1 J.C.M., an individual, and J.C.M., Next ) Friend for W.C.M. and O.H.M., ) ) Plaintiff-Appellant/Respondent, ) ) v. ) Nos. SD 35374, SD35375, and SD35376 ) (consolidated) J.K.M., a/k/a J.K.E., D.A.N. and D.E.N., ) ) Filed: Apr. 16, 2019 Defendants-Respondents/Cross- ) Appellants. )
APPEAL FROM THE CIRCUIT COURT OF IRON COUNTY Honorable Randall Head AFFIRMED Every adult involved in this cons olidated appeal challenges the judgment that awarded money damages to W.C.M. (“WM”) and O.H.M. (“OM”) (“the children”). In a single point, J.C.M. (“Father”), claims the trial court erred i n failing to grant him a new trial based upon his claim that t he defendants’ closing argumen t was “improper.” 1 J.K.M. (“Mother”), along with h er parents, D.A.N. and D.E.N. (“ Grandparents”), cross-

1 For ease of reference we occasionally refer to Father and the children collectively as “Plaintiffs.”2 appeal the portion of the judgment entered in favor of Plaintif fs on their claims for interference with custodial ri ghts and false imprisonment. 2 In six points, Defendants claim the trial court erred in: (1) instructing the jury on the false imprisonment claim; ( 2) denying their motions for dir ected verdict or a new trial on the false imprisonment claim because Plaintiffs did not make a submissible case; and (3) abusing its discre tion in ruling on four separate evidentia ry matters. Finally, Mother’s sole additional point claims instructional er ror related to her refusal to answer questions at her deposition and subsequent fa ilure to testify at trial based upon her assertio n of Fifth-Amendment privilege. Finding no reversible error in any of these points, we affirm. Background Mother and Father were marrie d in 2000. The sad series of even ts that ultimately led to these appeals began in J anuary 2006. At that time, Moth er, Father, and the children were livi ng together in apparent domestic harmony in S alem, Missouri. Sometime that month, WM, then four years’ old, said that Father had touched his “root,” the term WM used for his genita lia. Believing this statement t o be an indication that Father had sexually abused WM, M other took the children, moved out of the family home, and began residing in a tra iler located on Grandparents’ property in a remote part of Dent County, Missouri. After Mother filed a petition for a child order of protection a gainst him, Father filed for divorce in May 2006. Aft er Mother and Father separat ed in 2006, and before the

2 The briefs filed by Mother and Grandparents are identical in a ll respects, except that Mother’s brief contains an additional allegation of error, Point 7 of her brie f, that relates to her invocation of her Fifth Amendment right not to incriminate herself. To the extent that their arguments are the same, we analyze their points together and refer to Mother and Grandparents coll ectively as “Defendants.”3 dissolution trial in Januar y 2008, various hotline calls were m ade against Father as a result of WM’s accusations, and WM attended counseling. During this time period, WM made statements to several thi rd-party witnesses, including pro fessionals, nonprofessionals, and family members, about the alleged abuse. Du e to the accusations against him, Father had only supe rvised visits with the childre n. The Children’s Division investigated WM’s accusations of sexual abuse and ultimately fo und them to be unsubstantiated. No criminal charges for sexual abuse were eve r filed against Father. When the dissolution judgment awarded custody of the children t o Father, Mother abducted the children and fled the state. 3 Father would not see the children again for more than three years. When the children were finally returned to Missouri and placed back into Father’s care and c ustody in August 2012, Father and the children sued Mother and Grandparents for, respectivel y, intentional interference wi th custody and false imprisonment. 4
The dissolution case took three days to try, and the resulting JUDGMENT, ORDER, AND DECREE OF DISSOLUTION OF MARRIAGE (“the dissolution judgment”) was extremely critical of Mother. For example, it c ontained the following findings:

 Mother had made no effort to seek employment;

 Mother had accused Father of havi ng an affair with a co-worker during the marriage, but the court found no cre dible evidence of that – ra ther, it found that Mother had embarrassed and di srupted Father at his place o f work;

 Mother had accused Father of having a pornography addiction, bu t the court was not convinced that Father’s a ctions in that regard were abn ormal;

3 WM was born in 2002, and OM was born in 2004, making their res pective ages seven and four at the time of their abduction. 4 Father acted as the children’s next friend in the proceedings. Their petition contained a third count for civil conspiracy, but Plaintiffs dismissed that theory of recov ery prior to submitting th e case to the jury.4  Mother’s allegations of sexual a buse against Fath er were invest igated by the Missouri Children’s Divisi on and were unsubstantiated;

 Mother repeatedly questioned WM about the sexual abuse, and tha t repeated questioning rendered any effort t o obtain a reliable report nea rly impossible;

 Mother had exerted pressure on t he children not to attend visit s with Father;

 Mother has an inflexible belief sy stem that “prevents her from seeing the evidence of her mistake before her own eyes”;

 There is no credible evidence th at Father committed any acts of abuse;

 Mother and her family have a gene ral attitude tha t they are rig ht and therefore justified in violati ng court orders;

 Mother blames others for event s that put her i n a bad light;

 Mother has called the professiona ls involved in the case liars, and she exaggerates details or makes up stories in order to explain her position;

 Mother fabricates reasons to deny Father’s family members conta ct with the children; and

