505 S.W.3d 406
Mo. Ct. App.2016Background
- Child born 2012; father (Brent Massman) had custody on alternate weekends and Wednesdays; father died Dec. 2014.
- Paternal grandparents (Dale & Maranda Massman) regularly saw the child during father’s custody; after his death they had intermittent contact (several visits in Jan–Mar 2015).
- Grandparents filed a petition mid‑April 2015 seeking court‑ordered visitation (monthly weekends, holidays, birthday, two weeks in summer) and medical updates; petition did not allege any >90‑day total denial of visitation.
- Trial court found mother restricted contact and awarded one weekend per month plus a holiday schedule, and ordered information sharing; court did not find or address any >90‑day denial under §452.402.1(4).
- Mother appealed, arguing §452.402.1(4) requires a grandparent to have been unreasonably denied visitation for more than 90 days as a prerequisite to any court‑ordered grandparent visitation.
Issues
| Issue | Plaintiff's Argument (Mother) | Defendant's Argument (Grandparents) | Held |
|---|---|---|---|
| Whether §452.402.1 requires a grandparent to show an unreasonable denial of visitation for more than 90 days in addition to meeting subpart (1), (2), or (3) | The 90‑day unreasonable denial in subpart (4) is a mandatory precondition that must be met along with subpart (1), (2) or (3) | Subpart (4) applies only to subpart (3) (six‑month residence); subpart (2) (one parent deceased) alone suffices | Court: §452.402.1 requires satisfying subpart (4) plus one of (1), (2), or (3); grandparents failed to plead/prove >90‑day denial, so judgment reversed |
| Whether the trial court could treat brief/intermittent contacts as not interrupting a >90‑day denial | Mother: existing intermittent visits show no >90‑day total denial; trial court lacked statutory basis | Grandparents: some visits were minimal and court could still find an unreasonable >90‑day denial despite limited contacts | Court: intermittent short visits count; grandparents did not prove a >90‑day total denial—argument rejected |
Key Cases Cited
- Blakely v. Blakely, 83 S.W.3d 537 (Mo. banc 2002) (Missouri statute requires threshold showing of >90‑day unreasonable denial and this distinguishes it from Washington law in Troxel)
- Herndon v. Tuhey, 857 S.W.2d 203 (Mo. banc 1993) (statute’s >90‑day denial requirement is a prerequisite and narrows intrusion on parental rights)
- Pfeifer v. Deal, 498 S.W.3d 799 (Mo. App. S.D. 2015) (interpreting 2004 revision to require subpart (4) in addition to subparts (1)–(3))
- In re Adoption of E.N.C., 458 S.W.3d 387 (Mo. App. E.D. 2014) (noting post‑amendment interpretation tying the 90‑day requirement to other subparts)