Marriage of Lowe, In re, 18395

• Decision Date: 24 August 1993
• Docket Number: No. 18395,18395
• Citation: 860 S.W.2d 813
• Parties: In re the MARRIAGE OF Karen M. LOWE and Dennis R. Lowe. Karen M. (Lowe) BROTHERTON, Appellant, v. Dennis R. LOWE, Respondent.
• Court: Missouri Court of Appeals

Page 813

860 S.W.2d 813

In re the MARRIAGE OF Karen M. LOWE and Dennis R. Lowe.

Karen M. (Lowe) BROTHERTON, Appellant, v. Dennis R. LOWE, Respondent.

No. 18395.

Missouri Court of Appeals,

Southern District,

Division Two.

Aug. 24, 1993.

Steven Privette, Willow Springs, for appellant.

Brad D. Eidson, Houston, for respondent.

CROW, Judge.

In this appeal we deal with events that occurred after December 28, 1990, when the trial court modified a July 5, 1988, decree dissolving the parties' marriage. The parties are Dennis R. Lowe and Karen M. (Lowe) Brotherton. For convenience, we henceforth refer to them by their respective first names.

The 1990 modification was appealed by Dennis. The outcome is reported in Brotherton v. Lowe, 819 S.W.2d 74 (Mo.App.S.D.1991). The decision there left the younger of the parties' two children, Shelly Lowe (born May 25, 1977), in the primary custody of Karen. Primary custody of the parties' older child, James Lowe (born October 31, 1973), awarded to Dennis by the 1990 modification, was not in issue on appeal.

The present dispute arose when Karen, on April 27, 1992, filed a motion to change the residence of Shelly from Mountain View, Missouri, to the state of Minnesota. Karen's motion alleged her husband, Richard Brotherton, ¹ had accepted employment there.

Dennis responded with a motion seeking transfer of primary custody of Shelly from Karen to him, together with child support for Shelly. Dennis' motion pled, inter alia, that Shelly had expressed a preference to reside with him and to remain in the school system she had attended since kindergarten.

Karen answered Dennis' motion with a request that the child support being paid her by him for Shelly be raised.

The issues were tried August 14, 1992. With commendable dispatch, the trial court filed an order August 31, 1992, which (a) transferred primary physical custody of Shelly from Karen to Dennis, (b) granted Karen six weeks' "summer visitation" with Shelly each year and one week during the Christmas holiday season, and (c) directed Karen to pay Dennis $260 per month child support for Shelly.

Karen appeals. The first of her two points relied on complains the trial court erred in awarding Dennis primary custody of Shelly.

The trial court's order contains comprehensive findings of fact, including these:

In July of 1992, the minor child, her mother, step-father and step-brother moved to the State of Minnesota from the State of Missouri. The move was against the wishes of the minor child, who had been a lifetime resident of the Mountain View, Missouri area, and had developed many friendships in that community. Both sets of grandparents, her father and brother continue to live in the Mountain View area. The minor child was active in track, volleyball, basketball and choir in the Mountain View schools.

Unfortunately, since the [1990 modification], the relationship between mother and child has continued to deteriorate. At the present time, little communication exists between Shelly and her mother, except for arguments and fights. Shelly states she has no relationship with her mother and step-father, and that she is treated like a prisoner in her own home. Since moving to Minnesota, Shelly has been denied all access to the telephone. She is not allowed to return phone calls from her father. The phone remains unhooked, and hidden in her mother's room behind a locked door. The minor child is allowed no access to her mother's room. She is not allowed to write family or friends or receive letters. [Karen] states she does not like Shelly's attitude after visiting with her father, and is punishing the child for misbehaving.

The minor child states a strong desire to live with her father in Mountain View, Missouri, and attend the Mountain View school. The minor child states her grades have deteriorated since she has been living with her mom. The minor child is adamant that she cannot and will not continue to live with her mother. She states she loves her father and wants to live with him.

....

The Court finds that the move to Minnesota was primarily made to defeat and frustrate [Dennis'] visitation, and the practical effect of the move is to deprive contact between father and child. The Court finds the move to Minnesota would not be in the child's best interest.... [Dennis] has been active in caring for the child. He is described as a good cook and housekeeper, and a loving father. The minor child participated actively in school activities in Mountain View, and was well adjusted in the community. The minor child has many friends and family in the Mountain View community. The move to Minnesota will not provide a realistic opportunity for visitation and interaction by [Dennis] with the minor child, and the Court believes that [Dennis] is more likely than [Karen] to encourage visitation if he is awarded custody.

