E____ (S____) v. E____

507 S.W.2d 681
CourtMissouri Court of Appeals
DecidedMarch 4, 1974
DocketKCD 26699
StatusPublished
Cited by19 cases

This text of 507 S.W.2d 681 (E____ (S____) v. E____) 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
E____ (S____) v. E____, 507 S.W.2d 681 (Mo. Ct. App. 1974).

Opinion

507 S.W.2d 681 (1974)

L____ E ____ (S____), Appellant,
v.
J____ A ____ E ____, Respondent.

No. KCD 26699.

Missouri Court of Appeals, Kansas City District.

March 4, 1974.
Rehearing Denied April 2, 1974.

*682 Sylvester Powell, Jr., and Richard H. Heilbron, Kansas City, for appellant; Heilbron & Powell, Kansas City, of counsel.

John B. Ewing, Jr., Kansas City, for respondent.

Before PRITCHARD, P. J., and SWOFORD and SOMERVILLE, JJ.

SWOFFORD, Judge.

This appeal is from a judgment in the court below involving the custody of five minor sons of the parties. The judgment under review changed the custody of these children from the mother-appellant to the father-respondent.

Before reaching the merits of this appeal disposition must be made of a motion filed by appellant to strike respondent's brief, which motion was taken with the case. The basis of this motion is that *683 such brief contained a statement of facts which was argumentative, inaccurate and otherwise violated the requirements of Rule 84.04(f), V.A.M.R. In our review of the transcript and briefs looking toward a decision on the merits we have kept in mind this motion, and reviewed the appellant's suggestions in support thereof and respondent's opposing suggestions. This whole record is surcharged with the high emotions of the parties and the strenuous, forceful and sometimes emotional advocacy of counsel. Even if respondent's brief were clearly subject to the objections lodged against it (which we do not believe to be the case), no useful purpose would be served by "striking" it. Appellant's motion seeking such an order is overruled.

This matter involves the traumatic circumstance of a bitter tug-of-war between the parents of five boys, now aged 16, 14, 11, 7 and 6 years. The custody of these lads was granted to the mother-appellant in the underlying uncontested divorce action on August 18, 1971, which decree also granted father-respondent visitation rights. The matter before us is an appeal from a judgment of the court below denying the mother's motion to modify the original decree to permit her to remove the children from Missouri to the vicinity of Chicago, Illinois and granting the father's amended motion to modify and awarding him custody of the children, subject to certain rights of visitation vested in the mother-appellant. On these motions the court below held extensive hearings during the course of which it heard the testimony of the parties and thirteen other witnesses and which hearings resulted in a transcript on appeal of 492 pages and the introduction of twenty-seven exhibits. After these hearings and the submission of briefs on the law, the court below made extensive and careful findings of fact and conclusions of law and entered the judgment above noted from which the mother appeals. She urges the reversal of such judgment upon the grounds: 1) the father failed to sustain his burden of proof that the mother was an "unfit" mother to retain custody; 2) the father failed to sustain his burden of proof that the welfare of the children would be best served by granting the custody to him; 3) that there was no evidence of substantial change in circumstances warranting a modification; 4) that the court improperly admitted evidence of an extra-marital affair of the mother-appellant's present husband (the children's stepfather) with another woman occurring prior to the underlying divorce here; and 5) the mother's motion to modify the custody award and permit her to move the children to Illinois should have been sustained since such a move was in their best interest.

In this appeal we review the entire record on both the law and the facts and reach our own independent findings and conclusions. In so doing, however, we accord due deference to the trial court's findings unless they are clearly in conflict with the preponderance of the evidence, disclose an abuse of discretion or are clearly erroneous. This is particularly true upon matters of credibility. Rule 73.01(d), V.A.M.R.; Zimmerman v. Zimmerman, 422 S.W.2d 386, 388-389 (Mo.App.1967); Eissler v. Eissler, 468 S.W.2d 217, 221 (Mo.App.1971); C____ C____ v. J____ A ____ C ____, 499 S.W.2d 809, 811 (Mo.App.1973).

In these regards the review of a child custody judgment does not differ from that of any other court-tried case. But in matters involving custody our courts have refined and further defined these general principles. The "guiding star" and the one tantamount and inflexible consideration of both the court below and this court is the present and future welfare and interests of the children involved. It is not our proper function to compare or weigh fault or innocence of the divorced parents, except as such bears upon the custodial welfare of the children. Cascio v. Cascio, 485 S.W.2d 857, 859 (Mo.App.1972); Pelts v. Pelts, 425 S.W.2d 269, 271 (Mo.App.1968); C____ C ____ v. J ____ A ____ C ____, supra, 499 S.W.2d at l. c. *684 811. In performing this function we can and should indulge the presumption that the trial court considered all the evidence and decreed the custody of the children by what it believed to be in their best interests and, in so doing, we must bear in mind that it was in a better position not only to judge the credibility of the witnesses and the persons directly but also their sincerity and character and other trial intangibles which may not be completely revealed by the record. Graham v. Graham, 428 S.W.2d 941, 944 (Mo.App.1968); Wagner v. Wagner, 465 S.W.2d 655, 659 (Mo.App.1971); M____ C____ A____ v. G____ H____ A____, 493 S.W.2d 660, 663 (Mo.App.1973). Thus, the trial court's findings on the motions to modify custody of the children here involved should not be lightly disturbed. Watkins v. Watkins, 230 S.W.2d 778, 782 (Mo.App.1950); Tootle v. Tootle, 329 S.W.2d 218, 224 (Mo.App.1959); Leaton v. Leaton, 435 S.W.2d 408, 412 (Mo.App.1968).

With these firmly established rules governing the scope of our review in mind we have carefully examined the transcript of testimony, the pleadings and briefs, the findings and conclusions of the trial court, the applicable decisional law cited to us and disclosed by our independent research and we affirm the judgment below.

Before reviewing the ultimate facts and reasons leading to this decision it should be noted that the mother-appellant's point that there was not a sufficient showing of change of condition to warrant the exercise of the trial court's judgment is completely without merit. Both parties invoked the court's jurisdiction to that end and the record abundantly supports the fact that conditions of the parties and the children had drastically changed since the divorce.

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507 S.W.2d 681, Counsel Stack Legal Research, https://law.counselstack.com/opinion/e____-s____-v-e____-moctapp-1974.