parents,” if the evidence supports a finding that the “parties were

. . . emotionally equipped to cast those feelings aside when making decisions

concerning the child’s upbringing,” joint legal custody may be appropriate. Shockley,

883 S.W.2d at 776 (discussing Luther v. Vogel, 863 S.W.2d 902, 904 (Mo. App. E.D.

1993)). Here, it was clear that the parents had strong and differing opinions about the

child’s upbringing and care and had clashed over their differences since the June 2011

judgment. Father, however, had testified that, following the months leading to trial, he

now believed that joint legal custody was in the child’s best interest and he was willing

to work with Mother in making decisions on the child’s behalf. 5 In light of his previous

concerns over any mental-health care for the child, Father ’s agreement to cooperate in

choosing a new therapist represented a particularly compelling sign that he was

emotionally equipped to cast aside his acrimonious feelings, particula rly regarding this

issue. He also understood that the court proceedings had caused the child anxiety, and,

to avoid creating more anxiety, he wanted “to be able to work with [Mother] and try to

resolve the issue,” resorting to mediation if necessary as hi s parenting plan proposed.

Moreover, the guardian ad litem’s parenting plan also called for a joint legal and

physical custody award. Most of the decisions about the child’s schooling, residence,

health care, and other activities have already been made u nder the parenting plan, and

many future decisions will require the input of both parents with restrictions on how

5 Note also that Father has not sought to appeal the circuit court’s judgme nt, apparently

acquiescing in its decision to place the child for residential purposes with Mother, so that he can

continue in his current school system where he is thriving, surrounded by the friends he has made in

Liberty rather than in Bunceton. That Father will have equal input into significant decisions affecting

the child’s life is a change from Mother’s sole decision -making authority and will give Father further

incentive to cooperate or he will risk losing that role in his son’s life. The court ev idently recognized

that Father’s evolving effort to compromise was a positive development and further supports its joint

legal custody ruling.

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they go about it. The court urged the parties “to understand, accept and value the

relationship the minor child has with the other parent as being important and vital to

the minor child.” The court clearly had the child’s best interest at the forefront of its

consideration, and its judgment, based on evidence that the child was emotionally

attached to both parents, will protect that interest. By carefully crafting the parenting

plan to remove certain flashpoints from consideration, the court also gave the parents

a way to avoid returning to court, a situation that Dr. Utley had found contributed to

any lingering anxiety for the child.

In light of the deference we give to the trial court’s evidentiary findings, we

cannot conclude that the evidence was insufficient to support its joint legal custody

award. See Aurich v. Aurich, 110 S.W.3d 907, 911 (Mo. App. W.D. 2003) (stating,

“[T]his court gives the trial court ‘greater deference in child custody matters than in

other matters’”). This judgment also comports with Missouri’s stated public policy

encouraging “parents to participate in decisions affecting the health, education and

welfare of their children.” § 452.375.4.6

Mother urges this Court to find that the circuit court’s designation of certain

professionals to care for the child and to make recommendations if the parents could

not agree on a replacement professional is the equivalent of delegating judicial

authority because the plan permits others to resolve parental disputes. She is especially

concerned that one of the designated professionals, who is also a designated “referree,”

6 Statutory references are to RSMo 2000, as updated by the 2012 Cum. Supp., unless otherwise

indicated.

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was one of Father ’s expert witnesses.7 She does not cite any authority relating to

medical or mental-health professionals making recommendations as to other

professionals or care as a way to mediate parental disputes, relying instead on cases

concerning a court’s use of professionals to issue visitation and cu stody directives the

parents were required to obey, which is “an impermissible delegation of judicial

authority.” See M.F.M. v. J.O.M., 889 S.W.2d 944, 956-57 (Mo. App. W.D. 1995)

(noting that courts derive their power to determine custody by statute and must act in

the child’s best interest). Here, the guidance and recommendations of the designated

professionals concerned mental health or medical treatment and advice and had nothing

to do with altering custody arrangements. Any further disagreements or lack of

cooperation would have consequences involving judicial intervention to change

custody; thus the court did not impermissibly delegate its judicial authority. This point

is denied.

