JAMES REX CLARK,                             )
                                             )
       Petitioner-Respondent,                )
                                             )
v.                                           )      No. SD35335
                                             )      Filed: February 22, 2019
REGINA DAYLE CLARK,                          )
                                             )
       Respondent-Appellant.                 )

         APPEAL FROM THE CIRCUIT COURT OF MCDONALD COUNTY

                     Honorable John LePage, Associate Circuit Judge

REVERSED AND REMANDED

       Regina Clark (Mother) appeals from an amended judgment that dissolved her

marriage to James Clark (Father), awarded Father sole legal and physical custody of the

parties’ three children, and purported to grant Mother restricted visitation. According to

Mother, the manner in which her visitation schedule was to be determined “constitutes an

impermissible delegation of judicial authority to someone other than a judge[.]” We agree.

The amended judgment is reversed, and the cause is remanded for further proceedings

consistent with this opinion.

       Because of the narrow issue presented by this appeal, the relevant facts can be

succinctly summarized. In January 2016, Father filed a petition for dissolution of the
parties’ marriage. The parties’ three children were then ages 10, 15 and 18. A guardian

ad litem (GAL) was appointed to represent the children. Temporary custody was placed

with Father.

       In June 2016, the court entered an order concerning Mother’s visitation. The court

found that Mother “would benefit from therapeutic visitation with the children at this time.”

The court ordered that “the local rule visitation for mother will be suspended pending

further order of this Court, and mother shall participate in therapeutic visitation with the

children[.]” In August 2016, the GAL filed a motion to terminate the therapeutic visits. In

a September docket entry, the court suspended therapeutic visitation until further evidence

could be heard on the matter.

       In March 2017, trial on the petition for dissolution was held. The court heard

testimony from several witnesses, including: (1) the family therapist conducting the initial

therapeutic visitation; (2) the children’s therapist; (3) Mother’s therapist; (4) Mother;

(5) Father; and (6) the parties’ three children.

       In December 2017, the court entered an amended judgment of dissolution. In

awarding Father sole legal and physical custody of the children, the court made a finding

that “frequent, continuing and meaningful contact with the mother is not in the children’s

best interest[.]”1 The judgment incorporated a parenting plan (Parenting Plan) “restricting”

Mother’s visitation to therapeutic visits. Such visits were to be determined by: (1)



       1
          The court considered several factors, including the parties’ mental health, and
found “there was credible evidence of domestic violence as defined by section 455.010
toward the children perpetrated by the mother.” See § 452.375.2(6), RSMo Cum. Supp.
(2013). The court further found that “[t]his factor favors the father and no findings [of]
fact or conclusions of law need be shown as the mother is not being awarded custody of
the children.” See id.

                                               2
Mother’s therapist; (2) the children’s therapist; and (3) a “therapeutic visitation therapist”

agreed to by the parties. The visitation provision in the Parenting Plan stated:

           The best interests of the children will be served by restricting mother’s
           visitation time in the following manner:

           The mother shall be encouraged to engage in therapy with her own
           individual therapist … and when her therapist reaches a point in therapy
           that her therapist believes the mother can engage in a healthy therapeutic
           relationship with the children, mother’s therapist shall reach out to the
           children’s therapist … and upon the children’s therapist
           recommendation therapeutic visits may be coordinated with a
           therapist agreed to by the parties, hereinafter known as the
           “therapeutic visitation therapist”. The mother shall be consulted on the
           selection of the therapeutic visitation therapist, however, the decision of
           which therapist to utilize will be decided by the therapist of the children.
           If either party disagrees, they may seek the Court’s recommendation by
           simple request of the Court for such recommendation.

           When the therapeutic visitation therapist believes that the therapy is
           effective and it is time to look at supervised visitation (without a therapist)
           or unsupervised visitation; then the therapeutic visitation therapist shall
           reach out to the children’s current therapist and upon agreement and
           recommendation of the children’s therapist, supervised visits or limited
           unsupervised visits may be allowed.

           The recommendation by the [c]hildren’s [t]herapist (not the therapeutic
           visitation therapist) for unlimited unsupervised visits, will be prima facie
           evidence of a change in circumstances warranting a change in the
           visitation schedule, but not necessarily a substantial change in
           circumstances warranting a change in the custody of the children.

(Underlining in original and other emphasis added.) This appeal followed.2

       Our review of this court-tried case is governed by Rule 84.13(d) and Murphy v.

Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). In Re Bell, 481 S.W.3d 855, 858-59 (Mo.




       2
          The trial court denied Mother’s motion to amend the judgment to provide a
written specific schedule detailing the visitation and residential time with each parent.

                                                 3
App. 2016).3 “The judgment will be affirmed unless there is no substantial evidence to

support it, it is against the weight of the evidence, or it erroneously declares or applies the

law.” Id. The issue presented by this appeal involves a delegation of statutory authority,

which we review de novo. See Barker v. Barker, 98 S.W.3d 532, 534 (Mo. banc 2003).

