In Re DMS

96 S.W.3d 167, 2003 WL 245366
CourtMissouri Court of Appeals
DecidedFebruary 5, 2003
Docket24718
StatusPublished

This text of 96 S.W.3d 167 (In Re DMS) 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
In Re DMS, 96 S.W.3d 167, 2003 WL 245366 (Mo. Ct. App. 2003).

Opinion

96 S.W.3d 167 (2003)

In the Interest of D.M.S. and S.A.M.I.
M.I., Appellant,
v.
M.L.S., Respondent.

No. 24718.

Missouri Court of Appeals, Southern District, Division Two.

February 5, 2003.

*170 J. Michael Rumley, Kansas City, MO, for Appellant.

Dennis Owens, Kansas City, MO, David E. Bailey, Clinton, MO, for Respondent.

JAMES K. PREWITT, Presiding Judge.

M.I. ("Mother") appeals from a judgment that modified an initial custody decree by changing primary physical custody of D.M.S. from Mother to M.L.S. ("Father") and granted Father primary physical custody of S.A.M.I. In five of Mother's six points on appeal, she contends that the trial court's findings that changed circumstances occurred to warrant a modification in custody of D.M.S. were not supported by substantial evidence. In her sixth point, she argues that the trial court erred in finding that it would be in the best interests of the two minor children to be placed in the primary physical custody of Father.

Mother and Father, who were never married, have two children, D.M.S. (born May 4, 1996) and S.A.M.I. (born October 6, 1998). Mother has one other child, M.W., whose custody is not at issue in this case. On August 18, 1998, Father was declared the father of D.M.S. and Mother and Father were awarded joint legal custody of the child, with Mother designated the primary physical custodian.

On October 23, 2000, Father filed a motion to modify decree of paternity as to child custody and support with respect to D.M.S. Mother filed an answer and counter-motion to modify the paternity decree as to child visitation on December 20, 2000.

On February 16, 2001, Father filed a petition for determination of paternity, joint custody, and visitation concerning S.A.M.I. Mother filed an answer and counter-petition for determination of parentage on March 22, 2001. The trial court consolidated the cases involving the two children.

The trial was held in July and December of 2001, and on December 20, 2001, the trial court entered its judgment in the cases. The judgment included findings that Father was the father of both D.M.S. and S.A.M.I.; substantial and continuing changes had occurred such that the prior custody, visitation, and support judgment regarding D.M.S. should be changed; and it was in the best interests of both children for Mother and Father to be awarded joint legal custody of D.M.S. and S.A.M.I., with Father named their primary physical custodian. Mother's appeal followed.

Mother's first five points relate to the custody modification involving D.M.S. Mother contends that none of the trial court's findings of changed circumstances constituted a substantial change sufficient enough to warrant the modification of primary physical custody, and that none of the findings were supported by substantial evidence. The trial court listed five substantial *171 and continuing changes in D.M.S.'s circumstances that it determined warranted the modification. They are listed below; Mother addresses each of the five circumstances as separate points.

A. [D.M.S.] being physically abused in 2000 by [Mother's] live-in paramour Chico Cook ["Cook"];

B. [D.M.S.] being burned by a cigarette while riding in the back seat of [Mother's] car on the lap of a person she had picked up;

C. By [D.M.S.] witnessing arguments between [Mother] and ... Cook;

D. By [D.M.S.'s] sister, [S.A.M.I.], and his half-brother, [M.W.] witnessing a knife fight in the summer of [2001] that involved passengers in [Mother's] car; and,

E. [D.M.S.] being excessively absent from preschool.

We will affirm a judgment in a custody modification case if it is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law. In re Marriage of Eikermann, 48 S.W.3d 605, 608 (Mo.App.2001). When there is conflicting evidence, it is in the trial court's discretion to determine the credibility of the witnesses, and accept or reject all, part, or none of the testimony it hears. Id. In assessing the sufficiency of the evidence, we examine the evidence and its inferences in the light most favorable to the trial court's judgment. In re McIntire, 33 S.W.3d 565, 568 (Mo.App.2000).

Greater deference is given to a trial court's determination in matters involving child custody than in any other type of case. Id. We exercise extreme caution in considering whether a judgment should be set aside on the ground that it is against the weight of the evidence, and will do so only upon a firm belief that the judgment was wrong. Eikermann, 48 S.W.3d at 608.

The criteria under which a trial court may modify a child custody decree is established by § 452.410, RSMo 2000. Beckwith v. Giles, 32 S.W.3d 659, 664 (Mo.App.2000). "[T]he 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." § 452.410.1, RSMo 2000. There is a presumption that the party awarded custody in the original decree is a suitable custodial parent, and the party seeking a change of custody bears the burden of proving a change in circumstances requiring modification. Eikermann, 48 S.W.3d at 609. A change in circumstances that warrants modification must be substantial or significant, but not necessarily continuing in nature. McIntire, 33 S.W.3d at 569.[1]

As this is an appeal from a judge-tried case, the appellate court is concerned only with the correctness of the result, not the route taken to reach it. Hunt v. Hunt, 65 S.W.3d 572, 579 n. 10 *172 (Mo.App.2002). We will affirm a judgment that reaches the correct result even if the trial court has given a wrong or insufficient reason for its decision. Id.

The first changed circumstance listed by the trial court was that Cook, Mother's live-in boyfriend, had physically abused D.M.S. in 2000. There was testimony that after a small hole had been burned in D.M.S.'s bed, Cook grabbed the child and spanked him. D.M.S. had retrieved a lighter from a counter, where it had been left within his reach.

Mother's mother, Francis, testified that when she confronted Cook about the incident, D.M.S. ran out of his room to her. Cook told D.M.S. to go back to his room, pushed him, and closed the front door of the house to keep Francis from entering. Francis did enter and took D.M.S. to the home of another daughter who lived nearby. An argument ensued between Cook and Francis over his treatment of the children, and Francis later called Father to tell him of the incident after which time she and Father spoke with a juvenile officer and Father told the officer that he thought the children were being abused.

There was testimony that Francis was aware that Cook had been whipping D.M.S., which left welts. Although there were no pictures admitted into evidence showing that level of injury, pictures were introduced during Mother's testimony showing burn marks and bites on D.M.S.

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Bluebook (online)
96 S.W.3d 167, 2003 WL 245366, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-dms-moctapp-2003.