Mother’s second point challenges the circuit court’s failure to iss ue findings of

fact and conclusions of law as she claims is required under Rule 88.01 and subsections

6, 9, and 13 of section 452.375. Rule 88.01 pertains to written findings required under

certain circumstances when a court determines the amount of child support.8

Subsection 6 requires written findings when the parties cannot agree on a custodial

7 This witness was Dr. Utley, who had conducted the child’s independent psychiatric

evaluation. The court was entitled to name a specific counselor as part of the parenting plan. See e.g.,

Beshers v. Beshers, 433 S.W.3d 498, 510 (Mo. App. S.D. 2014) (finding that trial court did not

impermissibly delegate authority by requiring Mother and child to begin seeing a designated counselor

who could expand the unsupervised visits between the two within sixty days of the first counseling

visit but had no authority to otherwise alter the custody arrangement set forth in the parenting plan).

8 Rule references are to the Missouri Supreme Court Rules of Civil Procedure (2011), unless

otherwise indicated.

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arrangement or the court rejects a proposed custodial arrangement. § 452.375.6.

Subsection 9 requires a specific written parenting plan, and subsection 13 req uires

written findings of fact if the court determines that domestic violence or abuse has

occurred. § 452.375.9 & .13.

Mother’s point asserts that Rule 88.01 requires findings of fact and she made

properly requested findings of fact and conclusions of l aw, but she discusses Rules

73.01 and 78.07(c) in arguing the point. Rule 84.04(e) limits argument to those errors

included in the points relied on. Because Mother does not explain how Rule 88.01

required the circuit court to address the more than 2,000 findings of fact she submitted,

most of which had nothing to do with child support, we do not consider this aspect of

the point further other than to note that the circuit court did make findings to justify

rejecting both parties’ Form 14 and adopting its own Form 14 to support its childsupport

order.

As for the custodial award the court made, it set forth the statutory custody

factors and analyzed the evidence in light of each factor at some length. § 452.375.2. 9

The court specifically found that (1) t he parents’ wishes favored neither party; (2) both

parents “have the ability and willingness to perform their functions as Mom and Dad,”

accordingly this factor favored neither party; (3) the child has positive relationships

with parents, siblings, and others who may significantly affect his interests including

Mother’s fiancé, and his half brothers, as well as Father’s spouse and extended family,

thus this factor favored neither party; (4) the parenting plan itself required and would

9 Nothing in this statute requires a court deciding a child-custody matter to address, adopt, or

reject any of the proposed findings of fact submitted by a party, such as the 2,265 “findings of fact”

covering 260 pages in the legal record submitted by Mother.

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require frequent, continuing, and meaningful contact with both parents, so this factor

favored neither party; (5) the child was well adjusted to and doing well in his home,

school, and community, thus favoring Mother, particularly as to schooling; (6) the

mental and physical health of all individuals slightly favored the Mother, although the

court expressed its concern that the child’s level of counseling was not declining

“despite testimony that the child is progressing,” and the court rejected the psychiatric

evaluations of both Mother and Father, because Mother did not fully cooperate, and it

did not find Father’s evaluation credible; (7) no evidence indicated that either party

intended to relocate, thus favoring neither party; and (8) as it had received no credible

evidence as to the child’s wishes, this factor favored neither party. Accordingly, the

circuit court complied in every respect with section 472.375.6.

Mother’s parenting-plan challenge has not been preserved for appeal because

she did not challenge the form of the judgment as to the parenting plan, including an

alleged failure to make statutorily required findings, in a motion to amend the judgment

as required by Rule 78.07(c).10 Still, under subsection 452.375.9, the circuit court did,

in fact, include the statutorily required written parenting plan in its judgment. And

under subsection 452.475.13, the court did not find domestic violence or abuse, so no

written findings were required as to any alleged abuse.

10 Before the circuit court entered its judgment of modification, Mother did file objections to

the form and content of the proposed “parenting judgment” that Father submitted to the circuit court.

