Breckner v. Coble

921 S.W.2d 624, 1996 Mo. App. LEXIS 715, 1996 WL 208411
CourtMissouri Court of Appeals
DecidedApril 24, 1996
Docket20091, 20138
StatusPublished
Cited by12 cases

This text of 921 S.W.2d 624 (Breckner v. Coble) 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
Breckner v. Coble, 921 S.W.2d 624, 1996 Mo. App. LEXIS 715, 1996 WL 208411 (Mo. Ct. App. 1996).

Opinion

PARRISH, Judge.

Both parties appeal the modification of a dissolution of marriage judgment. Ricky Thomas Coble (father) appeals the denial of his request to modify child custody. Tresea Ann Coble Breckner (mother) appeals visitation privileges awarded to paternal grandparents and failure to award child support retroactive to the date father was served with her motion to modify. The appeals were consolidated. This court reverses the modification of child visitation, in part, and remands with directions. In all other respects, the judgment modifying the original dissolution of marriage judgment is affirmed.

*626 Scope of Review

Review of a trial court’s*'determination of a motion to modify is governed by Rule 73.01. P.L.W. v. T.R.W., 890 S.W.2d 688, 690 (Mo.App.1994). Its decision will be affirmed 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.; Aston v. Aston, 810 S.W.2d 720, 721 (Mo.App.1991).

No. 20091 — Father’s Appeal

The parties have two children, Christopher Charles, bom November 12, 1981, and Anthony Scott, born July 22,1983. Mother was awarded custody of both children in the original dissolution proceeding. Father, by his motion to modify, sought custody of Christopher.

Father presented testimony from a psychologist, Dr. Whipple. Dr. Whipple testified that he interviewed Christopher and administered certain psychological tests to him. Dr. Whipple characterized Christopher as “a rather conscientious young man, somewhat guarded, somewhat withdrawn.” He found no major incapacitating emotional problems or abnormal psychological disorders.

In interviewing and evaluating Christopher, Dr. Whipple undertook to determine how he perceived his parents. He found that Christopher desired to live with his father. Christopher was living with his mother at the time of the court hearing. Dr. Whipple expressed the opinion that it would be psychologically unhealthy for Christopher to remain in that environment.

Father presents one point in his appeal. He contends the trial court erred in leaving both children in mother’s custody “because the trial court failed to consider the wishes of the oldest child [Christopher] as to his custodian.” He claims the trial court’s determination of custody was not in the best interests of either child.

In considering appeals of custody orders, it is presumed that the trial court has studied all the evidence and decided the custody issue in a manner consistent with the best interests of the child. Cook v. Warren, 916 S.W.2d 409, 412 (Mo.App.1996). “Greater deference is accorded the decision of the trial court in custody cases than in other cases.” Id.

The trial court states in its Order of Modification, the judgment from which father appeals:

In reaching its decision to leave custody with the Mother, the Court finds that the Mother had showed a consistent and appropriate pattern of discipline; the making and enforcing of rules for the Children to follow; the encouragement and parental guidance for academic achievement of both children; and regular routines established for the children. The Court also considered the lack of discipline and rules established by the Father, his attitude about R rated and violent movies, that he allowed the children to view while in his custody. The Court also finds that the Father has created by his words and conduct unrealistic expectations about the children’s college education, a new home, and trips.

This court has reviewed the transcript of the testimony given before the trial court. A lengthy reiteration of it is not necessary. There was substantial evidence supporting the trial court’s findings with respect to the decision to leave custody of the children with mother.

Mother’s involvement with the children’s activities was particularly noteworthy with respect to their schooling. Both children have learning disabilities. Testimony of school officials consistently demonstrated diligent efforts of mother to assist and encourage the children to overcome those disabilities, including hiring a tutor on occasion. These efforts have been particularly successful with respect to Christopher. He has been mainstreamed in the school he attends and now makes top grades.

Father’s participation and interest in the children’s schooling is a marked contrast. He has shown little interest in their progress and has provided no assistance in meeting the children’s special educational needs. He refused to contribute to the cost of a tutor to assist Christopher.

*627 The fact that father’s expert supported father’s request to have custody of Christopher is not determinative. The trial court had the opportunity to evaluate the testimony of all witnesses. The weight to be given each witness was for the trial court to determine. It was not required to accept the views expressed by the psychologist who testified on behalf of father. T.M.K v. J.W.K., 667 S.W.2d 733, 735 (Mo.App.1984); Wells v. Wells, 623 S.W.2d 19, 22 (Mo.App.1981).

Neither was the trial court required to accede to the wishes with respect to custody expressed by the child. 1 In considering a child’s preference with respect to his or her custodian, that preference is “ ‘followed only if the welfare and interest of the child, as determined by all the evidence, are consistent with that preference.’ ” L. v. D., 630 S.W.2d 240, 242 (Mo.App.1982), quoting Kanady v. Kanady, 527 S.W.2d 704, 707 (Mo.App.1975). See also, T.C.H. v. K.M.H., 784 S.W.2d 281, 285 (Mo.App.1989).

A trial court’s determination of child custody will not be disturbed on appeal unless the appellate court is firmly convinced that the welfare of the child affected requires a different disposition. P.LW. v. T.R.W., supra. This court is not so convinced.

The record on appeal does not reveal that the trial court’s ruling was against the logic of the circumstances presented by the evidence. Its ruling was neither arbitrary nor unreasonable. It did not abuse its discretion in denying father’s request for transfer of custody of Christopher. See In Re Marriage of Patroske, 888 S.W.2d 374, 383 (Mo.App.1994); In Re Marriage of V.A.E. and D.A.E., 873 S.W.2d 262, 268 (Mo.App.1994). Father’s point on appeal is denied.

No.

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921 S.W.2d 624, 1996 Mo. App. LEXIS 715, 1996 WL 208411, Counsel Stack Legal Research, https://law.counselstack.com/opinion/breckner-v-coble-moctapp-1996.