Lindell v. Coen, WD
| Decision Date | 25 April 1995 |
| Docket Number | No. WD,WD |
| Citation | 896 S.W.2d 525 |
| Parties | Matthew L. LINDELL, Respondent, v. Kim M. COEN, Appellant. 49327. |
| Court | Missouri Court of Appeals |
Rickey Lee Jeffries, Independence, for appellant.
Weldon Wayne Perry, Jr., Lexington, for respondent.
Before SPINDEN, P.J., and ULRICH and SMART, JJ.
Kim Marie Coen appeals the trial court's order granting Matthew Lee Lindell's motion to modify the decree of dissolution regarding custody of their minor child, Savanna Marie Lindell. The modification order granted Lindell primary legal and physical custody of Savanna. Prior to the order, the couple had joint custody, and Coen had primary physical custody.
Coen complains that (1) the trial court did not hear and consider all the evidence before reaching its decision; (2) the modification was not in Savanna's best interest, was against the weight of the evidence, was not supported by substantial evidence, and erroneously declared or applied the law; (3) the trial court limited Coen's visitation to Jackson or Lafayette counties in Missouri and Polk and Story counties in Iowa, and this was not supported by the court's findings; and (4) the trial court abused its discretion by ordering Coen to pay the guardian ad litem fees and Lindell's attorney fees. We agree with only her third point. We reverse the trial court's judgment and remand so the court can amend its order to remove the geographical limitation for visitation. We affirm the judgment in all other respects.
Coen and Lindell married on April 20, 1990, in Higginsville. Savanna was born on January 10, 1991. A Story County, Iowa, court entered a decree dissolving their marriage on November 2, 1992. The circuit court of Lafayette County, Missouri, later registered the decree. The original decree granted the parties joint legal custody and Coen primary physical custody of Savanna, with reasonable visitation rights of one week every month to Lindell.
Lindell and Coen later filed competing motions to modify the custody and support provisions of the registered decree. With regard to custody, Lindell alleged that Coen had, among other things, "willfully, consciously, contemnatiously, and without reasonable justification or excuse" denied Lindell his visitation privileges, refused to allow him to develop and to maintain a father-child relationship with Savanna, failed and refused to provide adequate clothing for the child for Lindell's visitation periods, subjected Savanna to "an inordinate number of examinations by medical providers," made unfounded allegations of child abuse or neglect against him to state agencies, and regularly placed unreasonable restrictions on his visitation. Coen requested an increase in child support and sole custody. She alleged that the 250-mile distance between the parties' homes had "proven difficult for [Lindell] to conduct his visitation in a reasonable manner," Lindell's employment prevented him from caring for Savanna, Lindell did not take Savanna to church or to religious classes, and Lindell had not followed the prescribed medication schedule for Savanna.
The trial court overruled Coen's motion. With regard to Lindell's motion, it found that a substantial change had occurred in the circumstances of Savanna and Coen which warranted modification of the custody order.
Coen's first point is that the trial court erred in not considering all of the evidence before reaching its decision. Coen complains that because the trial court ruled from the bench immediately at the close of the evidence, it could not have possibly reviewed all of the 34 exhibits, which included two depositions and 59 pages of medical records. Coen also complains that the court read parts of the file during the hearing and had typewritten findings available for the parties immediately following the hearing. She argues that this indicated that the trial court had reached its decision before listening to all of the evidence.
We presume that trial courts "faithfully and judiciously carry out the[ir] duties[.]" Ramsey v. Grayland, 567 S.W.2d 682, 688 (Mo.App.1978). We also presume "the regularity of all judicial proceedings until the contrary is shown." Gilbert v. Malan, 231 Mo.App. 469, 100 S.W.2d 606, 616 (1937).
The transcript reflects that the court considered all of the evidence in reaching its decision. The trial court said that it had "read the file, read the depositions, [and] heard the testimony." The court's ruling from the bench was entirely permissible. It explained that it was ready to make a decision and the residences of the parties in Iowa and Georgia necessitated a prompt resolution of the custody dispute. It was proper for the trial court "to be prepared to expeditiously dispose of the [case] and avoid unnecessary delay and inconvenience to the parties as well as the court." Ramsey, 567 S.W.2d at 688. That the court had prepared typewritten findings as the hearing progressed does not indicate that the court reached its decision prematurely, "nor is it evidence of judicial impropriety." Id. Coen's first point is without merit.
Coen's second point is that the trial court's change of Savanna's custody was not in Savanna's best interests, was not supported by substantial evidence, was against the weight of the evidence, and erroneously declared or misapplied the law. In assessing the sufficiency of the evidence, we examine the evidence and its inferences in the light most favorable to the trial court's order. Long v. Long, 771 S.W.2d 837, 839 (Mo.App.1989). We defer to the trial court's assessment of witnesses' credibility and accept the trial court's resolution of conflicting evidence. W.E.F. v. C.J.F., 793 S.W.2d 446, 451 (Mo.App.1990). We presume that the trial court reviewed all evidence and based its decision on the child's best interests. Hord v. Morgan, 769 S.W.2d 443, 450 (Mo.App.1989). We will reverse a custody modification on the ground that it is against the weight of the evidence only when we firmly believe that the decision is wrong. Id.
The trial court heard evidence to support its ruling. While it also heard contradictory evidence, the trial court, as fact finder, is free to believe all, part, or none of a witness' testimony. Herbert v. Harl, 757 S.W.2d 585, 587 (Mo. banc 1988).
The evidence supporting the trial court's ruling indicated that Lindell had been denied eight of seventeen scheduled visits with Savanna since the entry of the original decree. Coen's justification for the denials was that Savanna was either sick or out of the state visiting Coen's parents. When Lindell tried to enforce his visitation rights by showing Coen the original decree, Coen told him, "That paper doesn't mean squat." Although Coen had obtained an ex parte order of protection against Lindell which prevented him from exercising his visitation, she did not tell him about it before he drove 250 miles from Iowa to Higginsville to pick up Savanna. The grounds for the ex parte order turned out to be unsubstantiated. Coen also refused to give Savanna to Lindell's father after he had driven from Iowa to pick up the child for a visit. In 1993, Coen moved with Savanna to Georgia without giving advance notice to, or obtaining permission from, Lindell or the courts. Lindell had been forced to answer three unsubstantiated reports of abuse or neglect made to the Missouri Department of Family Services.
A trial court can consider a custodial parent's interference with the visitation rights of the non-custodial parent in determining a child's welfare. Armstrong v. Armstrong, 877 S.W.2d 127, 131 (Mo.App.1994). Interference by a parent with the visitation rights of the other constitutes a changed condition which may justify modification of custody. Cornell v. Cornell, 809 S.W.2d 869, 873 (Mo.App.1991). The trial court found that Coen's "denial of visitation, based on claims of ill health of [Savanna], were unjustified and fit a flagrant pattern of [Coen's] willful denial of [Lindell's] visitation privileges."
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