 Because of her inflexible belief system, Mother will not comply with future court orders. The dissolution judgment awarded F ather legal and physical cust ody of the children, subject to periods of vi sitation with Mother. Becaus e Mother had the children at the time the dissolution judgmen t was entered, the court ord ered her to deliver them to Father in ten days -- May 31, 2009, at 5:00 p.m. at the Dent Co unty Sheriff’s Department. Father went to the sheriff’s o ffice at the appointed time and w aited for over an hour, but Mother did not appear. Unbeknownst to Father, instea d of bringing them to the sheriff’ s office, Mother had taken the children to a hom e in Iowa owned by people known to Grandparents. Over the next three years, Mother moved the children from Iowa to No rth Carolina, Florida,5 Texas, Oklahoma, Wyoming, and finally to Kansas, all the while evading the authorities’ attempts to locate Mother and t he children. During that three- year time period, the children were not allowed to att end school, were forced to disg uise themselves by getting haircuts and coloring their hair , and were not allowed to have friends. Grandparents aided Mother in making these moves, either by providing her wit h money or by assisting her in finding places to live i n those various states. The chi ldren were finally returned to Missouri in late August 2012 when l aw enforcement located them in Kansas. When Mother returned to Missouri, she was charged with two felo ny counts of parental abduction. Those charg es were eventually amended to m isdemeanors, and Mother was placed on a two-year period of unsupervised probatio n, which she was still on at the time of trial. Father’s claims against Mother a nd Grandparents were for interf erence with his custodial rights based upon their abducting the children after the dissolution judgment had made Father their legal cust odian. The theory of the child ren’s false imprisonment claims against Mother and Gra ndparents was that they unlawfully restrained the children by removing them from the state a gainst Father’s wishes. Plain tiffs’ petition alleged that the children “did not and, because of their minority, could not lawfully consent to this abduction.” The majority of the trial concerned whether Father had sexually abused WM. WM testified that he had no reco llection of Father ever having abused him, and he did not remember ever having made suc h allegations against Father. Defendants contended that Mother was justified i n taking the children, and Grandpare nts were justified in aiding and assisting her because they believed that Father had sexuall y abused WM.6 Grandparents testified at trial. They admitted that they had t aken the children in violation of a court order, but t hey argued that they were acti ng under a reasonable belief that Father had sexually abuse d WM, thus putting the children a t risk while in Father’s care. Mother asserted her Fifth-A mendment right against self-i ncrimination and did not testify at her deposition or at trial. The trial court later i nstructed the jury that “[i]n reaching a decision in this matter, you may but are not require d to infer that had [Mother] responded truthfully to the que stions posed to her during her d eposition, her answers would have been unfavorable to her, or would have corroborated the testimony provided by Plaintiffs and their witnesses.” The jury returned a verd ict in favor of Father and the children on all claims against Defendants. However, as to interference with Father’s custodial rights (“Count 1”), the jury assessed Father’s c ompensatory damages at “$0[.]” As to false imprisonment of WM (“Count 2”), t he jury assessed WM’s compensa tory damages at $75,000. As to false imprisonment of OM (“Count 2”), the jury assessed OM’s compensatory damages at $75,000. The jury also found that Plai ntiffs were not entitled to punitive damages. We recite additional evidence as necessary to address the parti es’ various points on appeal, and for ease of analysis, we do not take them up in strict numerical order. Analysis Father’s Direct Appeal Father’s sole point claims as fo llows that the trial court erre d in overruling his motion for a new trial based upon Def endants’ allegedly “improp er” jury argument. The trial court erred in overru ling [Father]’s motion for a new trial based on Defendants’ improper jury ar gument because Defendants’ argum ent7 was without legal or factual ju stification and was prejudicial in that Defendants “requested” that the jury transfer any damages it mi ght award to [F]ather to [the children] b ecause “we don’t reward molest[e ]rs” and the jury thereafter found [D]efendant s liable for interference with [Father]’s custodial rights but awarded $0 i n compensatory damages despite undisputed evidence that [F]athe r incurred expenses related to his threeyear search for his children i n addition to non-pecuniary damag es. Father’s point conflates two separ ate statements made during De fendants’ closing arguments, and we will analyze them separately. First, Mother’ s counsel argued, “We don’t reward child molesters. T hey aren’t entitled to a dime, I don’t care what they say; they’re not entitled to it, and don’t reward this man.” Becaus e Father did not object to that argument at trial, his clai m is not preserved for review. Potter v. Kley , 411 S.W.3d 388, 391-92 (Mo. App. E.D. 2013). Unpreserved claims of error are subject only to review for plai n error. [ Rush v. Senior Citizens Nu rsing Home Dist. of Ray County, 212 S.W.3d 155, 162 (Mo. App. W.D. 2006). ] Under Rule 84.13(c),[ 5 ] “[p]lain errors affecting substantial rights ma y be considered on appeal, in th e discretion of the court, though not raised or p reserved, when the court fi nds that manifest injustice or miscarriag e of justice has resulted there from.” Rule 84.13(c). Comments made during clos ing arguments rarely rise t o the level of plain error ent itling a party to relief. Rush, 212 S.W.3d at 163.
Id. at 392. Father did not request plain-e rror review of this argument, and we decline to do so sua sponte

. See Mitchell v. Wilson , 496 S.W.3d 579, 584 n.5 (Mo. App. S.D. 2016). Grandparents’ counsel later argued: My clients have asked something, and I’m going to make that request to you, and that is thi s: That if you do decide to giv e anything more than nominal damages in thi s case, they have asked that yo u give it to the boys, rather than to [Fa ther]. I’d rather have you have recovery for them.

5 All rule references are to Mi ssouri Court Rules (2018).8 Father immediately objected that the argument was “utterly impr oper,” and he requested a mistrial. The trial court deni ed the request for mistrial an d advised the jury that it was to be guided by the court’s instructions. When the jury returned its verd ict awarding Fathe r “$0” in comp ensatory damages, Father stated: Prior to the discharge to disch arging the [j]ury, I just want to renew my motion for a new [sic] trial[ 6 ] that I stated previously, [during defense counsel]’s improper argument t o the jury in closing. I feel th at it’s clear now that that argument had a di rect impact on the jury’s verdic t. As indicated by the verdic t, I’d like to go ren ew that motion at t his time. The trial court again denied Fat her’s request for a mistrial. “A mistrial is a drastic rem edy, granted only in extraordinary circumstances.”
State ex rel. Kemper v. Vincent , 191 S.W.3d 45, 49 (Mo. banc 2006) (quoting State v.
Parker , 886 S.W.2d 908, 922 (Mo. banc 1994)). “Objections to evidenc e and argument must be specific.” State v. White , 870 S.W.2d 869, 873 (Mo. App. W.D. 1993) (citing
State v. Jones , 806 S.W.2d 702, 705 (Mo. App. E.D. 1991)). “The statement ‘t hat’s improper argument’ is too genera l and nonspecific to preserve t he issue for appellate review.” White , 870 S.W.2d at 873 (citing State v. Beatty , 849 S.W.2d 56, 61 (Mo. App. W.D. 1993)). Thus, the trial court was fr ee to simply deny or ignore it. See Sparkman v.
Columbia Mut. Ins. Co. , 271 S.W.3d 619, 624 (Mo. App. S.D. 2008) (“A vague, general objection does not allow th e trial court to make an informed ru ling as to the validity of the objection”).