This was not, however, a motion to amend the judgment. Mother’s motion for mistrial and for the

court to reconsider or amend its modification judgment includes a statement that the circuit court was

required to issue findings as to why it had rejected both Mother’s and Father’s parenting plans under

section 452.375.6. Subsection 6, however, pertains to the court’s rejection of a proposed custodial

arrangement and not to the written parenting plan, which is addressed in subsection 9. § 452.375.9.

13

On balance, the circuit court reviewed the relevant testimony and evidence and

made the findings required under the law, thus giving this Court a sufficient basis on

which to determine, after reviewing the whole record, that its custody decision was in

the child’s best interest. This point is denied.

Mother’s third point asserts that the circuit court “abused its discretion and

erroneously declared and applied the law in failing to hold the guardian ad litem

accountable for faithfully discharging her duti es.” She argues that the guardian ad

litem failed to properly represent the child’s interests and that this failure is cause for

a mistrial and a new hearing.11 Because Mother neither filed a motion to disqualify the

guardian ad litem within the time required by section 452.423.1 (within ten days of

appointment), nor raised the issue of the guardian ad litem’s discharge of her duties at

any time before judgment in the case, it has not been preserved for our review. Francka

v. Francka, 951 S.W.2d 685, 692 (Mo. App. S.D. 1997) (refusing to consider father ’s

claim that trial court failed to properly monitor the guardian ad litem’s performance

because father failed to object before or during trial). And, even if we were to find the

issue preserved and of merit, the guardian ad litem’s disqualification at this late date

11 Mother first raised these issues in her post -trial motion for mistrial and complains that the

guardian ad litem had one or more ex parte communications with the circuit court, including sending

the court an electronic version of her parenting plan and providing edits to a draft of the court’s

sanctions judgment. Mother also faults the guardian ad litem for failing to (1) meet with the child after

conducting a number of initial interviews, (2) adequately review all the relevant evidence, (3) prevent

certain evidence from being introduced or heard at trial , (4) protect the child’s privacy by not

requesting a closed courtroom or protective order, (5) maintain contact with all relevant caretakers

throughout the proceedings to ensure the child’s needs were met , (6) explain the court proceedings to

the child, and (7) recommend certain of the child’s preferences in her proposed parenting plan. Mother

also contends that her due process rights were violated because the court refused to allow her to make

extensive discovery requests of the guardian ad litem. During oral argument, Mother raised alleged

post-judgment conduct as further support for this point. We decline the implicit invitation to serve as

factfinders and will not consider an unsupported fact raised for the first time at argument. Knight v.

Con-Agra Foods, Inc., 476 S.W.3d 355, 359 n.3 (Mo. App. W.D. 2015) (refusing to address issues

raised for the first time on appeal).

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“does not mean that the work of the guardian prior to disqualification is necessarily

wasted.” Harrison v. King, 7 S.W.3d 558, 563 (Mo. App. E.D. 1999) (finding that the

trial court properly considered the guardian ad litem’s recommendations before

disqualification).12 Accordingly, starting the litigation over with a new guardian ad

litem would not be required. This point is denied.

Mother’s fourth and final point claims that the circuit court’s alleged bias and

actions required either recusal or a hearing before an independent judge to determine

if recusal was required. She argues that the circuit court abused its discretion and

erroneously declared and applied the law by failing to recu se itself from presiding over

the case due to exhibiting bias sufficient to suggest a lack of impartiality and by

engaging in ex parte communications. She does not provide this Court with a standard

of review, and we could deny it on that basis for failur e to comply with Rule 84.04.13

In the exercise of our discretion, however, we will address it on the merits. Mother

first sought the court’s disqualification and recusal as to the modification judgment in

a motion for mistrial and to reconsider or amend t he judgment after the circuit court

entered its written judgment. The circuit court orally ruled on the motion as to judicial

bias on the basis of the motion without conducting a hearing. It was apparently of the

view that the motion should have been submitted before evidence was presented. It

also pointed out that both parties had engaged in ex parte communications with the

court.

