Galeener v. Black, 11512.

• Decision Date: 12 November 1980
• Docket Number: No. 11512.,11512.
• Citation: Galeener v. Black, 606 S.W.2d 245 (Mo. App. 1980)
• Parties: Linda Kay (Black) GALEENER, Plaintiff-Appellant, v. Russel Alan BLACK, Defendant-Respondent.
• Court: Missouri Court of Appeals

606 S.W.2d 245

Linda Kay (Black) GALEENER, Plaintiff-Appellant, v. Russel Alan BLACK, Defendant-Respondent.

No. 11512.

Missouri Court of Appeals, Southern District, En Banc.

September 10, 1980.

Motion for Rehearing or to Transfer Denied September 25, 1980.

Application to Transfer Denied November 12, 1980.

Charles (Ed) Lee, Walker, Salveter & Stoner, Springfield, for plaintiff-appellant.

Jay P. Cummings, Springfield, for defendant respondent.

Motion for Rehearing or to Transfer to Supreme Court Denied September 25, 1980.

GREENE, Judge.

Plaintiff and defendant were formerly husband and wife. They were divorced in December of 1973, at which time plaintiff was awarded custody of their only child, a son, Dwayne Alan Black, who was born on November 8, 1967. Plaintiff was also awarded $75 per month as child support, and defendant was awarded reasonable visitation rights.

On March 19, 1979, plaintiff filed a motion to modify the decree in regard to child support, requesting that the amount be raised to $300 per month. Defendant filed an answer to the motion to modify, and also filed what is denominated as a counter-petition. In the counter-petition, defendant asked for custody of his son, who was now 11 years old. He alleged, among other things, that there had been a substantial change in the circumstances of the parties since the date of the divorce in that 1) his son desired to live with him and not with his mother; 2) he could provide proper care and supervision for the child; and, 3) plaintiff was engaged to marry a man residing in the state of California, which marriage would result in her leaving the jurisdiction of the state of Missouri and moving to California, against the wishes of the child, the defendant, the paternal and maternal grandparents, and against the best interest of the child.

On May 25, 1979, defendant filed for a temporary restraining order, which order is not a part of the record. We assume that it was a request for the court to prohibit plaintiff from removing the child from the state of Missouri, unless she was given permission to do so by the court. Evidently, by agreement of the parties, the motion for a temporary restraining order was disposed of by a court order permitting plaintiff to take the child with her to California on May 29, 1979, and ordering her to return the child to respondent, in Springfield, Missouri, by July 8, 1979, so that the child could be with his father until July 25, 1979, which was the date set for the hearing on the motions to modify.

The hearing was held on that date, continued for further testimony until July 30, 1979, and was concluded on that date. The transcript indicates that eleven witnesses were heard. Their testimony covered 197 transcript pages, 34 of which concerned the testimony of the child, who was questioned in the chambers by the trial judge and by the attorneys for both parties.

On August 10, 1979, a decree and judgment was rendered. In the judgment, the trial judge overruled plaintiff's motion to increase child support, and sustained defendant's motion to modify child custody. The care and custody of the child was placed in defendant, with plaintiff being awarded certain visitation and temporary custody rights which are not an issue here. Plaintiff filed an after trial motion to amend the judgment, so that plaintiff would be awarded custody of the child, and that defendant be required to pay reasonable child support. The motion was overruled. This appeal followed.

Plaintiff's sole point relied on is that "The trial court erred in sustaining respondent's counter-motion to modify child custody and in transferring custody of Dwayne Alan Black to respondent because the respondent failed to offer substantial evidence of a change in circumstances that would necessitate such a transfer to serve the best interests of the said child." As stated, the point violates Rule 84.04(d)¹ in that it does not state wherein and why the actions and rulings of the trial court are claimed to be erroneous. As written, the point is merely an abstract statement, in that it fails to specify any evidence, or lack of it, that made any action or ruling of the trial court supposedly erroneous. Carrell v. Carrell, 503 S.W.2d 48, 50 (Mo.App.1973). In addition, the statement of facts in plaintiff's brief consists of a single page, devoid of any specific page references to the transcript, and is almost entirely devoted to the legal history of the case. As written, it is inadequate, and violative of Rules 84.04(c) and 84.04(h). Were it not for the fact that the welfare of a minor child is involved, plaintiff's appeal would be dismissed for the rule violations noted above, but, in fairness to the minor child, we review the imperfectly tendered issue of whether the evidence was sufficient to support the judgment of the trial court. In re Marriage of L_____, 548 S.W.2d 262 (Mo.App.1977).

A judgment of a trial court ordering a change in custody of a minor child is required to be affirmed unless the judgment was not supported by substantial evidence, was against the weight of the evidence, or was the result of an erroneous declaration or application of law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). In view of the fact that the trial court is in a better position not only to judge credibility of witnesses directly, but also their sincerity, character, and other trial intangibles, which may not be completely revealed by the record, our review is based on the presumption that the trial court studied all of the evidence thoroughly and decreed custody in the manner it believed would be in the best interest of the minor child. L.H.Y. v. J.M.Y., 535 S.W.2d 304, 306 (Mo.App.1976).

In its judgment and decree, the trial court indicated that it had considered all relevant factors, including those specifically listed in § 452.375, in making its determination as to who should have custody of the child. Section 452.375 states that:

"The court shall determine custody in accordance with the best interests of the child. The court shall consider all relevant factors including:

(1) The wishes of the child's parents as to his custody;

(2) The wishes of a child as to his custodian;

(3) The interaction and interrelationship of the child with his parents, his siblings, and any other person who may significantly affect the child's best interests;

(4) The child's adjustment to his home, school, and community; and

(5) The mental and physical health of all individuals involved."

The transcript reveals the following facts relative to such factors. Both parents wanted custody of their son, so the wishes of Dwayne's parents as to his custody were in conflict. Dwayne wanted to stay with his father in Springfield, Missouri, and did not want to move to California to live with his mother and new stepfather. The trial judge, after lengthy questioning of the boy, in regard to his competency to make such a decision observed, "He seems a very polite and intelligent young man, and I thought he was very good at expressing himself." The record upholds such observation, and indicates that the child's desire to live with his father was an informed and reasoned choice. During his testimony Dwayne was asked, "Do you remember roughly how long after you found out your mother would be moving to California, your mom and George the new stepfather roughly how long after that you decided you'd like to stay here with your dad?" His answer was, "Well, I found out, you know, at first, you know, that she was going to get married, and I thought, oh, great, we're moving to California, and I'd get to see movie stars and I'd get a dog, but then I thought about leaving my family, my dad and everybody else, and, you know, about the state, and I thought, well, I'll go out there and, you know, see if it's some place that I would like to live, and I had already talked to my dad about maybe wanting to stay here, you know, and we went out to the wedding and then came back and I went to talk to my dad and told him that I wanted to stay here." Other questions and answers bearing on this issue of his informed choice were:

"Q. Now, if you went out to live with your mom, George would be your stepfather, do you understand that?

A. Yeah.

Q. Do you have any feelings about being raised by George, at least part of the time during the school year or

A. Well, I've got a couple of feelings. One, I just don't want another father. Two, it would probably-it wouldn't well, it probably would make a little bit of difference if he didn't live in California, but if they lived in Springfield. Three, I just want to live with my real dad."

Plaintiff, in her brief, argues that Dwayne's choice was not an informed and intelligent one, in that he was immature and easily swayed, and that his father had tried to sway his decision by instilling in him a fear of the schools in California. She tried to establish this alleged fact through testimony to that effect by a clinical psychologist, Cliff Whipple, who had been retained by the mother. Dr. Whipple had only talked to the boy on one occasion for 25-30 minutes and had administered some psychological tests to him. He had also talked to and tested the mother, but had not talked to or tested the father. Defendant denied that he had told his son that the California schools were bad, and testified that he had tried to allow his son to make an independent judgment on the move to California, free from the influence of the father. Evidently, the trial court disbelieved the testimony of the psychologist on this issue, and believed the testimony of the father, which it had a right to do. Conflicts in testimony should be resolved by the trial court and should not be subject to appellate judicial second guessing.

Evidence on the statutory factor of interaction and interrelationship of the child with his parents, his siblings and any other persons who might significantly affect his best interests was that...