Smith v. Smith, 17785

• Decision Date: 26 October 1992
• Docket Number: No. 17785,17785
• Citation: 839 S.W.2d 382
• Parties: Tammy Denise SMITH (Weatherford), Petitioner-Respondent, v. Anthony Lee SMITH, Respondent-Appellant.
• Court: Missouri Court of Appeals

Page 382

839 S.W.2d 382

Tammy Denise SMITH (Weatherford), Petitioner-Respondent, v. Anthony Lee SMITH, Respondent-Appellant.

No. 17785.

Missouri Court of Appeals,

Southern District,

Division Two.

Oct. 26, 1992.

Frederick W. Martin, III, West Plains, for petitioner-respondent.

David G. Neal, David G. Neal Law Firm, Eminence, for respondent-appellant.

PREWITT, Judge.

The marriage of the parties was dissolved in 1985 and respondent Tammy Denise Smith was granted primary physical custody of the two children born of the marriage. Thereafter, appellant by motion sought modification of the decree to grant him custody of the children. Respondent then sought additional child support.

After hearing, the trial court denied appellant's motion for custody and increased appellant's child support obligations. Appellant contends the trial court erred in not granting him custody, in not allowing him to call as a witness respondent's former attorney, in raising the child support and in not granting him attorney's fees.

Review is under Rule 73.01. It requires that we affirm the trial court's order unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or erroneously applies the law. In re Marriage of Goostree, 790 S.W.2d 266, 267 (Mo.App.1990). Setting aside a custody award on the ground that it is against the weight of the evidence must be exercised with caution and with a firm belief that the decree is wrong. Id. We should not disturb the trial court's finding regarding custody unless it is manifestly erroneous and the welfare of the child requires some other disposition. Id. The principal concern is the best interests of the child. Id. at 268.

As no findings of fact were requested or made, all fact issues shall be considered as having been found in accordance with the result reached. Rule 73.01(a)(2). Due regard is given to the opportunity of the trial judge to determine the credibility of witnesses. Rule 73.01(c)(2); In re Marriage of Lafferty, 788 S.W.2d 359, 361 (Mo.App.1990).

Section 452.410, RSMo Supp.1991 states:

Custody, decree, modification of, when.--

1. Except as provided in subsection 2 of this section, the court shall not modify a prior custody decree unless it has jurisdiction under the provisions of section 452.450 and it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of 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. Notwithstanding any other provision of this section or sections 452.375 and 452.400, any custody order entered by any court in this state or any other state prior to August 13, 1984, may, subject to jurisdictional requirements, be modified to allow for joint custody in accordance with section 452.375, without any further showing.

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. In re Marriage of Carter, 794 S.W.2d 321, 324 (Mo.App.1990). Once custody is adjudicated, the presumption is the custodial parent remains suitable and the burden of showing circumstances which warrant a change of custody is on the moving party. In re Marriage of D.L. (B.)M., 783 S.W.2d 473, 474 (Mo.App.1990).

Except for good reason, a child should not be shifted periodically from one home to another, unless it is demonstrated by a preponderance of the evidence that the continued well-being of the child requires a change. Carter, 794 S.W.2d at 324. Even though there may be some showing of a change in circumstances, the change must be significant before the custody decree should be modified. D.L.(B.)M., 783 S.W.2d at 474-475.

The trial court has considerable discretion in determining custody and appellate courts only interfere when they are firmly convinced that the result is wrong. In re Marriage of Griggs, 707 S.W.2d 488, 491 (Mo.App.1986). The trial judge can view and hear the people involved and is in a better position to look at all the facts bearing on the best interests of the children. Id.

In making provision for child custody the trial court has broad discretion, and this court will not interfere unless the welfare of the children requires it. Jobe v. Jobe, 708 S.W.2d 322, 328 (Mo.App.1986). It has even been said that an appellate court must accord greater deference to the trial court where custody of children is involved. Aston v. Aston, 810 S.W.2d 720, 721 (Mo.App.1991).

Appellant contends the trial court erred in not granting his request for custody of his children for several reasons. Appellant states "the overwhelming weight of the evidence proved" that respondent took the children out of state without court approval resulting in a loss to his visitation, denied him visits after she returned to Missouri, implemented a plan to turn the children against him, and instructed the children to choose whether visits by him would occur.

Respondent counters that the trial court did not err because the weight of the evidence established there was no change of circumstances that required modification for the best interest of the children "in that the residence of the children was removed from Missouri only temporarily, respondent did not deny appellant his rights of visitation or alienate the children against him, and the children are doing well in their present circumstances."

Respondent testified she moved from Missouri thinking she could do so because she had filed a motion for leave to move with the children and appellant had agreed that she could take them from the state. She said that since returning to Missouri she allowed appellant proper visitation. Respondent also testified that the children are doing well in school, are healthy and have made many friends in their present neighborhood and school. Respondent denied that she had taken any action to alienate them from their father. With the deference this court must give, we cannot say that the trial court's determination regarding custody was erroneous. This point is denied.

For his second point appellant contends the trial court erred when it did not permit him to call respondent's prior attorney on the grounds that it would violate the attorney-client privilege "because she had waived the privilege when she testified she left the state with her children without prior court approval only because her attorney said she could". This testimony was elicited on cross-examination.

For a party to waive a confidential privilege such as that of attorney-client the waiver must be voluntary which does not occur when it is extorted under cross-examination. State ex rel. DeGraffenreid v. Keet, 619 S.W.2d 873, 878 (Mo.App.1981). See also State ex rel. Hayter v. Griffin, 785 S.W.2d 590, 594 (Mo.App.1990).

Appellant's reliance upon Knight v. M.H. Siegfried Real Estate, Inc., 647 S.W.2d 811 (Mo.App.1982), does not aid him in this situation. Knight recognized the general rule that testimony solicited from a client on cross-examination is not voluntary and would not waive the privilege but found circumstances there making this rule inapplicable. The court stated 647 S.W.2d at 816:

The client's agent who here voluntarily testified, albeit on direct examination by the adverse party, concerning communications between himself and his former attorney, was himself an attorney with forty years' experience. Knight's questions, which elicited the responses constituting a waiver, were general and did not compel an answer that would disclose privileged communications. Both of the areas in which the trial court permitted inquiry of the former attorney were areas in which Siegfried had already related by nonresponsive answers the substance of the attorney's conversations.

None of the above-quoted circumstances were present here. There was no voluntary waiver of the attorney-client...