Opinion
No. 70033
OPINION FILED: April 22, 1997
APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY, HONORABLE SUSAN E. BLOCK
Irwin M. Roitman, Clayton, for respondent-appellant.
Susan M. Hais, James P, Carmody, Philip E. Adams, Clayton, for movant-respondent.
Before Lawrence G. Crahan, P.J. and Stanley A. Grimm, J. and Mary K. Hoff, J.
ORDER
Diane Hatfield appeals from a judgment granting David Hatfield's motion to modify primary physical custody of the couple's child. The trial court's judgment is supported by substantial evidence and is not against the weight of the evidence. No error of law appears.
An opinion reciting the detailed facts and restating the principles of law would have no precedential value. The parties have been furnished with a memorandum opinion, for their information only, setting forth the facts and reasons for this order.
The judgment is affirmed in accordance with Rule 84.16(b).
MEMORANDUM SUPPLEMENTING ORDER AFFIRMING JUDGMENT PURSUANT TO RULE 84.16(B)
This memorandum is for the information of the parties and sets forth the reasons for the order affirming the judgment.
THIS STATEMENT DOES NOT CONSTITUTE A FORMAL OPINION OF THIS COURT. IT IS NOT UNIFORMLY AVAILABLE. IT SHALL NOT BE REPORTED, CITED, OR OTHERWISE USED IN UNRELATED CASES BEFORE THIS COURT OR ANY OTHER COURT. IN THE EVENT OF THE FILING OF A MOTION TO REHEAR OR TRANSFER TO THE SUPREME COURT, A COPY OF THIS MEMORANDUM SHALL BE ATTACHED TO ANY SUCH MOTION.
Diane Hatfield (Mother) appeals from a judgment granting David Hatfield's (Father) motion to modify. The trial court found continuing changes in Mother and child's circumstances so substantial as to warrant a transfer of primary physical custody of the child to Father. We affirm.
Mother and Father were divorced in St. Louis on August 31, 1992. Pursuant to the decree, the parties were awarded joint legal custody of Jessica Lynn Hatfield (Jessica), the minor child born of the marriage. Mother was awarded primary physical custody of Jessica and Father was awarded specific periods of temporary custody.
On November 7, 1994, Father filed a motion to modify. The next day Father filed a verified application for temporary restraining order and preliminary injunction pending the outcome of his motion to modify. On November 10, 1994, a hearing was held on Father's application for temporary restraining order and preliminary injunction. The trial court interviewed Jessica on the record in the presence of Mother's and Father's attorneys.
On December 7, 1994, Mother agreed to allow Father to keep physical custody of Jessica pending the outcome of his motion to modify. The trial court entered a consent order reflecting the parties' agreement.
On December 13, 1995, a hearing was held on Father's motion. On January 17, 1996, the trial court entered its judgment transferring primary physical and legal custody of Jessica to Father. This appeal followed.
Mother's first point states:
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FAILING TO COMPLY WITH THE MANDATORY PROVISIONS OF RSMo. 452.385 INVOLVING THE MAKING OF A RECORD OF THE TESTIMONY OF JESSICA HATFIELD, A MINOR CHILD, IN CONNECTION WITH THE TRIAL OF THE ISSUES OF MODIFICATION WHEN THE COURT REFERRED TO THE TESTIMONY OF THE MINOR CHILD IN THE JUDGMENT MODIFYING CUSTODY
Section 452.385 RSMo 1994 states:
The court may interview the child in chambers to ascertain the child's wishes as to his custodian and relevant matters within his knowledge. The court shall permit counsel to be present at the interview and to participate therein. The court shall cause a record of the interview to be made and to be made part of the record in the case.
The minutes of the legal file provided to this Court on appeal indicate that Jessica was, in fact, interviewed by the trial court on the record in the presence of the parties' attorneys at the hearing on the temporary restraining order and preliminary injunction. Mother has failed to show how the trial court has violated § 452.385 RSMo 1994 and has also failed to file the transcript of that testimony with this Court. It is not the trial court's duty to provide such transcript on appeal.A.M.S. v. J.L.S., 544 S.W.2d 885, 887 (Mo. App. 1976). Jessica's testimony was on the record in this case and the production of a transcript was not within the trial court's duty.
