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August 24, 1993



Before Ulrich, P.j.; Berrey and Smart, JJ.

The opinion of the court was delivered by: Smart

This case involves an appeal from the trial court's denial of a motion to modify child custody and support. Alfred Hoefer appeals from the trial court's order allowing Deborah Hoefer to retain custody of their two minor children and awarding child support in the amount of $518.00 per month. Deborah Hoefer cross-appeals from the trial court's order denying her request for attorney's fees on appeal.

Judgment is affirmed.

The marriage of Alfred Hoefer ("Husband") and Deborah Hoefer ("Wife") was dissolved on April 13, 1988. Pursuant to the dissolution decree, Wife was awarded sole custody of the two minor children, Nicholas and Colby, and Husband was awarded visitation rights. Wife experienced personal health problems during the period of her divorce, which continued for several months thereafter. She twice had surgery for cervical cancer during this period. During her illness and recovery, Wife allowed the children to live with their father in Higginsville, Missouri. The boys resided with their father for approximately three years. During this period, Wife never relinquished her custodial rights to Husband, and Husband did not object to the arrangement. After Wife had fully recovered from her bout with cancer, she decided to allow the children to remain with their father because they seemed to be happy and healthy in that environment.

During their stay with their father, the boys experienced some medical problems. In July of 1991, Colby, the youngest child, had a urinary tract infection which ultimately required surgery. The oldest son, Nicholas, was suffering from claustrophobia which required counseling. Husband failed to seek satisfactory treatment for the children's ailments. Additionally, evidence presented at trial showed the children lived in unsanitary conditions. As a result of these developments, Wife concluded that Husband was unable to properly care for the children and, on August 10, 1991, she decided to retain the children in her custody during a scheduled visitation, intending to maintain sole physical custody from that point forward.

On March 8, 1991, Husband filed a motion to modify the decree of dissolution as to child custody and support. Wife's response requested that the court deny Husband's motion and also requested that the court permit her and the children to reside in Johnson County, Kansas (which is adjacent to Jackson County, Missouri). On December 3, 1991, the trial court ordered the appointment of a Guardian Ad Litem, David Bosch. Mr. Bosch testified at trial that Husband told Mr. Bosch that he had no intention of cooperating with him or paying any part of his fee, regardless of what the court ordered. Mr. Bosch recommended that the children remain in their mother's custody. On April 7, 1992, after dismissing two attorneys, Husband proceeded pro se and filed a motion to modify child support, a motion for hearing on allegations of contempt alleging parental kidnapping, and a request for a mental and physical examination.

A hearing was held on Husband's motions on June 29 and July 1, 1992. On August 14, 1992, the trial court denied all of Husband's motions, allowed Wife to retain legal custody of the children, granted Wife permission to remove the minor children to Johnson County, Kansas, and ordered Husband to pay $518.00 a month in child support. Both children have resided with their mother in Olathe in Johnson County, Kansas, for about two years and seem to be happy, healthy and well-adjusted. On September 28, 1992, Wife filed a motion for attorney's fees on appeal which was denied by the trial court on November 17, 1992. Husband and Wife both appeal the trial court's order. Wife further requests this court to award her reasonable attorney's fees for costs incurred on appeal.

Sufficiency of the Evidence

Husband's first point on appeal is that the trial court erred in its determination that legal custody of the minor children should remain with Wife because the decision was against the weight of the evidence. Husband contends that the children were well cared for and happy in his physical custody and that it was in their best interests to remain with him.

An appellate court must affirm the judgment of the trial court unless the judgment is clearly against the weight of the evidence or the judgment erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). This court will not disturb the trial court's custody award unless it finds it to be manifestly erroneous. Ibrahim v. Ibrahim , 825 S.W.2d 391, 397 (Mo. App. 1992). The key focus in child custody disputes is determining what is in the best interest of the children. Id . Section 452.410, RSMo Supp. 1992 sets forth the guidelines for modification of a divorce decree and provides:

The 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. . . .

After child custody has been adjudicated in a dissolution of marriage proceeding, the custodian of the children is presumed suitable and the party seeking to change the custody has the burden of showing a substantial change of conditions mandating the requested change to further the best interests of the child. In re Marriage of Harris , 734 S.W.2d 304, 305 (Mo. App. 1987). Furthermore, an appellate court defers to the trial court for determination of witness credibility issues. Behnke v. Behnke , 829 S.W.2d 45, 46 (Mo. App. 1992).

In the original dissolution of marriage proceeding, the trial court awarded custody of the minor children to Wife. During the time of the proceeding and for some time thereafter, Wife suffered from cervical cancer and underwent two surgeries to eliminate the cancer. Husband agreed to take responsibility for the children during Wife's illness and the children were in his custody while Wife recovered from her cancer surgery. After Wife felt she could aptly care for the children again, she decided it was in the children's best interest at that time to stay in the custody of their father. According to Wife's testimony, she was concerned about uprooting the boys from their school and their friends and it appeared at that time that Husband was taking good care of the boys. However, Wife began discovering that the boys were experiencing some health problems and she did not believe that Husband was providing the proper medical treatment for the boys. She also determined that the sanitary ...

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