892 S.W.2d 683 | Mo. Ct. App. | 1994
Father, R.J., appeals after the trial court dismissed a motion to modify child custody provisions entered in a dissolution decree in 1987. We affirmed the dissolution. S.L.J. v. R.J., 778 S.W.2d 239 (Mo.App.1989). We previously considered an appeal involving the motion to modify. S.L.J. v. R.J., 821 S.W.2d 104 (Mo.App.1991). In the motion to modify appeal, we remanded after holding the trial court must appoint a guardian ad litem for the two children, Robert, now sixteen, and Daniel, now thirteen. After remand, the trial court ordered each party to deposit the sum of $1,000 to create a fund to pay guardian fees for a guardian ad litem. Mother made several $100 deposits. Father made no deposits. On September 7, 1993, the court entered an order which stated in part, “Upon the failure of the parties to pay into the Registry of the Circuit Court the full amount ordered to be posted for guardian ad litem fees, all motions filed by each party are dismissed.” The next day, the court entered a nunc pro tunc order which directed the dismissal was without prejudice. We have jurisdiction. Mahoney v. Doerhoff Surgical Services, 807 S.W.2d 603, 506 (Mo. banc 1991).
The parties have been in continuous litigation since the original dissolution petition was filed. Even after the appeal was filed in the present case, the parties continued to litigate at length in the circuit court. The contest centers on custody of the children. The motions to modify began in 1988 and have been amended on various occasions. We incorporate into this opinion what was said in the earlier appeals.
Father contends there are seven errors which require a remand for further proceedings on the motion to modify. He claims the court erred in restricting testimony of the guardian ad litem; in failing to protect the interests of the children by refusing to hold a hearing on the children’s wishes; in dismissing the motions as a sanction for not posting a sum to pay a guardian ad litem because Father is without assets; in ordering a deposit for payment of attorney’s fees to the guardian ad litem without allowing a prior examination of the guardian of the necessity and reasonableness of the fees; in appointing the guardian ad litem, which was suspect because of a possible conflict of interest; in violating Rule 67.10 and in ordering the cost of the deposition of Father taxed against Father; and in entering orders subsequent to the dismissal of the motions.
Mother responds in kind, arguing the failure of Father to comply with the order to deposit the funds for the guardian ad litem justified dismissal; no hearings were required because the dismissal entered as a sanction was not an abuse of discretion; Mother’s objection to a guardian ad litem on possible conflict of interest grounds was warranted; the cost of Father’s deposition was necessitated by his own conduct and the court properly taxed the expense against Father; and orders entered after the notice of
The dispositive issue is whether the court abused its discretion in dismissing Father’s motion to modify as a sanction for failure to comply with the order of court to deposit sums to pay a guardian ad litem. The requirement for appointment of the guardian was determined in the prior appeal and the subject of our mandate. At the time of the dismissal without prejudice, Rule 67.02 authorized a dismissal for failure “to comply with these Rules or any order of the court.” The rule was repealed on June 1,1993, effective January 1, 1994. The new rule, Rule 67.03 also authorizes an involuntary dismissal for failure to comply with “any order of the court.” We review an involuntary dismissal as a sanction for abuse of discretion. Jones v. Eagan, 715 S.W.2d 596, 597 (Mo.App.1986). We find no abuse of discretion after reviewing the extensive record in this case. In addition to the failure to comply with the order to deposit funds for payment of a guardian ad litem, Father has failed to comply with the provisions of previous orders and decrees. Finally, the allegations in the motion to modify involving the custody arrangements were made years ago. If the welfare of the children of these parties would be served by a modification of the previous child custody provisions, the relevant issues can be presented by a current motion.
We affirm.
