King v. King, WD

Decision Date24 July 1990
Docket NumberNo. WD,WD
Citation793 S.W.2d 200
PartiesSteven Moak KING, Respondent, v. Engel Elizabeth KING, Appellant. 42475.
CourtMissouri Court of Appeals

Kelso Journey, Clinton, for appellant.

George R. Lilleston, Clinton, for respondent.

Before NUGENT, C.J., FENNER, J., and WASSERSTROM, Senior Judge.

FENNER, Judge.

Appellant, Engel King, appeals the denial of her Motion for Modification of Custody Order.

The parties, Engel and respondent Steven King, were married December 16, 1978. Two children were born of the marriage, Erin Elizabeth King, born January 10, 1980, and Spencer Steven Hugh King, born March 28, 1983. The marriage was dissolved May 23, 1985.

The Order dissolving the marriage incorporated the Separation Agreement of the parties, granted custody of the children to Engel and visitation to Steven. Due to Engel's problem with alcohol abuse, the Separation Agreement and the dissolution judgment directed that custody would be subject to supervision of the Division of Family Services (DFS) for a period of two years following the decree, with directions that DFS provide reports to the court and to the attorneys in the event that neglect or abuse of the children was found by DFS.

On October 1, 1986, visitation provisions of the May 23, 1985, dissolution order were modified. The Order of Modification cited problems with visitation which were brought to the court's attention by Court Reports from DFS.

Steven filed a Motion to Modify and Transfer Custody on December 4, 1986, alleging a substantial and continuing change of circumstances, to wit: that Engel was believed to be addicted to alcohol and while under the influence of alcohol, becomes subject to fits of uncontrollable rage and violence and is believed to commit acts of violence toward said children, especially Spencer King. The next day, December 5, 1986, the Juvenile Officer filed a neglect petition as to the children and on that same date temporary orders were entered making the children wards of the court, with custody in DFS, which in turn, placed the children with Steven.

On August 13, 1987, a hearing was held on Steven's Motion to Modify. A decree modifying the former custody orders was entered October 7, 1987, granting Steven custody. The decree specifically provided that it was subject to review upon motion after six months.

On March 22, 1988, Engel filed a combined Motion for Review and Motion for Modification of Custody Order wherein she alleged that she had accomplished a complete recovery and total abstinence from the use of alcohol. Engel alleged that the best interests of the children would be served by having custody transferred to her.

A hearing was conducted on September 1, 1988. The case apparently remained under submission until September 5, 1989.

On September 5, 1989, Engel filed a Motion to Reopen the September 1, 1988, hearing on her motion to modify. In the motion, Engel sought to have additional evidence considered by the court which she claimed affected the welfare of the children. On that same day, the hearing court ordered the juvenile department's supervision of the children's custody terminated and the juvenile files closed. The court found no change of circumstances since the September 29, 1987, Decree of Modification, of sufficient magnitude to make that temporary order unreasonable such that modification of that prior order would be warranted.

Engel thereafter, on September 12, 1989, filed a combined Motion to Set Aside and Amend the September 5, 1989, Judgment, for an Additional Hearing or, in the alternative, a Motion for New Trial. The motions were overruled on September 15, 1989, and Engel appealed.

Engel presents three points on appeal. The first two are interrelated and will be taken up together. In her first two points, Engel alleges error in the trial court's judgment of September 5, 1989, in its refusal to set aside said judgment and in its refusal to grant a new trial. She argues that the judgment denying transfer of custody to her was against the weight of the evidence and was not in the best interests of the children.

It is noted that a final order or judgment in a court tried case will be upheld if it is based on substantial evidence, it is not against the weight of the evidence, and is not based on any erroneous declaration or application of law. In Re Marriage of West, 689 S.W.2d 814, 815 (Mo.App.1985), citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). This court exercises great caution in setting aside a judgment in such cases on the ground that it is against the weight of the evidence, and only then with a firm belief that the judgment below was wrong, realizing that the trial court is in a much better position than is this court to judge the credibility of the witnesses and to determine the weight to be given to their testimony. Id. Thus, this court gives to the prevailing party the benefit of all favorable evidence and reasonable inferences to be drawn therefrom, disregarding all evidence to the contrary. Id. Additionally, the trial court is given deference even if the evidence could support a different conclusion. L.R.M. v. P.R.M., 780 S.W.2d 111, 112 (Mo.App.1989).

In order to modify child custody provisions of a dissolution decree, the trial court must find, "upon the basis of facts that have arisen since the prior decree ... that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child." § 452.410, RSMo 1986. (emphasis added). The burden to establish substantial change of condition requiring change of custody to serve the best interest of the child is upon the noncustodial parent. Wilmesherr v. Wilmesherr, 708...

To continue reading

Request your trial
16 cases
  • AlSadi v. AlSadi
    • United States
    • Missouri Court of Appeals
    • January 27, 1992
    ...with a hearsay report of child abuse. The trial court did not abuse its discretion in overruling Husband's motion. Cf. King v. King, 793 S.W.2d 200 (Mo.App.1990). The Husband's remaining point is denied and the judgment is affirmed. SHRUM, P.J., and MONTGOMERY, J., concur. ...
  • Adams v. Adams
    • United States
    • Missouri Court of Appeals
    • July 18, 1991
    ...stated, it was the burden of the mother to establish both prerequisites to a modification of the prior decree of custody. King v. King, 793 S.W.2d 200 (Mo.App.1990). The sparse evidence supports the father's contention there was no evidence to support the second "... Unless justice otherwis......
  • Savannah Place, Ltd. v. Heidelberg
    • United States
    • Missouri Court of Appeals
    • October 31, 2003
    ...Id. This is so "`even if the evidence could support a different conclusion.'" Martin, 104 S.W.3d at 787 (quoting King v. King, 793 S.W.2d 200, 202 (Mo.App.1990)). "This [C]ourt gives considerable deference to the evidentiary and factual evaluations by the trial court; however, no such defer......
  • Rombach v. Rombach, 75577
    • United States
    • Missouri Supreme Court
    • December 21, 1993
    ...See e.g., Osmun v. Osmun, 842 S.W.2d 932, 935 (Mo.App.1992); Van Pelt v. Van Pelt, 824 S.W.2d 135, 139 (Mo.App.1992); King v. King, 793 S.W.2d 200, 203-04 (Mo.App.1990). (i) Resolution of this issue begins with the legislature's choice of the word "alleged" as opposed to the word "evidence"......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT