C.a.W. v. Weston

• Decision Date: 31 October 2001
• Docket Number: SD23830
• Parties: C.A.W., by Next Friend Rollie Welch, and Rollie Welch, individually, Petitioners/Respondents v. Jamie Weston, Respondent/Appellant. SD23830 Missouri Court of Appeals Southern District
• Court: Missouri Court of Appeals

C.A.W., by Next Friend Rollie Welch, and Rollie Welch, individually, Petitioners/Respondents v Jamie Weston, Respondent/Appellant

SD23830

Missouri Court of Appeals Southern District

10/31/2001

Appeal From: Circuit Court of Barry County, Hon. Michael D. Garrett

Counsel for Appellant: Susan F. Butler

Counsel for Respondent: W. Henry Johnson

Opinion Summary: None

Montgomery, J., and Barney, C.J., concur.

Kenneth W. Shrum, Presiding Judge

In this paternity suit brought by Rollie Welch ("Father"), the trial court awarded him custody of the subject child, C.A.W. ("C.A.W."). Jamie Weston ("Mother") appealed. Her single point relied on alleges that the "change of circumstances" requirement of section 452.410, RSMo (2000), was implicated in the suit, but the trial court made no findings regarding any such changes, and Father never proved a change of circumstances.¹ With this as her premise, Mother asserts the trial court erred when it awarded custody of C.A.W. to Father. We affirm the judgment of the trial court.

STANDARD OF REVIEW

The trial court's award of custody 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. Edmison v. Clarke, 988 S.W.2d 604, 607 (Mo.App. 1999). "In reviewing the judgment of the trial court in a paternity action, this court looks to the evidence that supports the judgment and disregards that which is unfavorable to the judgment." Shadwick v. Byrd, 867 S.W.2d 231, 235 (Mo.App. 1993). Furthermore, the trial court is given broad discretion in child custody matters, and its decision will be upheld unless we are firmly convinced the welfare and best interests of the child requires otherwise. Edmison, 988 S.W.2d at 608.STATEMENT OF FACTS

After Father and Mother lived together for a period of time without being married, Mother gave birth to C.A.W. on May 20, 1997. They remained unwed, began to have problems with their relationship, and quit living together in December 1997. Upon separating, Father "packed up and left" taking C.A.W. with him. Apparently, Mother then sought and obtained custody of C.A.W. via a habeas corpus proceeding. Father was accorded a visitation privilege with C.A.W. on alternate weekends.

After the habeas corpus order was entered, Father filed this paternity suit in January of 1998. In addition to seeking a declaration that he was the father of C.A.W., Father sought custody of C.A.W. Between the filing of this suit and entry of judgment in July of 2000, numerous disputes and allegations arose between the parties. We need not detail all of these differences; suffice it to say evidence existed to support a finding that Mother changed residences on numerous occasions without informing Father, Mother unilaterally altered the visitation schedule, and physical abuse was committed upon C.A.W. while in Mother's care.

The trial court found Father was the biological parent of C.A.W., and that it would be in the best interest of C.A.W. if Mother and Father were awarded joint legal custody. Father was awarded physical custody with Mother receiving visitation rights. Mother appeals from that part of the judgment that gave Father physical custody of C.A.W.

DISCUSSION AND DECISION

Preliminarily, we consider Father's assertion that Mother has not followed appellate court briefing requirements mandated by Rule 84.04 and that her appeal should be dismissed for such violations.² Father's complaint about a non-complying brief is meritorious; the brief is wholly deficient. Without detailing the many deficiencies in Mother's brief, we note they clearly warrant dismissal of Mother's appeal. We choose, however, not to do so because issues of child custody exist. See In re Reeder, 946 S.W.2d 1, 6 (Mo.App. 1997); Harbaugh v. Harbaugh, 472 S.W.2d 449, 451 (Mo.App. 1971).

Mother's sole point and argument on appeal maintains the trial court erred when it treated this paternity case as an initial custody proceeding and awarded Father custody of C.A.W. by using only the "best interests" analysis per section 452.375.2. She argues that a "prior custody decree" existed in this case via the habeas corpus order; consequently, she insists that Father, in this paternity suit, had to also prove a change of circumstances

within the meaning of section 452.410 as a precursor to being awarded custody of C.A.W.³ Based on this premise and her claim that Father never proved a change in circumstances, Mother insists the trial court erred in awarding Father physical custody of C.A.W.