       Mother contends that the trial court erred by granting Mother therapeutic visitation

that “could only take place upon recommendations of Mother’s therapist and the children’s

therapist and requiring both therapists to coordinate with a third therapist who would

conduct the therapeutic visitation.” According to Mother, the judgment “constitutes an

impermissible delegation of judicial authority to someone other than a judge hearing the

case[.]” We agree.

       The trial court derives its authority to determine child custody and visitation from

statute. See Aubuchon v. Hale, 384 S.W.3d 217, 223 (Mo. App. 2012). With respect to

visitation, § 452.400.1(1) states:

       A parent not granted custody of the child is entitled to reasonable visitation
       rights unless the court finds, after a hearing, that visitation would endanger
       the child’s physical health or impair his or her emotional development. The
       court shall enter an order specifically detailing the visitation rights of the
       parent without physical custody rights to the child and any other children
       for whom such parent has custodial or visitation rights. In determining the
       granting of visitation rights, the court shall consider evidence of domestic
       violence. If the court finds that domestic violence has occurred, the court
       may find that granting visitation to the abusive party is in the best interests
       of the child.

Id.; see M.F.M. v. J.O.M., 889 S.W.2d 944, 957 (Mo. App. 1995) (noting that courts derive

their power to determine custody by statute and must act in the children’s best interest).

The trial court “has a special obligation in orders pertaining to custody of minor children


       3
         All rule references are to Missouri Court Rules (2018). All statutory references
are to RSMo Cum. Supp. (2013).

                                              4
and must act upon evidence adduced.” Aubuchon, 384 S.W.3d at 223. “Permitting others

to alter custody arrangements is an impermissible delegation of judicial authority.” Id.

Thus, it is impermissible to enter an order allowing a therapist to decide when conditions

have changed enough to alter the parenting plan. Id.; see also E.A.P. ex rel. V.C.I. v.

J.A.I., 421 S.W.3d 460, 463-65 (Mo. App. 2013) (trial court “impermissibly delegated

judicial authority to the parenting coordinator when it gave the parenting coordinator

authority to modify the contact schedule”).

       The visitation provision in this case fails to conform to the statutory requirement in

§ 452.400.1(1) that the trial court must “enter an order specifically detailing” Mother’s

visitation schedule. Id. The amended judgment purports to restrict Mother’s visitation,

but the parenting plan provides no scheduled visitation at all. Instead, the judgment

impermissibly delegated to Mother’s therapist, the children’s therapist and a third therapist

the authority to determine when Mother could exercise visitation with her children.4 For

example, the children’s therapist was authorized to allow visits without a therapist, for both

“supervised” and “limited unsupervised” visits. It is not until the children’s therapist

recommends “unlimited unsupervised visits” that, as “prima facie evidence of a change in




       4
          We note that in Beshers v. Beshers, 433 S.W.3d 498 (Mo. App 2014), this Court
affirmed a parenting plan that allowed a counselor “some discretion to determine the
frequency and duration of counseling sessions and initial unsupervised visits” between the
mother and the child. Id. at 509-10. There, however, the initial counseling sessions did
not change the mother’s “custody arrangement consisting of unsupervised visits with [the
child] at her residence on a set schedule laid out in the trial court’s Parenting Plan no later
than 100 days following the trial court’s Final Judgment.” Id. at 510. We have no such
parameters here. See also Francis v. Wieland, 512 S.W.3d 71, 79 (Mo. App. 2017) (trial
court did not impermissibly delegate its judicial authority when it allowed “the guidance
and recommendations of the designated professionals concern[ing] mental health or
medical treatment and advice” because such recommendations and advice “had nothing to
do with altering custody arrangements”).
                                              5
circumstances warranting a change in the visitation schedule,” the trial court would actually

exercise its statutory authority to set the visitation schedule. Thus, the trial court erred by

delegating its judicial authority to the therapists to decide the frequency, duration and type

of contact (i.e., with or without therapists and supervised or unsupervised visits). See

E.A.P., 421 S.W.3d at 463-65; Aubuchon, 384 S.W.3d at 223. The error prejudiced

Mother because it materially affected her visitation rights. See Archdekin v. Archdekin,

562 S.W.3d 298, 308 (Mo. banc 2018); Rule 84.13(b). Accordingly, Mother’s point is

granted. The amended judgment is reversed, and the cause is remanded for further

proceedings consistent with this opinion.5



JEFFREY W. BATES, J. – Opinion Author

DANIEL E. SCOTT, J. – Concur

MARY W. SHEFFIELD, J. – Concur




       5
           Because remand is required, we also note that the trial court purported to restrict
Mother’s visitation without making a finding of physical endangerment or impairment of
emotional development as required by § 452.400.1(1). See State ex rel. S.F.F. v. S.C.G.,
554 S.W.3d 512, 521-22 (Mo. App. 2018) (“trial court’s failure to make those findings
before restricting visitation can constitute reversible error”); Parker v. Parker, 918 S.W.2d
299, 300 (Mo. App. 1996) (“court must make the finding of endangerment if it intends to
restrict visitation”).

                                              6
