Lisec v. Coy
| Decision Date | 10 July 1990 |
| Docket Number | No. WD,WD |
| Citation | 793 S.W.2d 173 |
| Parties | In re the Marriage of Pamela J. LISEC, (formerly Pamela J. Coy), Respondent, v. Royce B. COY, Appellant. 42540. |
| Court | Missouri Court of Appeals |
Kathy Kranitz Sadoun, St. Joseph, for appellant.
Joseph Alfred Morrey, St. Joseph, for respondent.
Before NUGENT, C.J., and FENNER and ULRICH, JJ.
Appellant, Royce Coy, appeals from an order modifying a decree of dissolution which transferred custody of his son, Aaron, from himself to his former wife, the child's mother, respondent, Pamela Lisec (formerly Coy).
Pamela and Royce were married on April 10, 1981. Their son, Aaron, was born on January 23, 1983. Pamela filed a petition for dissolution on July 21, 1986. On July 29, a temporary order was entered granting custody of Aaron to Pamela. Aaron was in Pamela's custody for over one and one-half years, pending a decision on the merits. Following a hearing on the merits, the trial court issued its judgment and findings of fact on December 9, 1987. Pursuant to the judgment, Royce was awarded custody of Aaron, then four and one-half years old, subject to a visitation plan pronounced for Pamela. For purposes of clarity, that judgment will be referred to as the original judgment. Since that time, Pamela has remarried a man named Ron Lisec. Twin girls were born to that marriage. Royce has not remarried and at the time of the hearing on the motion to modify, lived with Chris, his other son by a prior marriage, and his parents on their farm.
On February 9, 1989, Pamela filed a motion to modify the custody order, alleging that Royce was neglecting Aaron educationally and medically, that Royce allowed Aaron to remain with Royce's parents, that Royce's household was hostile to her and that visitation had been denied. Royce filed a motion to dismiss on July 19, 1989.
The events which ultimately led to the subject of this appeal occurred in July, 1989. Pursuant to the visitation schedule in the dissolution decree, Pamela had visitation for 30 days, beginning June 18, 1989. Royce arranged to have Aaron visit him for two days around the Fourth of July holiday. Royce returned the child following the holiday. Apparently, Aaron developed an illness which required hospitalization, sometime around the Fourth of July, but the etiology and the time of onset of his illness is disputed.
At the end of her summer visitation period, Pamela refused to return Aaron to Royce. On July 24, 1989, Royce filed a motion to cite for contempt and an order to show cause was directed to Pamela on August 2, 1989.
At the hearing on the contempt motion, held August 2, 1989, a good amount of testimony was elicited concerning Aaron's health. Testifying at this hearing were Pamela; Elaine Rickel, Pamela's stepmother; Virginia Stratton, Aaron's babysitter beginning the last week of June, 1989; Dr. Joseph Fisher, a doctor who examined Aaron early in July, 1989; and Royce Coy. In summary, the evidence presented tended to show Aaron to be below normal weight, a picky eater and very thin for his age.
Following the hearing the trial court ruled that Pamela was not in contempt. The trial judge orally made extensive findings on the record concerning his reasons.
Pamela filed a motion for temporary custody on August 2, 1989, the same day as the contempt hearing. A hearing on this motion was held August 4, 1989. Testifying at this hearing were Judith Barnes, custodian of records at Children's Mercy Hospital; Dr. Greg Thompson, Aaron's regular pediatrician during the time he was in Royce's custody; Pamela; and Royce. Following this hearing, the trial court granted temporary custody to Pamela.
On August 30, 1989, a full hearing on the merits was held. The testimony and proceedings at the hearings on the motion to cite for contempt and the motion for temporary custody were adopted by reference. Testifying at this hearing were Dr. Phyllis Roberts, Pamela's pediatrician who treated Aaron; Royce Coy; Dr. Charles Hodge, a pediatrician associated with Children's Mercy Hospital, specializing in pediatric gastroenterology; Nancy Pease, a teacher employed by Royce to tutor Aaron; Linda Nichol, Aaron's pre-school teacher; Dr. Greg Thompson, Aaron's regular pediatrician; Ron Lisec, Pamela's current husband; and Pamela.
After the parties presented their evidence, the guardian ad litem made his recommendation that custody of Aaron be given to the father.
On September 8, 1989, the trial court issued an ill-advised order, in letter form, to counsel for both parties indicating its decision to return Aaron to Royce's custody, telling Pamela to return Aaron to Royce and stating that a formal order would follow. On September 13, 1989, the trial court issued a Memorandum Opinion on Motion to Modify Custody and Award Other Relief, and a Decree Modifying Custody Order, Providing for Visitation and Child Support and Granting Declaratory Relief. The decree awarded custody of Aaron to Pamela. It is from this final decree modifying custody that Royce appeals.
Royce presents four points on appeal. Because points one and two are closely related, they will be addressed together. In his first point he alleges that the trial court erred in modifying the dissolution decree by transferring custody of Aaron because the findings which form the basis for said transfer are against the weight of the evidence or unsupported by any evidence whatsoever. He cites nine separate findings of the trial court which he claims are contrary to the evidence.
In his second point Royce alleges that certain findings made by the trial court are without evidentiary support and thus do not support the requisite finding of change of circumstance necessary to transfer custody.
Royce acknowledges the standard set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), cited in In Re Marriage of West, 689 S.W.2d 814, 815 (Mo.App.1985), which deserves, once again, to be repeated:
[A] final order or judgment in a court-tried case will be upheld if it is based on substantial evidence, is not against the weight of the evidence, and is not based on any erroneous declaration or application of law. We exercise great caution in setting aside a judgment in such cases on the ground that it was against the weight of the evidence, and only then with a firm belief that the trial court's judgment was wrong, realizing that the trial court is in a much better position than we to judge the credibility of the witnesses and to determine the weight to be given to their testimony. Therefore, we give the prevailing party the benefit of all favorable evidence and reasonable inferences to be drawn therefrom, disregarding all evidence to the contrary.
Furthermore, deference is given to the trial court 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. The burden to establish substantial change of condition requiring change of custody to serve the best interest of the child is upon the non-custodial parent. Wilmesherr v. Wilmesherr, 708 S.W.2d 823, 824 (Mo.App.1986). The change of conditions or circumstances must be of a nature that the child will substantially benefit from the transfer. Yates v. Yates, 755 S.W.2d 744, 746 (Mo.App.1988). It is important to defer to the trial judge who had the opportunity to evaluate the credibility, sincerity, and character of the various witnesses. Id. Proper considerations pursuant to § 452.375.2, RSMo 1986, are the wishes of the affected parties, including the child, the interaction and interrelationship of the child with parents and siblings, the child's adjustment to home, school and community, the mental and physical health of all involved parties, and the needs of the child for a continuing relationship with the parents. Id. (Citations omitted).
The evidence, viewed as a whole, along with the inferences favorable to Pamela, the prevailing party herein, reveals a sufficient change of circumstances to support the transfer. In summary, the evidence adduced at the hearings disclosed that Aaron had been in Royce's custody from the time the dissolution decree was entered, December 7, 1987, until late June, 1989, a period of about one and one-half years. During this time there was evidence that Aaron was continuously underweight and did not eat properly. Aaron was a picky eater, at times ...
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