Marriage of Campbell, In re

• Decision Date: 30 December 1993
• Docket Number: No. 18367,18367
• Citation: 868 S.W.2d 148
• Parties: In re the MARRIAGE OF Becky L. CAMPBELL and Herbert C. Campbell. Becky L. CAMPBELL, Petitioner-Appellant, v. Herbert C. CAMPBELL, Respondent-Respondent.
• Court: Missouri Court of Appeals

Page 148

868 S.W.2d 148

In re the MARRIAGE OF Becky L. CAMPBELL and Herbert C. Campbell.

Becky L. CAMPBELL, Petitioner-Appellant, v. Herbert C. CAMPBELL, Respondent-Respondent.

No. 18367.

Missouri Court of Appeals,

Southern District,

Division Two.

Dec. 30, 1993.

Kenneth W. Johnson, Twibell, Greene & Johnson, Springfield, for petitioner-appellant.

Michael D. Garrett, Garrett & Woods, Monett, for respondent-respondent.

GARRISON, Judge.

This appeal is from that portion of a dissolution of marriage decree which awarded primary custody of two minor children to the husband. Becky L. Campbell (Wife) and Herbert C. Campbell (Husband) were married in December 1981. At that time, Wife had a son (Joseph) from a prior marriage who was later adopted by Husband. Two children were born of this marriage: Brandi Pursuant to a mutual request by the parties, the trial court appointed an attorney as guardian ad litem of the minor children (hereafter referred to as Guardian). The Guardian filed a request for production of documents and information from both parties and interviewed Husband as well as Brandi prior to trial. He participated at trial by cross-examining witnesses and voicing his position on objections to evidence. Pursuant to the request of the trial court, he also submitted a proposed joint custody plan and a letter containing recommendations concerning custody.

born January 31, 1984, and Candice, born August 27, 1990. The parties separated as husband and wife in June 1991, at which time Wife filed a petition for dissolution of marriage. At the time of trial, Joseph was seventeen years old, Brandi was eight, and Candice was one year, eleven months.

The trial court awarded custody of Joseph to Wife with visitation privileges in Husband. No appeal is taken from that portion of the decree. Joint legal custody of Brandi and Candice was awarded to the parties but primary physical custody was awarded to Husband with visitation privileges in Wife. Wife appeals from that portion of the decree.

Wife raises two issues which may be summarized as follows: (1) the trial court erred in awarding primary physical custody of Brandi and Candice to Husband because there was no evidence in the record that the Guardian fulfilled his duty in representing the children; and (2) the award of primary physical custody of the two children to Husband was against the weight of the evidence, an abuse of discretion, and contrary to the children's best interests. For the reasons specified, we affirm the judgment of the trial court.

STANDARD OF REVIEW

The standard of review in court-tried cases announced in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), applies to child custody cases. T.B.G. v. C.A.G., 772 S.W.2d 653, 654 (Mo. banc 1989). Therefore, the decree will be sustained unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Id.

It is important to remember that the trial court has considerable discretion in making custody orders, and an appellate court should not disturb such orders unless it is firmly convinced that they are manifestly erroneous and the welfare of the children requires some other disposition. Burden v. Burden, 811 S.W.2d 818, 820 (Mo.App.1991); In re Marriage of Mihalovich, 659 S.W.2d 798, 801 (Mo.App.1983). In reviewing a decree, due regard must be given to the opportunity of the trial court to judge the credibility of the witnesses, Rule 73.01(c)(2), ¹ and to evaluate intangibles which do not appear from the cold record. D.S.P. v. R.E.P., 800 S.W.2d 766, 770 (Mo.App.1990). A trial court is free to believe or disbelieve all, part or none of the testimony of any witness. T.B.G. v. C.A.G., 772 S.W.2d at 654. The appellate court is to accept as true the evidence and inferences that are favorable to the trial court's decree and disregard all contrary evidence. Id. In a case, such as the instant case, where neither party requested findings of fact and conclusions of law, the appellate court must presume all fact issues to have been found in accordance with the judgment. Id.

WIFE'S FIRST POINT

In her first point, Wife argues that awarding primary custody of Brandi and Candice to Husband was error because the trial court relied on the recommendations ² of the Guardian without evidence in the record that the Guardian's duty to the children was fulfilled. In particular, she argues that the Guardian's failure to meet with Candice (who at the time was one year, eleven months old) and to make a record of his meeting with Brandi and Husband constituted a gross neglect of duty requiring reversal.