6 While counsel used the words “d ischarge” and “discharging” in stating that he wished to renew his “motion for a new trial[,]” this request was made before the ju ry had left the courtroom to begin its deliberations on the case. Based on that timing, we assume tha t counsel was actually ref erring to his earlier request for a mistrial.9 “[W]e will not convict a trial c ourt of error on an issue that it had no chance to decide.” Kline v. City of Kansas City , 334 S.W.3d 632, 641 n.4 (Mo. App. W.D. 2011) (quoting Goralnik v. United Fire & Cas. Co. , 240 S.W.3d 203, 210 (Mo. App. E.D. 2007)). Father’s point is denied. Defendants’ Cross-Appeal Review of Points Alleging Instructional Error “An instruction will be given or refused by the trial court according to the law and the evidence in the case.” Eckerd v. Country Mut. Ins. Co., 289 S.W.3d 738, 746 (Mo.App.2009). “We review the evidence in the light most favorable to the submission of the i nstruction.” Id. This Court reviews “the trial court’s submission of a jury ins truction ... de novo.” Rinehart v. Shelte r Gen. Ins. Co., 261 S.W.3d 583, 593 (Mo.App.2008); see Gumpanberger v. Jakob, 241 S.W.3d 843, 846 (Mo.App.2007). “The court will dete rmine if the instruction is supported by substantial evidence by viewing t he evidence in a light most favorable to the instruction and disrega rd contrary evidence.” Syn, Inc. v. Beebe, 200 S.W.3d 122, 128 (Mo.App.2006). A new tr ial is warranted “‘ only if the offending instruction misdire cted, misled, or confused the jury, resulting in prejudicial error.’” Rinehart, 261 S.W.3d at 593 (quoting Kopp v. Home Furnishing Ctr., LLC., 210 S.W.3d 319, 328 (Mo.App.2006)); see McBryde v. Ritenour School Dist., 207 S.W.3d 162, 168 (Mo.App.2006). Stated another wa y, “[r]eversal for instruc tional error should not occur unless it i s found that the instruction contains an error of substance with substantia l potential for prejudicial e ffect.” White v. Curators of Univ. of Missouri, 937 S.W.2d 366, 369 (Mo.App.1996). State ex rel. Missouri Highway & Transp. Comm’n v. Dale , 309 S.W.3d 380, 384-85 (Mo. App. S.D. 2010). Point 1 – Modification of False Imprisonment Verdict Director Defendants’ first point claims the trial court erred in submitt ing a modified Missouri Approved Instruction (“MA I”) on the children’s false i mprisonment claims because the instruction as submitted asked the jury to decide w hether Father had10 consented to the children bei ng restrained by Mother -- not whe ther the children had consented to their restraint. The approved MAI 7 for false imprisonmen t reads as follows: Your verdict must be for plaintiff if you believe: Defendant intentionally [restrained] [instigated the restraint of] plaintiff against plaintiff’s will. MAI 23.04 (footnote omitted). In this case, the trial court submitted a modified version of M AI 23.04 that read: Your verdict must be for pl aintiff . . . if you believe: Defendant . . . intentionally restr ained, or aided or assisted in the restraint of, plaintiff . . . against the w ill of his legal custodian. The jury received a total of si x of these verdict directors (on e for each child against each defendant). Defendants claim the trial court erred in submitting these inst ructions because false imprisonment in Missouri re quires that the individual be restrained against his or her own will and not that of a thi rd party (here, the children’ s legal custodian). Defendants claim they were pr ejudiced by the modified instructi ons because no evidence was presented at trial that the c hildren were restrained agains t their own wills. Rule 70.02(e) provides for the m odification of an existing MAI, the test for which is “whether it follows the subs tantive law and can be readily u nderstood by the jury.”
Dale , 309 S.W.3d at 385 (quoting Smith v. Kovac , 927 S.W.2d 493, 497 (Mo. App. E.D. 1996)). The parties agree that MAI 23.04 was the best instruct ion from which to start,

7 Unless otherwise indicated, all references to MAI are to the S eventh Edition (2012 & Supp. 2017).11 but Defendants claim the trial court’s modification was imprope r because it misstated substantive Missouri law. Defendants argue that Missouri law does not make an exception f or children or custodial parents, and the Restat ement (Second) of Torts sectio n 703 (“section 703”) states that a child’s consent bars a claim of false imprisonmen t. However, as Defendants concede, their research did not reveal any cases indicating tha t Missouri has adopted section 703, and our own research pr oduced a similar result. F ather, on the other hand, argues that infants and young child ren lack the information and maturity necessary to consent to unlawful conduct, and M issouri law recognizes this f act in numerous contexts. As no controlling Missouri authority seems to govern this parti cular dispute, we treat it as a question of first impression. The children were ages seven and four when Mother absconded wit h them. The age at which a minor is consid ered competent to do any acts or perform any duties is determined by the legislature. Morrissey v. Perry , 137 U.S. 157, 159 (1890). While our legislature has not specificall y addressed whether minors can c onsent to their taking and thereby preclude a finding of fal se imprisonment, it has design ated various ages at which children can provide consent in o ther situations, and we first look to that evidence of legislative intent as informi ng our resolution of this point on appeal. As Father points out in his brie f, nowhere in its statutory sch eme has the Missouri legislature indicated an inten t to deem minors as young as the children to be capable of consenting to unlawful conduct. For example, Missouri has desi gnated 14 as the age of consent for certain crimes committed against children, specific ally kidnapping. See section 556.101.3(1) (stating tha t a person less than 14 years old is deemed incapable of12 consent with respect to the cr imes of kidnapping and child kidn apping). 8 In analyzing whether a parent can be found guilty of kidnapping his own chil d, State v. Porter opined, “We think it is obvious that the General Assembly, like the dra fters of the [Model Penal Code], understood that [] when t he victim is a young child, the pertinent lack of consent is ‘that of a parent or other appropriate person.’” 241 S.W.3d 385, 397 (Mo. App. W.D. 2007) (citing Model Penal Code, Expl anatory Note for sections 2 12.1-212.5, 10A U.L.A. 421-22 (2001)). With respect to kidnapping in the third degree, a defense exist s “if the person restrained is a child under the a ge of seventeen and: (1) [a] parent, guardian or other person responsible for the genera l supervision of the child’s w elfare has consented to the restraint[.]” Section 565 .140.1(1) (emphasis added). See also Porter , 241 S.W.3d at 396 (stating that because children under 14 cannot consent, a requi red element of traditional kidnapping is that the parent mus t remove the child from the la wful custody of another without the permission of the lawful custodian ); State v. Vitiello , 791 S.W.2d 837, 839 (Mo. App. W.D. 1990) (sufficient ev idence to support kidnapping charges where father removed his illegitimate child from her mother without the moth er’s consent); section 556.061(5)(b) (stating that “[a]ssent does not constitute conse nt if . . . [i]t is given by a person who by reason of youth . . . is mani festly unable or kno wn by the actor to be unable to make a reasonable judgm ent as to the nature or harmfu lness of the conduct charged to constitute the offense”). In yet other areas of the law, M issouri has similarly designate d ages beyond those at issue here as the age at whi ch one can lawfully provide cons ent. With a few minor

