Randel v. McClanahan

FENNER, Judge. This is an appeal from an order modifying a dissolution decree transferring custody of a minor child, Robert Owen McClana-han (Robby), from his mother, Lyn Marie Randel to his father, Jack Owen McClana-han. The marriage of the parties was dissolved by the Circuit Court of Clay County on June 7, 1979. At the time of the dissolution, custody of the adopted son of the parties, Robby, was awarded to his mother whose name is now Lyn Marie Randel. Jack McClanahan filed a motion to modify the dissolution decree on March 4, 1986, seeking to change custody of Robby. A [608] hearing was held on January 27th and 28th, 1988, at the conclusion of which the court entered its order changing custody of Robby from his mother to his father. Lyn Randel appeals the court’s order arguing that the trial court erred in transferring custody of Robby because there was no demonstration that a change in circumstances of either Robby or herself had occurred that would justify a change of custody. The review of this court tried case is governed by Rule 73.01 and the landmark decision of Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Therefore, upon review, the decision of the trial court must be sustained unless there is not substantial evidence to support the decision, it is against the weight of the evidence, or that it erroneously declares or applies the law. Id. at 32. Inherent within review of court tried cases, the trial court has the prerogative to determine the credibility of witnesses; accepting or rejecting all, part or none of their testimony. In re the Marriage of Scobee, 667 S.W.2d 467, 468 (Mo.App.1984). When the trial court has received conflicting evidence, appellate courts should review the facts in the light most favorable to the trial court’s order. Trenton Trust Co. v. Western Surety Co., 599 S.W.2d 481, 483 (Mo. banc 1980); In Interest of M.E.W., 729 S.W.2d 194, 196 (Mo. banc 1987). In reviewing the decision of a court tried case, the primary concern of the appellate court is the correctness of the result that is reached, and the lower court’s judgment is to be affirmed if it is correct under any reasonable theory supported by all the evidence. St. Louis County, Mo. v. Oakville Development, 676 S.W.2d 919, 921 (Mo.App.1984). Modification of a prior custody decree is controlled by Section 452.410, RSMo 1986, which states: The court shall not modify a prior custody decree unless ... 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. The record in this case reflects that substantial evidence existed for the trial court to conclude that a change of circumstances had arisen since the prior decree with respect to Robby and his mother and that a change in custody from the mother to the father was in Robby’s best interest. Jack McClanahan testified at trial that he knew of twenty different places Lyn Ran-del had lived since their divorce and that Robby had been in four or five different schools in the same period. Lyn Randel had been remarried and divorced twice since her divorce from Jack McClanahan. In one of her subsequent marriages Lyn Randel was physically abused by her then husband in the presence of Robby. Jack McClanahan testified that Robby had been prone to crying “right Out of the clear blue sky” for the past several years. Jack attributed this to Robby having problems with his mom “having several different boyfriends in and out, leaving him with babysitters all night long, and stuff like that.” The crying was also noted by Jack’s present wife, Laura. Jack testified that there was an instance where Robby wanted to learn karate because he wanted to beat up the man his mother was married to because he was beating her. Jack told of one time when he had to drop Robby off at the Roadway Inn Motel because his mother had separated from her husband at the time. Jack said that Robby was very upset and that Robby said “here we go again, she’s going to do it to me again.” Jack also said that when Robby would come to visit him Robby’s clothes were shabby, his pants had the knees ripped out and were too short, and his shoes were too tight. There was testimony before the trial court that Lyn Randel had been employed at over ten different places since the date of the dissolution of her marriage from Jack McClanahan and that she had only two jobs that she had been able to hold for over one year. [609] Jack McClanahan testified that his ex-wife Lyn blocked his efforts to keep up with Robby’s progress in school. Robby has a learning disability and Jack testified that he and his present wife, Laura, have taken numerous steps to learn ways to approach learning disabled children and have made an effort to work with Robby when he is with them. Laura has taken an advanced learning disability class at St. Mary’s College in Leavenworth, Kansas, to learn more about learning disability problems and how to work with them. Robby was eleven years old at the time of the hearing and he expressed his desire to live with his father. Robby’s wishes are not determinative, but they are a factor to be considered by the court. Knoblauch v. Jones, 613 S.W.2d 161, 167 (Mo.App.1981). It is recognized by this court that child custody decisions are most often difficult decisions to make and rarely are they based upon unequivocal evidence of what is in the best interest of the child. Appellant’s love for her son is not in dispute, but under the standard for review as set forth in Murphy v. Carron, supra; In re the Marriage of Scobee, supra; and St. Louis County, Mo. v. Oakville Development, supra, the judgment of the trial court is found to be based upon substantial evidence when accepting as true the evidence in support thereof and disregarding the contradictory evidence. The judgment of the trial court is affirmed. KENNEDY, C.J., concurs in separate opinion. BERREY, J., dissents in separate opinion.