Wife acknowledges that there was evidence which would support the award of primary custody to either her or Husband, but argues that she was prejudiced by the Guardian's alleged failures because a proper investigation could have revealed facts which could have changed the recommendations made to the trial court; and a complete record of the Guardian's findings and recommendations would have provided a basis for appellate review. She does not specify, however, what other facts could have been learned and does not contend, in her argument under this point, that the award of primary physical custody to Husband was contrary to the best interests of the children.

Point I must be denied for several reasons. First, Wife failed to preserve the issue for appellate review by not raising it in the trial court. ³ She made no objection concerning the appointment of the Guardian, his investigation, his participation or performance at trial, or the adequacy or effectiveness of his representation of the children's interests. Upon completion of the trial on July 20, 1992, the trial court asked the Guardian to submit a proposed joint custody plan, together with his recommendations concerning custody, by July 27. The trial court also requested, and counsel for both parties agreed, that any desired responses would be filed by July 29. The Guardian filed his recommendations and proposed custody plan on July 23 and Husband requested some modifications on July 28. Wife, however, made no objection or response. In short, Wife raised no issue in the trial court concerning the matters about which she now complains. ⁴ With commendable diligence, the trial court entered its decree on July 29.

A party is not entitled to have issues considered on appeal which were never presented to or passed on by the trial court. Ibarra v. Missouri Poster & Sign Co., 838 S.W.2d 35, 40-41 (Mo.App.1992). Even though issues were not preserved in the trial court, an appellate court can review pursuant to Rule 84.13(c) to determine if plain error was committed affecting substantial rights which resulted in a manifest injustice or a miscarriage of justice. D.D.C. by Juvenile Officer v. B.C., 817 S.W.2d 940, 944 (Mo.App.1991). We have elected to review for plain error since the best interests of the children are involved.

Wife argues that the absence of a record of the Guardian's interview with Brandi requires reversal. She acknowledges that there are no statutory requirements that a guardian ad litem interview the children in all cases. ⁵ She relies, however, on Cassinger v. Cassinger, 808 S.W.2d 412 (Mo.App.1991). In the Cassinger case, this court reversed a custody decree because the trial court conducted an interview with a child who was not the subject of the proceeding (the husband's child by a former marriage) in chambers with counsel present but failed to make a record of it. Even though § 452.385 ⁶ did not require reversal because the child interviewed was not the subject of the custody proceeding, this court reversed based upon the policy underlying that statute. In that case, it was held that orders pertaining to the custody of minor children must be based on evidence in the record, because otherwise the court must speculate as to what reliance, if any, the trial court placed on the interview in reaching its custodial decisions concerning the other children. In reaching its decision, this court relied heavily on Williams v. Cole, 590 S.W.2d 908 (Mo. banc 1979), in which the importance of a record of interviews conducted by the trial court was explained as follows:

First, any consideration given by the trial court to the child's unrecorded testimony would be improper as not being supported by the record. Second, the failure to preserve the child's testimony precludes meaningful review with respect to what extent, if any, the trial court relied upon the child's testimony in determining [custody].

590 S.W.2d at 911.

We believe the instant case is distinguishable from the Cassinger case and the rationale supporting it as announced in Williams. In the instant case, it was the Guardian, not the court, who conducted an interview with Brandi. It was the court, not the guardian ad litem, who was charged with the responsibility of making custody decisions. There is no evidence in this case that the trial court abrogated its responsibility or delegated it to the Guardian. Likewise, there is no indication that the trial court had before it any evidence which was outside the record. As admitted by Wife in her brief, the Guardian's letter of recommendations to the trial court contained nothing which was outside the evidence introduced at trial.

Wife also argues that the Guardian had a duty to, but did not, investigate and advocate vigorously in behalf of the children. She cites Hemphill v. Hemphill, 316 S.W.2d 582 (Mo.1958), in support. In that case, the ward filed suit to set aside a divorce decree entered when she was represented by a guardian ad litem. She alleged that the guardian failed to communicate with her, failed to make any investigation whatsoever concerning the facts or circumstances of the case, failed to notify her of the trial, and permitted the matter to be heard while not acting in her best interests. The appellate court acknowledged the...