8 Unless otherwise noted, all statutory citations are to RSMo 20 00. Section 556.101 was formerly section 565.100.1, but it was renumbered with no substantive changes.13 exceptions, a child under the a ge of 18 may not legally consent to his or her own medical or surgical procedures. See section 431.061.1(1), (2), (4)(a)-( c). And custodial consent i s necessary for those under ag e 18 who wish to marry. Section 45 1.090.2. Finally, other jurisdictions requi re false imprisonment claims involving minor children to be based upon the consen t of the custodial parent - - not the child. In R.J.D. v. Vaughan Clinic, P.C. , 572 So.2d 1225 (Ala. 1990), the Supreme Court of Alabama held that a private physician and hos pital could not be held liable for falsely imprisoning a minor child against her will when that imprisonment was based o n the request and consent of the minor child’s custodial parent. Id. at 1229. See also Commonwealth v.
Nickerson , 87 Mass. 518, 518-19 (Mass. 1862) (hol ding that a nine-year-o ld child is incapable of consenting to his forc ible transfer from the legal custody of his father to the custody of his mother who ha d no right thereto); State v. Farrar , 41 N.H. 53, 59 (N.H. 1860) (where divorce decree awarde d mother custody of a four-ye ar-old child that the father seized and carried out of t he state, the child was incap able of consenting to that seizure). “When an approved instruction does not fit the case precisely, modifications must be made.” Shutt v. Chris Kaye Plastics Corp. , 962 S.W.2d 887, 890 (Mo. banc 1998) (citing MAI 5th, Committee Comment (1996 Revision) LIII)). MA I itself directs that “[a] modification which is neces sary to make a provided MAI fit the facts of your case [] is not only permissible but is required.” MAI “ How to Use This Book ,” at LI. Under the evidence adduced in this case, MAI 23.04 did not fit. The challenged modifications were consistent wit h substantive Missouri law con cerning the inability of14 children to consent to actions t aken by others, a nd they were n ecessary to fairly submit the issues to the jury given the children’s ages. Defendants’ first point is denied. Point 7 – Instructing the Jury on Mother “Taking the Fifth” Mother’s separate point claims: The trial court erred in allow ing Plaintiffs to enter into evid ence proof that [Mother] refused to a nswer questions at her depositi on based on the Fifth Amendment and in submitting Plaintiff[s’] instruction No. 40 regarding the inferences the ju ry could draw from [Mother’s] ex ercise of those rights, because it was an improper inference and the inst ruction was prejudicial to [Mother ], in that there was ample evidence that the so-called presumption was not true in thi s case and the instruction was a n incorrect and unnecessary statement of the l aw which improperly called at tention to her failure to testify by invoking he r Fifth Amendment rights. (Emphasis added.)[ 9 ] As a result of her absconding wit h the children, Mother was cha rged with two counts of felony child abduction, bo th of which were still pend ing during the discovery phase of this case. On Marc h 30, 2016, while the felony charge s were still pending, Mother appeared for her depositi on in this case. After stating her name and address, Mother provided the following a nswer to each question posed to her: My lawyer has advised me not to a nswer questions about anything pertaining to this case. Follo wing his advice and pursuant to the Fifth Amendment to the United States Constitution and Article I, Sect ion 19 of the Missouri Constitution, I will not answer any questions. During voir dire , Mother’s attorney disclosed t hat Mother had originally been charged with two counts of fel ony parental abduction, and those felony charges were still pending at the time of her deposi tion. Mother’s attorney also informed the panel that those charges had recently been amended to misdemeanors, and Mo ther had “entered a

9 Mother's point, which includes more than one alleged error – a dmitting the deposition and giving a jury instruction – is multifarious an d preserves nothing for our rev iew. City of Joplin v. Wallace Bajjali Dev. Partners, L.P. , 522 S.W.3d 327, 330 (Mo. App. S.D. 2017). However, we exerci se our discretion to review the challenge to the jury instruction ex gratia

. Id. at 331.15 particular type of disposi tion [] which you may or may not hear details about which resulted in her not getting a conviction, not admitting that sh e did anything wrong[.]” Her attorney stated that “because of where we were at the time when this lawsuit was -- civil lawsuit was filed, she took the Fifth Amendment and did n ot testify, and rules now prevent her from testifying in thi s court.” Couns el then asked : “is there anybody that’s going to hold that against her for exercising her constitutiona l rights under the Fifth Amendment?” No panelist raise d his or her hand in response to that question. At trial, Father’s counsel intr oduced the portion of Mother’s d eposition transcript in which she asserted her Fifth- Amendment right not to testify. Counsel did not actually read that portion of the depositi on to the jury after it was re ceived into evidence. During the conference on jury ins tructions, Father’s counsel st ated: [O]ne of the instructions that Pl aintiffs have requested is an instruction clarifying the inference to be dr awn from [Mother]’s taking of the Fifth. There was some discussion in voir dire about suggesting to the jurors that they would not or could not hol d that against her, and we do no t believe that’s an accurate--we believe that would be to be [sic] a miss tatement of Missouri law and are requesti ng a clarifying instruction to cla rify that they can, in fact, draw negative infere nces and that if she had test ified, her testimony would not have bee n favorable to her. Mother objected to the instru ction on the ground that it was a misstatement of Missouri law. Father contended t hat the instruction was a nece ssary clarifying instruction because “the jury was specifically advised in voir dire in a wa y that [counsel] believe[d] may have suggested that they c ould not or should not draw an in ference[.]” The trial court overruled Mother’ s objection to th e instruction (“Instruction No. 40”), and it was included in the p ackage of instructions read a nd given to the jury. As earlier noted, it read as follows:16 In reaching a decision in this matter, you may but are not requ ired to infer that had [Mother] res ponded truthfully to the question s posed to her during her deposition, her an swers would have been unfavora ble to her, or would have corroborat ed the testimony provided by Plain tiffs and their witnesses. In support of her claim that Instruction No. 40 was “an imprope r inference[,]” Mother relies on Johnson v. Missouri Bd. of Nursing Adm’rs , 130 S.W.3d 619 (Mo. App. W.D. 2004), in arguing that th e trial court erred in givin g Instruction No. 40 because “there is absolutely nothing to suggest that [Mother]’s answers would be unfavorable to her” and her answ er to the petition, as well as Grandparents’ testimony, cures any doubt about the same. 10 Mother appears to argue that the trial court treated her claim of privilege as a conclusive judicial admission to the truth of Plaintiffs’ claim s. That argument ignores the instruction’s language that the jury “may[,]” but is “not requi red to[,]” infer the negative inference from Mother’s failure to testify. The inference is t hus permissive, and “[a] party seeking the benefit of a ne gative Fifth Amendment inferen ce in a civil case must[] make an affirmative showing to support its right to judgment an d cannot rely exclusively upon the other party’s re fusal to testify.” Id. at 632. Mother does not assert that Plaintiffs failed to offer affi rmative proof in support of thei r claims.
Johnson observed that the Fifth Amendment privilege against self-incrim ination is properly asserted by parties in civil proceedings during dis covery and at trial. Id. at 628. Although the normal rule in a criminal case is that no negativ e inference may be drawn from the defendant’s failu re to testify, “civil claimants have been denied certain

10 Though Johnson is an administrative case, the a nalysis of the effect of “takin g the Fifth” applies equally to the civil proceedings in this case as Johnson noted that “the law of pri vilege fully applies to administrative proceedings, which are considered, for this limi ted purpose, just as if they were ordinary civil actions.” Id. at 627-28.17 benefits and exposed to negative consequences as a result of ha ving invoked the privilege.” Id. (quoting In re Moses , 792 F.Supp. 529, 536 (E.D. Mich. 1992)).
Johnson , relying on Missouri cases, stated that the refusal to a nswer pertinent questions on Fifth Amendment grounds justifi ed a permissive inference tha t: “(a) if she had answered truthfully, the answe rs would have been unfavorable to her; or (b) would have corroborated testimony given by the opposing side’s witnesses o n the subject matter of the questions[.]” Id. at 631 (internal citations omitted). See also Lappe & Assocs., Inc.
v. Palmen , 811 S.W.2d 468, 471 (Mo. App. E.D. 1991); Bull v. Bull , 634 S.W.2d 228, 230 n.1 (Mo. App. E.D. 1982). As a result, Mother’s claim on a ppeal that Instruction Number 4 0 should not have been given because “it was an improper inference” fails. 11 Point 7 is denied. Point 2 – Submissibility Defendants’ second point claims ( in toto ): The trial court erred in denyi ng Defendants’ motions for a dire cted verdict and new trial regarding Plainti ffs’ false imprisonment count be cause Plaintiffs did not make a submissi ble case in that the evidence demonstrated that [the children] were never restrained against their will. For the reasons stated in our ana lysis of the substantive law a t issue in resolving Defendants’ challenge on this sa me basis to the modified MAI in struction given by the