We digress briefly and observe that to find merit in Mother's claim would require us to convict the trial judge of an error regarding an issue that was never brought to his attention. Although Father's pleading in the paternity case alleged that the best interests of C.A.W. would be served if he was given custody of her, it contained no "change of circumstances" allegations. Mother answered Father's paternity petition and generally denied his "best interest" allegations. She did not, however, challenge Father's petition request for custody by filing a motion to dismiss nor did she otherwise affirmatively defend on the basis that Father's petition, to the extent it sought custody, was fatally defective due to the absence of change of circumstances allegations. Mother never advised the trial judge, either during the course of the paternity trial or in her post-trial motion, of the claim she now makes on appeal, i.e., that the habeas corpus order was a "prior custody decree" within the meaning of section 452.410.

Mother's only post-trial complaint about the trial court's custody decision reads as follows: "The Court's award of custody, temporary custody and visitation is not in the best interests of the minor child. Further, the custody award is against the weight of the evidence, is not supported by sufficient evidence, constitutes an abuse of discretion, and misapplies the applicable law." Such general allegations, whether in a post-trial motion or otherwise, preserve nothing for appeal, especially when, as here, Mother never at any time gave the trial court a clue of her claim that a "prior custody decree" existed within the meaning of section 452.410. See, e.g. Walsh v. St. Louis Nat. Baseball Club, 822 S.W.2d 559, 563 (Mo.App. 1992); Hartley v. Matejka, 585 S.W.2d 240, 242 (Mo.App. 1979). Since Mother never gave the trial judge a chance to address the question she now raises on appeal, her point is not preserved for our review. State ex rel. Nixon v. American Tobacco Co., Inc., 34 S.W.3d 122, 129 (Mo. banc 2000); Pruitt v. Community Tire Co., 678 S.W.2d 424, 429 (Mo.App. 1984). Even so, we opt to examine Mother's point under the plain error standard of Rule 84.13(c) because it is a child custody case.⁴

In analyzing whether the earlier "habeas corpus order" in this case was a "prior custody decree" within the meaning of section 452.410 (as Mother contends), we keep in mind that section 452.410 never comes "into play, unless and until there has been an initial determination of custody pursuant to section 452.375." State ex rel. Dept. of Soc. Serv. v. Maher, 976 S.W.2d 75, 79 (Mo.App. 1998). Accordingly, unless this record shows that the habeas corpus court made a "determination of custody pursuant to section 452.375[,]" that is, made a "best interests" analysis, Mother's argument must fail.No part of the file in the habeas corpus case was placed in evidence in this paternity case, either as an exhibit or via judicial notice. The only evidence adduced about the habeas corpus proceeding was as follows:

"Q. [To Father] . . . [T]here was a writ of habeas corpus issued out of this court; is that correct?

"A. That is correct, sir.

"Q. And because there was no order that you were the biological father, then custody at that time was provided to the mother, is that true?

"A. That is correct.

"Q. And you were granted visitation rights at that time?

"A. I was granted alternate weekends."

. . . .

"Q. [TO MOTHER] [I]s that when you filed your writ of habeas corpus to get--

"A. Yes.

"Q. -[C.A.W] back?

"A. Yes.

"Q. Did [Father] get visitation with [C.A.W.] after she was returned to you?

"A. Yes."

This, however, is not evidence that compels a finding, as a matter of law, that the habeas corpus court did a section 452.375 "best interest" analysis and thus require that Father show a change of circumstances in his paternity suit. This follows because, although habeas corpus is a "conventional remedy" available to a natural parent to regain custody from a third person "where there has been no prior adjudication of custody in any legal forum[,]" State ex rel. Busch by Whitson v. Busch, 776 S.W.2d 2d 374, 375 (Mo.banc 1989), and although decisions about "custody, visitation and support are not only within the scope of habeas corpus proceedings where the petitioner is alleged to be unfit, but may be necessary for resolving the basic issue of how to best serve the interests of the child," Id. at 76, nothing in this record reveals what issues were present in the habeas corpus case. Depending upon what issues were raised in the habeas case, a custody order favorable to Mother could have been entered there without deciding Mother's fitness, C.A.W's welfare, or the "best interests" of C.A.W. This is so because at the time of the habeas corpus proceeding, there existed a "parental presumption" that custody of C.A.W. should be awarded to Mother.⁵ The presumption existed because Father's paternity of C.A.W. had not been adjudged; consequently, his status was no more than that of any third-party having physical custody of C.A.W. without a lawful custody order. Thus, for Father to have prevailed in the habeas corpus case, he would first have had to prove that either (1) Mother was unfit, Jones, 10 S.W.3d at 535-36, or (2) show there existed special or extraordinary concerns about the welfare of the child which demanded that Fa...