A.P. v. R.A.B.

1 S.W.3d 483, 1999 Mo. App. LEXIS 552, 1999 WL 962498
CourtMissouri Court of Appeals
DecidedApril 28, 1999
DocketNo. 22620
StatusPublished

This text of 1 S.W.3d 483 (A.P. v. R.A.B.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
A.P. v. R.A.B., 1 S.W.3d 483, 1999 Mo. App. LEXIS 552, 1999 WL 962498 (Mo. Ct. App. 1999).

Opinion

JAMES K. PREWITT, Presiding Judge.

This is a guardianship proceeding in which Greene County Family Court Commissioner Scott Tinsley presided over the evidentiary proceedings and entered his findings, recommendations and order appointing guardians of the minor child. Thereafter, Judge Mountjoy entered judgment on October 6, 1998, adopting Commissioner Tinsley’s findings and recommendations as the judgment of the circuit court. Appellant, A.P., contends that the guardianship order is against the weight of the evidence, is without substantial evidence to support it, and erroneously declares and applies the law.

R.B. was born November 23, 1990. His mother died in an automobile accident in January of 1992. The child’s mother was married to A.B. at the time of her death, and R.B. continued to reside with A.B. after his mother’s death. The maternal grandmother, A.P., filed an Application for Letters of Guardianship on November 14, 1994, and on that date, an ex parte order was issued awarding her temporary custody of R.B. Among A.P.’s contentions was that A.B. was not the father of R.B. Three days later, the presumed father, A.B., filed an Application for Letters of Guardianship. One month later, A.B.’s parents, R.A.B. and B.B., sought to intervene, requesting guardianship be awarded to A.B. or to them. They contended that A.B., the husband of the child’s mother, was also the child’s father. The request to intervene was granted.

Evidence was presented over several days from February, 1997, through September, 1997. The guardian ad litem filed his report and recommendations in October, 1997. On December 10, 1997, the Family Court Commissioner entered his findings, recommendations and order, appointing R.A.B. and B.B. as permanent guardians. The matter was appealed, but the appeal was dismissed for lack of a final judgment. On October 6, 1998, the circuit court judge issued his judgment adopting the Commissioner’s findings. It is from that judgment that this appeal is taken.

Review in non-jury cases is governed by Rule 73.01(c). For interpretation of that rule, see In re Marriage of Lafferty, 788 S.W.2d 359, 361 (Mo.App.1990). Due regard is given to the opportunity of the trial court to have judged the credibility of the witnesses. Rule 73.01(c)(2). The appellate court views the “evidence and its permissible inferences in the light most favorable to the judgment, and [disregards] all contrary evidence and inferences.” Barrett v. Barrett, 963 S.W.2d 454, 457 (Mo.App.1998).

A trial court has considerable discretion in making child custody orders. In re Marriage of Campbell, 868 S.W.2d 148, 150 (Mo.App.1993). An appellate court will not disturb custody orders “unless it is firmly convinced that they are manifestly erroneous and the welfare of the children requires some other disposition.” Id.

For her first point, A.P. alleges that the trial court erred in awarding guardianship to the paternal grandparents because A.P. is the more suitable guardian for several listed reasons. Appellant expounds many reasons why the paternal grandparents are “grossly immoral.” Additionally, A.P. lists many of the allegations against A.B. that supported the trial court’s conclusion that he was unfit to serve as guardian, and stresses that he lives on his parents’ property.

This Court finds that substantial evidence supports the trial court’s ruling that R.A.B. and B.B. are better suited to be the guardians of the minor child. The evidence shows a considerable amount of animosity between the parties. A.P. appears especially angry and distrustful of the paternal grandparents. Many reasons A.P. gives to support her assertion that she is the most suitable guardian relate to matters that go to the weight of the evidence and credibility of the witnesses; matters in which great deference is given [485]*485to the trial court. Viewed in the light most favorable to the judgment, we note that R.A.B. and B.B. reside in a well kept and attractive home. The paternal grandparents are financially stable, the paternal grandmother does not work outside the home, and she is available to tend to R.B. when he is not in school. Additionally, Appellant blames the child’s father for her daughter’s death, claiming he tampered with the brakes of her daughter’s car so as to cause the accident in which she was killed. No evidence has substantiated her claim.

A.P. has confronted A.B. with vulgar, verbal arguments in the presence of R.B. on several occasions. A.P. has told R.B. that another man is his father, that his paternal grandparents do not love him as much as she loves him, and that his deceased mother did not like the paternal grandparents. A.P. has verbally and physically confronted R.A.B. and B.B. at the time of exchange of R.B. for visitation, thus in the presence of R.B. Additionally, A.P. has exhibited extreme agitation because R.B. attended a Catholic church with his paternal grandparents and she has demonstrated hostility toward that church. As summarized by the trial court, A.P. has been openly critical of and hostile towards the paternal grandparents. Appellant has engaged in conduct that interfered with and denied visitation to the paternal grandparents.

The petition for guardianship filed by A.P. was supported by an attached affidavit of a sister of the child’s father. The affidavit alleged that the child’s father had a propensity for violence, drank alcohol to excess and used marijuana and cocaine, and alleged incidents of violence and abuse. At trial, the affiant did not completely recant her statements, but she did equivocate on several of the allegations, stating that she had felt rushed by A.P.’s attorney on the day she signed the affidavit. Her credibility was also questioned due to promises made to her by Appellant.

Shortly after A.P. obtained custody of R.B., allegations were made that R.B. had been sexually abused by A.B.. The trial court then ordered that R.B. have no contact with A.B.. No evidence was presented that the order was violated. R.A.B. and B.B. had supervised visitation with R.B. on alternate weekends and holidays. During the time the child’s father resided in a guest house on the property of his parents, R.A.B. and B.B., he would stay in a motel on the weekends his son would visit. An investigation conducted by the Department of Family Services concluded that the sexual abuse allegation was unsubstantiated.

Our review of the entire record in this case leads us to the conclusion that the trial court did not abuse its discretion in awarding guardianship to the paternal grandparents. We will not disturb the judgment of the trial court in child custody determinations unless we are firmly convinced that it is manifestly erroneous. Point I is denied.

Appellant’s second point relates to a contempt order initially entered against A.B. for failure to comply with an order to submit to a paternity test. The order was later vacated. Appellant claims the trial court erred in refusing to sanction the child’s father, as required by § 210.834, RSMo 1994.1

Appellant filed a Motion for a Paternity Test in the circuit court, and that motion was granted. The presumed father was ordered to submit to a paternity test, but failed to do so. After notice and hearing, [486]*486an order of contempt was issued against him.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Barrett v. Barrett
963 S.W.2d 454 (Missouri Court of Appeals, 1998)
In Re Marriage of Campbell
868 S.W.2d 148 (Missouri Court of Appeals, 1993)
Luster v. Gastineau
916 S.W.2d 842 (Missouri Court of Appeals, 1996)
In Re the Marriage of Lafferty
788 S.W.2d 359 (Missouri Court of Appeals, 1990)
State ex rel. Wade v. Frawley
966 S.W.2d 405 (Missouri Court of Appeals, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
1 S.W.3d 483, 1999 Mo. App. LEXIS 552, 1999 WL 962498, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ap-v-rab-moctapp-1999.