The trial transcript, which we have carefully read, comprises 261 pages. Additionally, ten exhibits offered by Karen and eight exhibits offered by Dennis were received in evidence. We have studied each exhibit.

The statement of facts in Karen's brief consists of four paragraphs containing a total of 28 lines. Nowhere in the statement of facts is there a page reference to the transcript. That is because the few "facts" set forth in the statement of facts occurred before the 1990 modification. No fact pertinent to the order appealed from appears in the statement of facts.

Rule 84.04(c) ² reads:

The statement of facts shall be a fair and concise statement of the facts relevant to the questions presented for determination without argument....

The primary purpose of the statement of facts is to afford an immediate, accurate, complete and unbiased understanding of the facts of the case. Wipfler v. Basler, 250 S.W.2d 982, 984 (Mo.1952); Missouri Highway and Transportation Commission v. Taylor, 839 S.W.2d 676, 678 (Mo.App.S.D.1992). Even though Missouri appellate courts have hesitated in the past to dismiss an appeal because of an inadequate statement of facts, such a deficiency is grounds for dismissal. Taylor, 839 S.W.2d at 678; Thompson v. Thompson, 786 S.W.2d 891, 892 (Mo.App.S.D.1990).

Here, however, custody of a child is in issue. Furthermore, in the argument following the first point in her brief, Karen sets forth several facts, accompanied by transcript references. For those reasons, we shall not dismiss her appeal.

Karen's first point reads:

The trial court erred in modifying the decree of dissolution ... so as to vest primary custody [of Shelly] with Dennis ... for the reason that only fifteen months earlier the court had denied a similar motion based on similar allegations, and, in any case, ... Dennis ... failed to meet the burden of proof required in a motion to modify.

Rule 84.04(d) reads:

The points relied on shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous....

The purpose of the rule and the necessity of obeying it are explained in the leading case of Thummel v. King, 570 S.W.2d 679, 684-88 (Mo. banc 1978).

Karen's first point yields no clue as to wherein and why the 1990 denial of Dennis' motion for custody of Shelly constituted a defense to his 1992 motion for custody, supplies no inkling as to what the "similar allegations" were in the earlier motion, and provides no hint as to wherein and why Dennis failed to meet the burden of proof required to transfer custody. The point therefore presents nothing for appellate review. Phillips v. Phillips, 819 S.W.2d 413, 416 (Mo.App.S.D.1991); Best v. Culhane, 677 S.W.2d 390, 394 (Mo.App.E.D.1984).

However, because the best interest of a child is involved, we shall review the transfer of custody. The review standards are set forth in Brotherton, 819 S.W.2d at 77:

The scope of our review in this court-tried case is established by Rule 73.01(c), as construed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). The judgment of the trial court will be sustained unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Id. at 32. Credibility of the witnesses and the weight to be given their testimony is a matter for the trial court, which is free to believe none, part, or all of their testimony. Herbert v. Harl, 757 S.W.2d 585, 587 (Mo. banc 1988).

A [parent] seeking change in custody of a child has the burden to show that a change has occurred in the circumstances of the child or the parent since the decree and that modification is necessary to serve the best interests of the child. Wilhelmsen v. Peck, 743 S.W.2d 88, 92 (Mo.App.1987). An appellate court defers to the findings of the trial court in a matter of child custody unless firmly convinced that the welfare of the child requires some other disposition. Hartig v. Hartig, 738 S.W.2d 160, 161 (Mo.App.1987).

Section 452.411, RSMo Supp.1988, reads:

If either parent of a child changes his residence to another state, such change of residence of the parent shall be deemed a change of circumstances under section 452.410, allowing the court to modify a prior custody decree.

Citing Smith v. Smith, 839 S.W.2d 382, 384 (Mo.App.S.D.1992), Karen reminds us that to prevail on a motion to modify custody, the moving party must show a change of circumstances of the child or of the custodial parent, not the non-custodial parent, which is significant, directly affecting the welfare of the child. Karen maintains the only change in her and Shelly's circumstances since the 1990 modification was the move to Minnesota. Relying on In re Marriage of Cornish, 780 S.W.2d 62 (Mo.App.E.D.1989), Karen insists such change is insufficient to support transfer of custody.

In Cornish, the custodial parent (mother) was transferred by her employer from Missouri to a better job in Wisconsin. She sought modification...