Furthermore, the only reference in the trial court's judgment to Jessica's prior testimony finds that the child's earlier distress regarding Mother's boyfriend had been alleviated. In this first point, Mother has not suggested how the trial court's consideration of Jessica's prior testimony in this limited regard has either prejudiced her or has led the trial court to a result different than if the trial court had not considered Jessica's testimony. Additionally, it appears that the trial court's consideration of Jessica's testimony for this limited purpose was actually favorable to Mother's position.
In light of Mother's failure both to state how she was prejudiced by this consideration and to provide this Court with a transcript of Jessica's testimony, we do not find error. Point denied.
In her second point, Mother argues the trial court erred in modifying custody because the judgment was not supported by substantial evidence, was against the weight of the evidence, and erroneously declared and applied the law. Specifically, Mother asserts the trial court's findings were not sufficient to support the change in custody and the trial court's recharacterization of a permissible in-state move as a series of traumatic events, misapplies the law.
This Court must affirm the judgment of the trial court unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We should only use our power to set aside a judgment on the grounds that it is against the weight of the evidence with caution and only when we have a firm belief that the decree or judgment is wrong. Id.
In its order transferring custody to Father, the trial court found that:
. . . since the granting of the Decree, there have occurred changes in the circumstances of Mother and the minor child, which are so substantial and continuing in nature that a Modification of the Decree is necessary to serve the best interests and welfare of the minor child. As a result of said changes, the best interests and welfare of the minor child require that Father be awarded the primary physical care, custody and control of the minor child.
5. The Court finds that no one event or incident, including the Spring 1993 argument between [Mother] and David Hughes, in and of itself, constitutes a substantial and continuing change of circumstances.
(Emphasis added).
In its Findings of Fact, Conclusions of Law and Judgment Modifying the Decree of Dissolution, the trial court listed ten changes in circumstances which supported a transfer of primary custody of Jessica to Father. After review of the record and the reasons given by the trial court for the transfer of custody, we cannot say that the conclusion of the trial court to transfer custody to Father should be overturned. There is substantial and competent evidence to support the trial court's conclusion. Additionally, our review of this case does not leave us with the firm conviction that the trial court erred in its conclusion. Point denied.
In her third point, Mother argues the trial court erred in referring, in the judgment modifying custody, to informal recommendations of the guardian ad litem. Mother contends the guardian ad litem had no additional role regarding the modification after the guardian ad litem submitted findings that there was no abuse or neglect of the child.
First, we note that Mother did not object to the guardian ad litem's summation at trial. We can only regard her failure to object at the time the testimony was presented to the trial court as a waiver of the claimed error. Benjamin v. Benjamin, 370 S.W.2d 639, 643 (Mo. App. 1963).
Furthermore, in a court tried case, admission of improper evidence is usually held to be nonprejudicial except where the trial court relied on the inadmissible evidence in making its findings. Washington Univ. v. Royal Crown Bottling Co., 801 S.W.2d 458, 470 (Mo. App. 1990). We will not reverse the decision of the trial court in a court tried case based upon the erroneous admission of evidence unless insufficient evidence remains to support the trial court's judgment. Green v. Lange, 797 S.W.2d 765, 770 (Mo. App. 1990).
In its judgment, the trial court specifically found:
that the oral summation of the Guardian ad Litem, Janet F. Catalona, is not considered as evidence, in and of itself, independent of other pleadings and evidence bearing on the issues addressed in the oral summation. See SanFilippo v. SanFilippo, 637 S.W.2d 77 (Mo. App. 1982).
In SanFilippo, this Court found it was error to admit the oral report of a guardian ad litem if it contained hearsay and opinions which would have been inadmissible as evidence. Id. at 79. However, this Court further found that in a court tried case, erroneous admission of evidence only requires reversal when there is an absence of other sufficient competent evidence to support the decree.Id. Therefore, because the trial court expressly did not consider the oral summation of the guardian ad litem as evidence and because there is substantial and competent admissible evidence that supports the trial court's judgment, we find no error. Point denied.
Judgment affirmed.