12 A review of the record shows that the guardian ad litem’s involvement in the case was

extensive, thorough, and appropriate, and no objections were made at any time during the proceedings

when she requested payments for her services.

13 We would also note that Rule 84.04(d)(5) limits the number of case citations for each point

to four, a number that Mother consistently exceeds in her briefing.

15

The Missouri Supreme Court has considered the standards for recusal and

appellate court review as follows:

Rule 2.211(A) sets the standard for when a judge should recuse in a

proceeding [and] provides that “[a] judge shall recuse himself or herself

in any proceeding in which the judge’s impartiality might reasonably be

questioned.” This includes situations where “[t]he judge has a personal

bias or prejudice concerning a party.”

. . .

When the judge appears to be biased by “an extrajudicial source [that]

results in an opinion on the merits on some basis other than what the judge

has learned from the judge’s participation in a case,” this Court may

require disqualification.

When evaluating facts in support of disqualification, this Court considers

the entire record. Though generally the trial court’s judgment as to

recusal is reviewed for an abuse of discretion, in cases in which a trial

court may not have considered certain facts relevant to disqualification,

an appellate court should determine whether those facts are sufficient to

require recusal or, at a minimum, a hearing on the record.

. . .

It is presumed that a judge acts with honesty and integrity and will not

preside over a hearing in which the judge cannot be impartial.

. . .

[The movant’s] burden does not require a movant to prove that the . . .

court was actually biased or prejudiced but rather that a reasonabl e person

would have factual grounds to find and appearance of impropriety and

doubt the impartiality of the court.

Anderson v. State, 402 S.W.3d 86, 91-92 & n.1 (Mo. banc 2013) (citations omitted)

(observing in a footnote that best practice is for a circu it judge to have another judge

preside over any hearing in which a motion for that judge’s recusal or disqualification

is to be decided).

16

The bases for Mother’s assertion of judicial bias against her are as follows (1)

the circuit court expressed its concern from the start of trial over her attorneys’ actions

on the basis of Father’s motion for sanctions that was not filed in compliance with

procedural rules or her due process rights, thus making it clear that the court had

already made a decision on the motion;14 (2) the circuit court made comments and used

a condescending tone during trial indicating its “blatant distaste f or Mother ’s counsel”;

(3) the circuit court appeared to rely on extrajudicial information about the magnitude

of counsel’s fees in ruling on Father’s motion for sanctions; (4) Father ’s counsel,

required by the circuit court to submit proposed judgments of modification and

sanctions after the court issued its oral ruling, submitted those judgments by email

without copying Mother’s counsel, although this omission was rectified; (5) the

guardian ad litem also submitted certain materials to the circuit court, copied to

counsel, by email, while the court refused to accept emailed correspondence or

documents from Mother ’s counsel; (6) despite a lack of case law on the issue, the circuit

court based its sanctions ruling on direct, substantive contacts Mother ’s counsel had

with Father ’s expert witnesses, while not sanctioning Father’s counsel for doing the

same thing; (7) the circuit court received email communications from Father ’s counsel

and the guardian ad litem in violation of local court rule without placing them in the

court file to make them available to Mother ’s counsel; (8) the circuit court refused to

hear evidence about all of the time, effort and attorney fees incurred by Mother and her

counsel to prepare to respond to allegations in Father ’s 2012 motion to modify that

14 Mother claims that the motion for sanctions did not comply with Rule 55.03(d), which

involves representations, such as pleadings and other filings, made to the court. Because the motion

was based on contacts that Mother’s counsel made with one of Father’ s expert witnesses, this rule does

not apply.