11 Mother did not object on the ground that giving an adverse inf erence instruction to the jury is improper under any circumstances. Father argues that Instruction No. 40 was a proper clarifying instruction in response to Mother’s misstatemen t of the law to the jury during voir dire . Because of the narrow basis of Mother’s objection, we need not determine whether a misstatemen t of the law during voir dire would justify the use of an adverse-inference instruction. In genera l, a trial court should refuse such a request. See Marmaduke v. CBL & Assocs. Mgmt., Inc. , 521 S.W.3d 257, 270 (Mo. App. E.D. 2017); Berger v. Copeland Corp., LLC , 505 S.W.3d 337, 338-39 (Mo. A pp. S.D. 2016). “The prohibitio n against such an instruction is based upon the pr inciple that the trial court sh ould not comment o n the evidence.” Berger , 505 S.W.3d at 339 (citing Hartman v. Hartman , 284 S.W. 488, 489 (Mo. banc 1926)). See also Pisoni v. Steak ‘N Shake Operations, Inc. , 468 S.W.3d 922, 928 (Mo. App . E.D. 2015) (While a party may a rgue the adverse inference to the jury, the party is not entitled to a jury instruction addressing the issue).18 trial court, Point 2 also fails. 12 Points 3–6: Standard of Review Defendants’ points three through s ix claim the trial court abus ed its discretion in either admitting or refusing to a dmit certain evidence. While we address the law applicable to each point as neces sary, all four are subject to the following standard of review. “The admissibility of evidence lies within the sound discretion of the trial court and will not be disturbed absent abuse of discr etion.” Nelson v. Waxman, 9 S.W.3d 601, 603 (Mo. banc 2000). This standard gives the trial court “broad l eeway in choosing to admit eviden ce,” and its exercise of discretion will not be disturbed unless it “‘is cle arly against the logic of the circumstances and i s so unreasonable as to indicat e a lack of careful consideration.’” State v. Freeman, 269 S.W.3d 422, 426-27 (Mo. banc 2008), quoting, State v. Forrest, 183 S.W.3d 218, 223 (Mo. banc 2006). In part, such broad leeway is granted to ensure the pro bative value of admitted evidence outweighs any unfair prejudice. Freeman, 269 S.W.3d at 427, quoting, State v. Anderson, 76 S.W.3d 275, 276 (Mo. banc 2002). “For evidentiary error to cause reversal, prejudice mus t be demonstrated.” State v. Reed, 282 S.W.3d 835, 837 (Mo. banc 2009).
Mitchell v. Kardesch , 313 S.W.3d 667, 674-75 (Mo. banc 2010). Point 3 – The Dissolution Judgments Point 3 claims: The trial court erred in admitting detailed dissolution orders from a previous case into evidence a nd in allowing them to be read by the jury, because they were unfairly prej udicial and consisted of or at l east

12 The argument following Point 2 also claimed that “there was no false imprisonment because there was [no] evidence at trial of any re straint.” Because this claim i s not contained in the point relied on, we do not address it. C.S. v. Missouri Dep’t of Soc. Servs. , 491 S.W.3d 636, 656 (Mo. App. W.D. 2016) Even if it had been included, the uncontested testimony at trial was that the children – far too young to drive – were shuttled between homes and apartments in various states by Moth er, Grandparents, and Grandparents’ friends. The children did not know where they were or why they were there, and they had few personal belongings. They were often taken to remote and isolated areas far from any town. WM testified that their family did not have a car, and th e children were not free to go outside and walk around or do things on their own. During their time on the run, the children did not attend school or have friends, and they were made to disguise themselves and use false names in order to evade th e authorities Defendants knew were looking for them. A reasonable juror coul d find from this evidence tha t resistance or atte mpted flight by the children would have been futile, a nd they were not free to leav e the various circumst ances in which they found themselves.19 contained impermissible hearsa y, in that the orders contained d etailed and disparaging factual findings about [D]efendants and recited spe cific hearsay testimony of third partie s such as Plaintiff[s’] expert witness in the dissolution case. The referenced evidence was received as e xhibits 4 and 5, respe ctively, the dissolution judgment and the AMENDED JUDGMENT, ORDER, AND DECREE OF
DISSOLUTION OF MARRIAGE

. 13 Those judgments, as previously noted, were highly critical of Mothe r and Grandparents. Defendants rely heavily upon Gamble v. Browning , 379 S.W.3d 194 (Mo. App. W.D. 2012), in arguing that “the c onsensus among courts is to e xclude judicial opinions because of the risk of undue prejudice.” Id. at 203. Defendants acknowledge, however, that Gamble starts from the premise that “ when the record in another case f orms an essential element of a party’s claim or defense, the record its elf must be introduced in evidence, absent an admission of its contents by the opposing p arty.” Id. at 201 (quoting Chandler v. Hemeyer , 49 S.W.3d 786, 791-92 (Mo. App. W. D. 2001)). Further, the judge’s order at issue in Gamble “applied legal concepts and standards inapplicable” to the case being tried. 379 S.W.3d at 202. Despite that acknowledgement a nd distinction, Defendants argue that the dissolution judgments were not adm issible here as Defendants we re willing to stipulate that their conduct violated the legal effect of the order in th e dissolution j udgment that gave Father custody of t he children. Defendants argue that it was overly prejudicial to admit the dissolution judgment i n its entirety because it “bera t[es]” Mother and casts aspersions on Mother and Grandpare nts for violating court order s. Defendants also

