Not overruled or negatively treated on appealinfoCoverage
Missouri Court of Appeals, Eastern District, Division One.Sep 30, 2014
442 S.W.3d 139 (E.D. Mo. 2014)

No. ED 100700.


Gregory A. LANDWEHR, Respondent, v. Julie B. LANDWEHR, Appellant.

Taylor Goodale, Union, MO, for appellant.David L. Baylard, Union, MO, for respondent.

Taylor Goodale, Union, MO, for appellant. David L. Baylard, Union, MO, for respondent.


Julie Landwehr (Mother) appeals the trial court's judgment modifying a previous joint custody decree and awarding to Greg Landwehr (Father) sole physical and legal custody of the couple's son. Mother asserts that the trial court erred by not appointing a guardian ad litem. We affirm.

Moreover, even had the pleadings or trial record contained sufficient allegations of abuse to warrant the involvement of a GAL under § 452.423.2, Soehlke instructs that, in order to compel reversal, Mother must also overcome Rule 84.13(b) (prohibiting reversal where an error doesn't materially affect the outcome) by demonstrating that the court's failure to appoint a GAL was detrimental to Son's best interests.

[W]hen an appellant seeks a new trial based on a claim that the trial court erred in applying section 452.423.2, Rule 84.13(b) prohibits the appellate court from granting a new trial unless the appellant clearly demonstrates both that the result of the trial court's failure to appoint a guardian was that the child's interest was not adequately protected at trial, and that this resulted in the trial court imposing modifications that were not in the child's best interest
398 S.W.3d at 15–16. Mother has not satisfied this burden here. She argues that the absence of a GAL left Son unprotected from future neglect or from the harm caused by false allegations, in either case yielding a custody modification that was not in Son's best interests. But neither the record nor the result supports her contention. Father adduced no evidence of neglect at trial and essentially abandoned the issue, focusing instead on Mother's alcoholism and related behavior, regarding which the evidence was uncontested. In other words, there were no false allegations from which Son needed protection. Furthermore, the resulting judgment did not leave Son unprotected from future neglect but, on the contrary, sought to prevent that eventuality. Ultimately, and mindful that our standard of review demands great deference to the trial court in these matters ( Noland–Vance v. Vance, 321 S.W.3d 398, 403 (Mo.App.S.D.2010)), Mother fails to persuade us that the custody modification reached by the court without a GAL's input was adverse to Son's best interests. “The best interest of the child is not merely an important consideration in modification proceedings under § 452.410, it is the trial court's central concern.” Soehlke, 398 S.W.3d at 15. Our role is to determine whether the record contains sufficient evidence to support the trial court's assessment, accepting all evidence and inferences favorable to the judgment. H.J.I. by J.M.I. v. M.E.C., 961 S.W.2d 108, 115 (Mo.App.W.D.1998). Here, the record supports a finding that Son's best interests are served in Father's sole custody. As such, the absence of a GAL did not result in material prejudice to Son as required for Mother to receive a new trial under Soehlke and Rule 84.13(b). Result

The present case is factually distinguishable from this court's recent decision in Copling v. Lin Gao, 434 S.W.3d 85 (Mo.App.E.D.2014). There, the mother had sought adult and child orders of protection against the father. She pleaded facts relating to domestic violence in her answer to the father's petition and continued to emphasize them in her trial testimony in a manner sufficiently specific to trigger mandatory appointment of a GAL under § 452.423.2. Moreover, the absence of a GAL was detrimental to the child's best interests there in that the trial court awarded sole custody to the allegedly abusive father notwithstanding the mother's allegations of domestic violence. The child was prejudiced in that she was deprived of a GAL to investigate those allegations and inform the court's decision accordingly. Here, by contrast, Father's pleadings and trial testimony did not contain concrete factual allegations signaling neglect so as to invoke the statute. Furthermore, the trial court awarded sole custody to Father-not to Mother, at whom the allegations were directed-so there was no prejudice.

The trial court's judgment is affirmed. ROY L. RICHTER, P.J., and GLENN A. NORTON, J., concur.