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were subsequently rendered moot, i.e., abandoned, by Father’s proposed custodial

arrangement and parenting plan file d on the eve of trial, the court made misstatements

about Mother ’s attorney fee during its oral pronouncement of judgment, and then the

court changed the basis for making its sanctions ruling between the time of its oral

pronouncement of judgment and its written judgment; (9) the court erroneously stated

that a motion to disqualify must be filed before evidence was presented, despite

Mother’s inability to learn about ex parte communications until after the court’s oral

pronouncement of judgment; and (10) the circuit court overruled Mother’s objections

that Father ’s experts testfied “outside the parameters of either, the discovery

disclosures or the testimony at the experts’ depositions,” stating that Mother could put

on rebuttal testimony, but then would not allow rebuttal evidence.

We agree with Mother that a motion to disqualify for bias and prejudice is not

limited to a pre-trial application, but we do not believe that any of the cited instances

of purportedly prejudicial conduct rise to a level requiring recusal. See In re Marriage

of Burroughs, 691 S.W.2d 470, 473 (Mo. App. E.D. 1985) (stating that a party may

assert trial court bias and have that issue considered on appeal whether its motion has

been untimely filed before trial or during trial, after the evidence has been completed,

or where no request has been made for a change of judge). Further, we will not

consider, with respect to Mother ’s points on appeal pertaining to the modification

judgment, any argument going to the propriety or impropriety of the circuit court’s

actions relating to the sanctions judgment, which solely affects counsel. The sanctions

judgment is considered separately below.

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“‘[E]xpressions of impatience, dissatisfaction, annoyance, and even anger, th at

are within the bounds of what imperfect men and women . . . sometimes display [do

not create bias]. A judge’s ordinary efforts at courtroom administration—even a stern

and short-tempered judge’s ordinary efforts at courtroom administration—remain

immune.’” McPherson v. U.S. Physicians Mut. Risk Retention Group , 99 S.W.3d 462,

487 (Mo. App. W.D. 2003). In the criminal context, “[a]lleged animosity toward a

criminal defendant’s attorney may, but does not necessarily, warrant a judge’s

disqualification.” State v. White, 462 S.W.3d 915, 918-19 (Mo. App. W.D. 2015).

Reviewing the entire proceeding, we are not convinced that a few isolated instances of

impatience or anger show that the circuit court appeared biased against Mother. Nor

did counsel preserve for our review any non-verbal indicia of alleged animosity. Id. at

920 (observing that such communications “may be difficult to discern from a trial

transcript” and that counsel “did not at any time seek to preserve on the record that the

judge had displayed an angry demeanor toward him”). The court expressed the same

level of impatience at times with Father ’s counsel and sustained many objections

against her. That the court referred at times to the sanctions motion, which was based

on counsel’s conduct, does not indicate that it had prejudged the custody issue on the

merits due to bias against Mother.

Ex parte communications in the form of email submissions to the court, while

not to be encouraged especially when opposing counsel is not copied , do not evidence

bias against the party that does not submit them or is not allowed to submit them.

Where the ex parte communication is simply part of the administration of a case, that

is, the submission of a proposed judgment or parenting plan, and does not inv olve

19

extended meetings and conversations about the case merits, such communication would

not appear to the reasonable layman to “indicate the hardening of the judicial mind”

against a party. McPherson 99 S.W.3d at 489. Court rulings about evidentiary iss ues

are fully within judicial discretion, and we do not find that discretion abused or bias

indicated where the court seeks to limit testimony to the issues and evidence actually

before it and is sufficiently informed at the conclusion of direct evidence i n the case to

render its ruling. The legal record comprises nearly 5,000 pages. The case was pending

before the Clay County court for less than three years before it was decided, yet the

docket sheet consumes 23 pages. The court conducted five days of h earings on the

merits. At issue is a motion for modification of custody involving one child. Any

efforts the circuit court made to streamline the proceedings are more reflective of

common sense and concern for judicial and client resources than they are of bias.15 As

to whether the court made its custody determination on the basis of anything other than

the record, Mother does not indicate in what way the modification judgment reflects a

reliance on extrajudicial sources of information about either parent or the child. This

point is denied.

Because we find no merit to Mother ’s challenge to the circuit court’s ruling on

the motion for modification, we affirm the modification judgment.

Sanctions Judgment

Regarding the appeal that Mother ’s attorneys have filed fr om the circuit-court’s

sanctions judgment, we review the imposition of sanctions “for abuse of discretion.