13 The AMENDED JUDGMENT, ORDER, AND DECREE OF DISSOLUTION OF MARRIAGE was entered after Mother took th e children and it awarded Fathe r sole physical and sole legal custody with no visitation for Mother.20 object to the admission of the di ssolution judgment because it recites hearsay testimony, such as that of Dr. Ann Duncan ( “Dr. Duncan”), who predicted th at Mother would “cut off and reject anyone not taking her side[.]” It is well-established that a tr ial court may take judicial not ice of the relevant records and files of other proceedings. Manz v. Manz , 805 S.W.2d 183, 185 (Mo. App. E.D. 1990) (court in dissolution action may take judicial notic e of evidence adduced in previous adult abuse proceeding); Hoekstra v. Jenkins , 730 S.W.2d 263, 267 (Mo. App. E.D. 1987) (trial judge in civil wrongful death action properly noticed record in criminal case involving decedent). In fact, our high court has even con templated that findings in a divorce decree might be used as evidence of spousal misconduct in a later tort proceeding between the parties. In its opinion abolishing inter-spousal i mmunity for negligence actions, S.A.V. v. K.G.V. , 708 S.W.2d 651 (Mo. banc 1986), th e Court noted that to the extent that conduct of the spouses is taken into account in division of marital property [. . .], the dissolution decree might be ad missible in the subsequent tort action subject t o usual constraints of relevanc e, competence and with a careful e ye to questions of causation and speculativeness of damages. The same may hold true for the dis solution proceeding if that action follows trial of the tort claim.
Id. at 653. Regarding relevancy determinati ons, Defendants admit that the d issolution judgment was certainly logically r elevant to the issues at tria l. While Defendants argue that the dissolution judgment was only relevant in regard to th e legal effect of the custody order, i.e. that it awarded Father cust ody of the children, they fail to r ecognize that the dissolution judgment was also rel evant to Defenda nts’ justifica tion defense. Defendants claimed they were ju stified in absconding with the c hildren for three years based upon their sincere be lief that Father had molested WM. However, as Father21 points out, Defendants’ justifi cation defense would be measured by an objective standard -- the belief of a reasonable pe rson under similar circumstance s at the time Mother absconded with the children. See Cohen v. Metropolitan Life Ins. Co. , 444 S.W.2d 498, 506 (Mo. App. St.L.D. 1969) (in a vexatious refusal case, the i nsurer must have knowledge of facts supporting its d efenses at the time it shoul d have paid – it cannot rely on potentially favorable facts th at might be discovered later). 14 Defendants were familiar with the contents of the di ssolution judgment and would have kn own at the time of the abduction that the tri al judge in that case (“the dissolution c ourt”) had concluded that there was no credible evidence t o support Mother’s sexual abuse allegations. The jury could rightly consider this in formation in deciding whether Def endants’ actions were reasonable at the time they were taken. Defendants note in their brief t hat “[m]ost of the dissolution [judgment] consists of factual findings . . . that info rm [the dissolution court]’s decision to give custody to [Father].” Like the trial in t his case, the dissolution trial appears to have focused heavily upon whether Father had abused W M. The factual findings contai ned in the dissolution judgment constituted probative evidence of whether Defendants’ beliefs were reasonable. Further, many of the factual fi ndings contained in the dissolut ion judgment about which Defendants complain were already before the jury. Dr. Du ncan’s prediction that Mother would cut off and reject anyone not taking her side was precisely what Mother actually did after the dissoluti on court issued its judgment, a nd Mother absconded with the children for a period of t hree years. The dissolution cour t awarded custody to Father in part because it was “convinced ” that Mother would not comply with court orders in the

14 Counsel for Defendants agreed during oral argument that an obj ective standard applied to Defendants’ justification defense.22 future and would “refuse any effort to allow [Father] to see hi s children”; predictions that were followed by those very actions . Prejudicial error does no t exist when the complained-of evidence was cumulative to other properly-admitte d evidence. Martin v. Mercy Hosp. Springfield , 516 S.W.3d 403, 406 (Mo. App. S.D. 2017). In summation, Defendants have fai led to cite any authority for their claim that the trial court abused its discret ion in receiving in to evidence re levant prior judgments such as those at issue here, and we are unaware of any such authorit y. Point 3 is denied. Point 4 – Dr. Duncan’s Written Report Point 4 claims the trial court erred in admitting into evidence the written report of Dr. Duncan (an expert in chil d psychology) and allowing the jur y to read it because the report was prejudicial in that it contained disparaging stateme nts about Defendants as well as hearsay. 15 Dr. Duncan became involved with the parties when the dissolutio n court appointed her to perform “a fa irly thorough evaluation of [Moth er]” to assess her ability to co-parent, any mental condi tion that she might have, her abi lity to perceive and report information, and any personality traits or other disorders that she might have. When Father volunteered to be similarly evaluated, Dr. Duncan perfor med that evaluation as well. She concluded from her eval uations that Father was an ap propriate and sturdy parent, that Mother would have difficulties co-parenting, and t hat if Father were awarded custody, Mother would have difficu lties complying with the cour t’s order. Dr. Duncan was not involved with the parties again until August 2012, when the children were returned from Kans as. At that point, Dr. Duncan was asked to help Father

15 As Father notes, Defendants did not object to Dr. Duncan’s liv e testimony about the conclusions in her report. They only dispute the admission of her written report and its eventual publication to the jury.23 and the children transition back i nto a “normal” life together. She also performed educational testing to support re commendations about the grade levels into which the children should be placed. Dr. Dun can also prepared a report s etting forth her psychological assessments of the children as of March 2017. Dr . Duncan described her written report as “set[ting] fo rth the nature of the investigat ion and the opinions [she] reached in this case[.]” During her direct examination, Dr . Duncan testified that based upon her extensive testing and interviews with the children, in her 50 years of wo rking with traumatized children, WM and OM were “badly traumatized in so many differen t ways[.]” She believed that both boys qualified f or a diagnosis of post-traum atic stress disorder. OM also had a secondary diagnosis of a djustment reaction with mixe d features, and WM a secondary diagnosis of a nxiety disorder. During her direct testimony, Plain tiffs sought to introduce the written report as Exhibit No. 7. Defendants objec ted to its admission on the gro und that it was inappropriate to admit the report of a testifying witness and i t contained inadmissible information, including hearsay. Def endants stated that they ha d “no problem” with Dr. Duncan “referring to the report and testifying to [its] conclus ions[,]” but they argued that if the report went to the jury, it would “substitute for potent ial testimony.” Plaintiffs contended that they were “try ing to avoid having to read 21 pag es of her report into the record[.]” When the trial court asked Plaintiffs if they inten ded to ask permission to publish the report to the jury, t hey answered “I don’t anticipa te it at this time, Judge. I may refer to pieces of it in closing argument. That’s what [si c] why I want to admit it, so at least I can argue those issu es without having to have it all read in.” The trial court24 overruled Defendants’ objections a nd received the report into e vidence. Father did not ask to publish the report to the jury until Plaintiffs presente d rebuttal evidence in the

case. 16 During their case-in-chief, D efendants presented testimony fro m their own expert, Dr. Rosalyn Schultz (“Dr. Schu ltz”), a licensed psychologist. Dr. Schultz did not interview the children. The only opinion testimony Dr. Schultz provided at trial was a critique of Dr. Duncan’s repor t and the methodologies she had u sed. She merely opined that “all of Dr. Duncan’s work [] does not indicate that there i s sufficient evidence that the[] children were harmed.” Dr. Schultz referred to and testi fied about Dr. Duncan’s report extensively, and she gene rally opined that Dr. Duncan’s report lacked credibility, and her findings, including her pos t-traumatic stress diagnoses , were unfounded and were actually contradicte d by the testing Dr. Duncan had performed. It was not until after Dr. Schultz had critiqued Dr. Duncan’s report that Plaintiffs asked to publish it to each member of the jury. Defendants concede that much of the report is based upon statem ents made by the parties, all of whom were at tr ial, and -- with the exception o f Mother -- were available for cross-examination. But Defe ndants complain about other spe cific portions of the report, namely: (1) Dr. Duncan ’s reliance on unidentified hear say to “pass judgment” on Defendants and undermine their cr edibility, including a history of being arrested at abortion clinic prot ests, and a “cult-like dedication to person al beliefs”; and (2) Dr. Duncan’s statement that Defenda nts planned the abduction in adv ance.

16 The admission of Dr. Duncan’s report was of no consequence unti l it was seen by the jury. Davolt v. Highland , 119 S.W.3d 118, 132-35 (Mo. App. W.D. 2003).25 A review of the transcript reveal s that the alleg edly irrelevan t and prejudicial portions of the report about whic h Defendants complain were act ually raised by Defendants during their cross-ex amination of Dr. Duncan. “Miss ouri law is settled that a party may not complain about evide nce introduced into the case through his attorney’s questions or conduct.” State v. Eighinger , 931 S.W.2d 835, 838 (Mo. App. W.D. 1996). The general tenor of Defendant s’ cross-examination was to portr ay Dr. Duncan as a biased witness who believed Moth er and Grandparents were cult -like fanatics wedded to their extreme beliefs. Defen se counsel cross-examined Dr. D uncan about the references in her report to D .E.N., who had protested with Moth er’s sister outside of abortion clinics. Defense counsel asked Dr. Duncan at length a bout her indication that Mother’s family had an emotional theme running through it that “men will betray your trust.” He questioned her about D .A.N.’s affair and D.E.N.’s t aking Mother out of state as a young child because of it. D efense counsel also questione d Dr. Duncan about her statement that Mother’s “only safety is in religion.” Dr. Schultz’s testimony again put D r. Duncan’s report at issue when she opined on the illegitimacy of the repor t and critiqued and undermined all of Dr. Duncan’s methodologies and diagnoses. It wa s not until after Defendants had presented all of this evidence that Plaintiffs aske d for and received permission to p ublish the report to the jury. Defendants put the contents of D r. Duncan’s report at issue wit h both Dr. Schultz’s testimony and with their own cross-examination of Dr. Duncan. Under these circumstances, we conclude tha t the trial court’s decision to a llow Plaintiffs to publish the report to the jury was not so “cl early against the logic of the circumstances and is so26 unreasonable as to indicate a l ack of careful consideration.” Forrest , 183 S.W.3d at 223 (quoting State v. Gonzales , 153 S.W.3d 311, 312 (Mo. banc 2005)); Eckerd v. Country
Mut. Ins. Co. , 289 S.W.3d 738, 744 (Mo. App. E.D. 2009) (quoting Bowls v. Scarborough , 950 S.W.2d 691, 702 (Mo. App. W.D. 1997) (“[a] party who has introduced evidence concerni ng a certain fact may not on appeal complain that his opponent was allowed to introduce related evidence, in rebuttal or explanation”)). Point 4 is denied. Point 5 – WM’s Out-of-Court Statements Point 5 claims: The trial court erred in refus ing to allow Defendants to offer evidence of certain of [WM]’s statements reg arding sexual abuse by [F]ather and in refusing to allow him to be cross-examined regarding those stat ements, because those statements were party admissions and prior incons istent statements and upon which Defenda nts should have been allowed t o crossexamine, in that [WM]’s testimony at trial was that he had neve r been abused by [F]ather and he did not r emember making the statement s. We disagree. “The trial court has sound discre tion with respect to the admis sibility of evidence and over the extent and scope of c ross-examination in civil act ions.” Dieser v. St. Anthony’s Med. Ctr. , 498 S.W.3d 419, 434 (Mo. banc 2016). “[W]e will not reverse a judgment unless we find that an e rror ‘materially affected the merits of the action[,]’” meaning the improper admission or exclusion of evidence was out come-determinative. Reed v. Kansas City Mo. Sch. Dist. , 504 S.W.3d 235, 240 (Mo. App. W.D. 2016) (internal citations omitted). Defendants assert that WM made statements to professionals and nonprofessionals, family members and non-family members, the conte nt of which varied, but27 in general included: “[t]hat [F]ather touched his ‘root,’ or p enis; [t]hat [F]ather was a bad man who hurt him; [t]hat he did not want to see or be around [F ]ather”; and that “[F]ather had touched [WM’s] penis and butto cks inappropriately.” Defend ants argue that the specific statements made to Child ren’s Division investigators w ere “particularly important because they were mad e to completely independent part ies.” Defendants do not argue how they were prejud iced by their exclusion, other th an to say that it was “extremely prejudicial” for the t rial court to deny cross-exami nation on those specific

statements. The following exchange that occu rred between WM and his lawyer at trial is relevant to the reso lution of this point. [Counsel:] Did your mom ever gi ve you any reasons for why she w as hiding from your dad? [WM:] Yes. [Counsel:] And what was that? [WM:] That she didn’t want us to be with him because of she sai d that I told her that he abused me. [Counsel:] Okay, and you understand that there’s going to be testimony in this case--well, that you told a variety of stories-- [WM:] Yes. [Counsel:] --about--let me f inish my question. You understand there’s going to be testimony in this case that you told a variety of stories about bad acts of your dad, beginning back in 2005 or 2006? [WM:] Yes. [Counsel:] Do you remember a ny--telling anybody those--do you specifically remember telling me these stories?28 [WM:] No. [Counsel:] How [old] woul d you have been in 2005-2006? [WM:] Um, three. [Counsel:] You turned four sometime in 2006? [WM:] Yes. [Counsel:] That would have b een about twelve years ago? [WM:] Yes. [Counsel:] Now, before preparing for your testimony today, prep aring the testimony to come to court , did you have a recollection of ever making those specific statements? [WM:] No. [Counsel:] In preparing for court, did you go back and look at some of the records from back in 2006? [WM:] Yes. [Counsel:] As you sit here today, are you denying that you may have told those stories to people? [WM:] No. [Counsel:] You are not denying tha t you might have told someone that your dad shot a woman in the woods? [WM:] No. [Counsel:] Or that he touched your penis? [WM:] No. [Counsel:] Or that he watched c hild pornography with his sister in the room? [WM:] No. [Counsel:] Did any of those happen?29 [WM:] No. On cross-examination, defense coun sel began to question WM abou t the content of specific statements he had mad e to third parties about what Father had allegedly done to him. WM maintained that he had no recollection of making th ose statements. When defense counsel began to questi on WM about a specific statement he made in January 2006, WM’s attorney objected that th e questioning violated the court’s ruling on a motion
in limine . Defendants argued that, because WM had said he did not remem ber making the statements, they were allowe d to “test his re collection” an d that the statements went to bias and prejudice. The trial court sustained the objection and refused to allow any questioning about specific statements that WM had allegedly mad e to third parties. Defense counsel then questioned W M about the alleged abuse in g eneral -- asking him whether he remembered speak ing with certain i ndividuals abo ut the abuse and whether he remembered telling t hem “that my dad had touched me and stuff like that.” WM again insisted that he ha d no recollection of the abuse or o f making any statements about it, but he did say that he did not know why he would lie about it, other than the fact that he “was so little at that age that [he] had no idea if it was a lie or what it was because [he didn’t] even remember.” Defendants have failed to estab lish that the trial court’s ruli ng on the permissible scope of cross-examination of WM re sulted in reversible error. “An erroneous evidentiary ruling warrants re versal ... only when it affects t he result or the outcome of the case[.]” Dieser , 498 S.W.3d at 435 (internal cita tion omitted). “The exclusio n of cumulative evidence is not cons idered prejudicial on appeal.” Adkins v. Hontz , 337 S.W.3d 711, 720 (Mo. App. W.D. 2011) . In this case, the jury h eard time and again that30 WM had made previous accusations to “a number of different peop le” that Father had sexually abused him. The jury hear d evidence that WM had alleg ed that Father had touched WM’s “root,” had forced W M to put Father’s “root” in hi s hands, that Father had put WM’s “root” in Father’s mout h, that Father had touched and hurt WM’s buttocks, and that Father had put his root i n WM’s buttocks. The jury al so heard that WM had accused Father of watching chi ld pornography with Father’s sist er. Thus, the jury heard extensive t estimony on WM’s allegations of abuse against Father and specific details of what Father had allegedly done. The jury knew that WM had made these allegations to sta te investigators and family me mbers alike, and counsel for Defendants referenced them in closing arguments. Therefore , the exclusion of WM’s specific statements to specific individuals would have been cum ulative to evidence already in the case, and its ex clusion could not have been outc ome-determinative. Id. Point 5 is denied. Point 6 – Testimony by the Guardian ad Litem (“GAL”) Defendants’ sixth point claims: The trial court erred in allow ing the [GAL] from the dissolutio n case to testify as to her opinion on whether or not sexual abus e had occurred and in disallowing defense counsel to cross-examine her regarding documents she utili zed to formulate her opinions, bec ause her testimony was prejudicial and imp ermissible lay witness testimo ny, in that her opinions invaded the province of the jury and defense couns el were denied their right t o cross-examine her regarding documents upo n which she based her opinions. (Emphasis added.)[ 17 ] During his case-in-chief, Father called the GAL in the parties’ dissolution case, Katie Anderson. The point of Ms . Anderson’s testimony was to g ive the jury her opinion