15 While Anderson suggests that best practice would be for the challenged judge not to preside

over a disqualification hearing, and we would recommend that courts abide by that recommendation,

we do not believe that the circuit court’s failure to do so here constituted error. Anderson v. State, 402

S.W.3d 86, 91 n.1 (Mo. banc 2013)

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‘An abuse of discretion occurs when the court’s order is clearly against the logic of the

circumstances and is so arbitrary and unreasonable as to s hock the sense of justice and

indicate a lack of careful consideration.’” A.J.H. ex rel. M.J.H. v. M.A.H.S., 364 S.W.3d

680, 681 (Mo. App. E.D. 2012) (quoting Rea v. Moore, 74 S.W.3d 795, 799 (Mo. App.

S.D. 2002)). We have previously addressed the source s and exercise of a trial court’s

authority to impose sanctions as follows:

A trial court has the inherent power to enforce compliance with its

reasonable orders and may, at its discretion, impose sanctions when they

are justified, considering the conduct of the parties and counsel. A court

has the inherent power to sanction bad faith conduct, probably by wa y of

awarding attorney’s fees, on analogy to the power to award attorney’s fees

related to prosecuting a contemnor. The imposition of sanctions . . .

transcends a court’s equitable power concerning relations between the

parties and reaches a court’s inherent power to police itself, thus serving

the dual purpose of vindicating judicial authority without resort to the

more drastic sanctions available for contempt of court and making the

prevailing party whole for expenses caused by this opponent’s obstinacy.

A court must, of course, exercise caution in invoking its inherent power,

and it must comply with mandates of due process, both in determining

that the requisite bad faith exists and in assessing fees.

The existence of sanctioning schemes established by rule or statute

does not displace the inherent power of the court to impose sanctions for

bad faith conduct. The inherent power of a court can be i nvoked even if

procedural rules exist which sanction the same conduct.

McLean v. First Horizon Home Loan, Corp., 369 S.W.3d 794, 801 (Mo. App. W.D.

2012) (citations omitted).

The court’s sanctions judgment is based both on Father’s motion for sanctions

and its inherent authority to impose sanctions. As to the grounds set forth in the motion,

the court cited various direct contacts that Mother ’s counsel had with Father’s expert

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witness Dr. Schwartz, including the aforementioned 44 page letter16; phone calls to Dr.

Schwartz requesting that she video record her psychiatric evaluation of their client or

allow counsel to attend the evaluation; a misrepresentation to Dr. Schwartz that the

court said “it would be a good idea” to record the evaluation; and evi dence that counsel

had sent Dr. Schwartz a disc containing 1,187 pages of information with the child’s

medical records, case pleadings, and transcripts from this case and other litigation

involving Mother and Father, photographs of the child , and other documentation.

As to those facts that would have been specific to its inherent authority, the court

addressed counsel contacts with Father ’s expert witness Dr. Utley. Of particular

concern was a letter from counsel, transmitted to Dr. Utley via email, expre ssing their

belief that an appointment she had scheduled that day to continue her psychiatric

evaluation of the child should not proceed because its scheduling had not followed the

16 Noting the 125 purported inaccuracies and mischaracterizations that counsel brought to Dr.

Schwartz’s attention so she could amen d Mother’s psychiatric evaluation report, the court also focuses

on references in counsel’s letter to other experts, including her colleague Dr. Gerald Gentry, who had,

counsel asserted, testing and interview processes unlike those used by Dr. Schwartz. I n the court’s

view, this was “an apparent attempt to pressure Dr. Schwartz to change her report and , therefore, her

testimony.”