17 Defendants’ point, which includes more than one issue, is mult ifarious and preserves nothing for our review. City of Joplin , 522 S.W.3d at 330. However, w e exercise our d iscretion to re view Defendants’ point ex gratia

. Id. at 331.31 that Father had not sexually abus ed WM. Prior to her testimony , Defendants objected on the basis that: (1) Ms. Anders on may testify to evidence which had been excluded under the previous motions in limine , such as interviews with the Children’s Division; and (2) “calling her is something like an expert witness . . . but it i sn’t an expert witness that this court needs or this jury shoul d have.” Plaintiffs responded th at they were only offering Ms. Anderson’s testimony to show the reasonableness (or lack th ereof) of Defendants’ actions in taking the childre n, and they did not intend to cove r any evidence that had been excluded by the trial cour t’s ruling on the motion in limine . The trial court allowed Ms. Anderson’s testimony, subj ect to that limitation. Ms. Anderson testified that, as pa rt of her role in the dissolu tion case, she interviewed Mother and Father a nd reviewed all the documents th ey gave her. She also investigated concerns about abus e or neglect and reported her f indings to the dissolution court. Ms. Anderson testified th at her recommendations to the dissolution court were as follows. So my report to the court include d that I did not feel that WM had been sexually abused. I made a recommendation to the court tha t included proposals if the court did find t hat sexual abuse [had] occurre d. . . . and then I made a second alternative recommendation in the event th at the court agreed with my report and a lso concluded that there was n o sexual abuse. Ms. Anderson’s direct testimony c onsumed only six pages of tria l transcript. After her direct examination was completed, Defendants argued t hat Ms. Anderson had testified about her opinion, and Defendants should be allowed to question her about the bases for that opi nion, including the contents of specific documents that she had reviewed, some of which contai ned the statements of abuse t hat WM had made to third parties. Father’s counsel responded that the bases for t he GAL’s opinion were32 irrelevant because her opinion was only relevant to the extent that it shed light on what Defendants knew at the time th ey took the children, thus sheddi ng light on whether Defendants’ belief that WM had b een sexually abused was reasona ble. The trial court believed that t he documents Ms. Anderson relied upon in reaching her opinion were covere d by the previous motion in limine , and it refused to allow Ms. Anderson to be questioned about t hem. The trial court did, how ever, allow Defendants to question Ms. Anderson about which documents she had reviewed in forming her opinions; it only barred questions a bout specific statements co ntained in those documents. Ms. Anderson testifie d that she had reviewed, among other documents, Children’s Division records, inc luding progress notes and inter views its employees had conducted. To obtain a reversal under this point, Defendants must demonstr ate that they were prejudiced by the admissi on of Ms. Anderson’s testimony. Babb v. Pfuehler , 944 S.W.2d 331, 336 (Mo. App. S.D. 1997). A s in Point 5, Defendant s’ inability to do so is fatal to their claim. The jury he ard from several sources that WM’s allegations of abuse against Father had been unsubsta ntiated by the relevant authori ties, and they w ere told as early as opening statements that “DFS [a previous acronym for w hat is now the Children’s Division] eventuall y unsubstantiated the case.” Mos t importantly, the jury was aware that Father had bee n given custody of the children in the divorce – leading to a reasonable inference that t he dissolution court had not found F ather to be an abuser. As earlier noted, the jury als o saw the dissolution judgment it self, which contained an explicit factual fi nding that “no credible evidenc e that any act of abuse by [Father had] occurred.” The dissolution judgment also recounte d that the allegations of33 sexual abuse had been investigate d by the Children’s Division a nd were found to be unsubstantiated. Finally, Dr. Dun can testified that her testin g revealed that Father was “appropriate, sturdy emotiona lly. . . . There was [sic] no war ning signs that he was a pedophile, or a pervert, or a pornography addict, or had a pers onality disorder.” Regarding Defendants’ inability to cross-examine Ms. Anderson o n the specifics of the documents she rev iewed, that complaint fails f or the same reasons we articulated in our analysis of Point 5. The jury already kn ew many specifics about WM’s allegations of abuse , along with the fact that they had been investigated and documented by the r elevant authorities. And t he trial court allowed Defendants to ask Ms. A nderson whether she had reviewed those documents. Defendants also effectively cast doubt upon Ms. Anderson’s opin ions by eliciting admissions from her on cross-examination that: (1) s he wrestled with the decision of whether any sexual a buse had occurred; (2) there we re two sides to the story; and (3) she could not say f or certain that no sexual abu se had occurred. Again, Defendants have failed to s how that the trial court’s li mitation on the questions Defendants could ask t he GAL was outcome-determinativ e in this case. Defendants’ sixth point is als o denied, and the judgment of the trial court is affirmed.

DON E. BURRELL, P.J. – OPINION AUTHOR
NANCY STEFFEN RAHM EYER, J. – CONCURS GARY W. LYNCH, J. – CONCURS