During oral argument, Mother’s counsel referred to Brown v. Hamid, 856 S.W.2d 51, 54 (Mo.

banc 1993), in which the Missouri Supreme Court held that ex parte contacts between counsel and an

opposing expert are not forbidden under the rules “to discuss matters previously disclosed,” unless the

attorney “emphasizes his or her connections with an expert’s colleagues or superiors—especially when

unrelated to the case—it may constitute a form of pressure on an expert’s decision to testify, and

implies the possibility of indirect benefits or punishments from that decision.” Th at case involved a

non-treating expert for a woman claiming medical malpractice and opposing counsel’s ex parte contact

with the expert expressly intended to dissuade him from testifying. Id. at 53. Because no prejudice

was shown to the plaintiff, in that the expert was not dissuaded from testifying, our supreme court

determined that the trial court did not err in failing to sanction the doctor or his attorney. Id. at 55. Its

standard of review was an abuse of discretion that could be reversed only upon a showing of prejudice

to the complaining party. Id. at 54. The situation here involves a non-treating expert who was also

named by court order as Mother’s independent psychiatric evaluator. Mother’s counsel attempted to

use the influence of Dr. Gentry—a colleague of Dr. Schwartz—to convince her to change her report

and thus change her testimony about Mother. And here, unlike in Brown, the circuit court imposed

sanctions. We are not persuaded that Brown must be read as rendering counsel’s conduct permissible.

In fact, the court specifically stated that “[i]n some circumstances, such pressure may constitute a

violation of an attorney’s ethical duties or the criminal law.” Id.

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procedures set forth in the court’s order allowing the evaluation. Dr. Utl ey

subsequently cancelled the appointment with the child and Father, concerned that she

would be in contempt of court if she proceeded. According to the court, this

communication from counsel hindered Dr. Utley’s ability to complete her evaluation

of the child, and misled her “into believing she could not meet with [Father] and minor

child at the scheduled appointment time.”

Additional behavior the court cited to warrant sanctions included Mother ’s 260 -

page request for written findings of fact an d conclusions of law; counsel’s assertion

during a hearing on expert-witness designations that Dr. Utley had been subject to

multiple ethical complaints, when this was not true; the service of 34 pages of

interrogatories and a request for production of 74 items on the guardian ad litem,

necessitating a motion to quash; counsel’s scheduling of a Saturday deposition despite

a court directive that such depositions not be scheduled without the agreement of all

parties, necessitating a motion to quash; and an unreasonably long deposition of Father,

necessitating a motion to terminate.

Mother’s counsel assert three points relied on in their appeal, raising procedural

and factual issues to support their claim that they were unfairly sanctioned. Because

the circuit court indicated before trial began that a hearing would be held to consider

Father ’s sanctions motion, but did not conduct that hearing, as a matter of fundamental

fairness, we reverse the circuit court’s sanctions judgment. 17 On remand, the circuit

court is ordered to provide proper notice of a hearing to Ms. Pingell, Mr. Davis, and

17 We express no opinion on the specific legal and factual issues raised in counsel’s points. We

would note that a sanctions hearing is not required in every case. Here, counsel’s conduct was a matter

the court could observe throughout the proceedings, and it had the inherent authority to impose

sanctions without a hearing on the basis of any bad-faith conduct it observed.

23

their law firm on the motion for sanctions and alleged bad-faith conduct and to conduct

a limited hearing. Because the motion for reconsideration of the court’s oral

pronouncement of the sanction judgment specified that counsel were precluded at trial

from presenting the testimony of Dr. Gentry relating to their letter to Dr. Schwartz,

they may present this witness and testimony to the extent it differs from or adds

anything to the Gentry affidavit filed with their motion to intervene. If the parties and

circuit court agree that additional witnesses, evidence or argument would clarify the

issues, such evidence may be introduced and such argument may be heard. The court

may, on remand, consider all of the proceedings to date and the filings, motions, a ctions

by counsel in open court, and evidence adduced in this proceeding to date , and prior

proceedings in reaching its decision regarding sanctions .

Finding no merit to Mother ’s appeal, we affirm the circuit court’s child -custody

modification judgment. We find merit to the appeal filed by Mother’s counsel , solely as to the lack of a hearing on the sanctions motion . Accordingly, we vacate the sanctions judgment and remand for a hearing on the sanctions motion and alleged badfaith conduct.