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Landwehr v. Landwehr

Court of Appeals of Missouri, Eastern District, First Division

July 8, 2014

GREGORY A. LANDWEHR, Respondent,
v.
JULIE B. LANDWEHR, Appellant

Appeal from the Circuit Court of Franklin County. Hon. Gael Wood.

For appellant: Taylor Goodale, Union, MO.

For respondent: David L. Baylard, Union, MO.

CLIFFORD H. AHRENS, Judge Roy L. Richter, P.J., concurs. Glenn A. Norton, J., concurs.

OPINION

CLIFFORD H. AHRENS, Judge

Page 140

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.

Background

The parties' marriage was dissolved in October 2010, and they received joint legal and physical custody of their two children, Daughter (then 17) and Son (then 8). In January 2013, Father filed a motion for modification seeking sole legal and physical custody based on allegations that Mother had become an alcoholic whose impaired judgment posed a danger to the children. As relevant to the issue on appeal, Father's pleadings alleged that Mother's " alcohol and drug abuse has clouded her judgment and makes her an unfit custodian of the parties' children, whom she has neglected." Despite this general allegation of neglect, neither party requested appointment of a GAL, nor did the court appoint one sua sponte.

At trial, Father appeared through counsel, and Mother appeared pro se. The record suggests that Daughter was in college and emancipated by that time, so the evidence related solely to custody of Son, then 11. Father and Daughter both testified about an incident when Mother arrived at Father's house for a custody exchange (by car) severely intoxicated. Father also adduced evidence that Mother wrecked her car and had her driver's license revoked for driving while intoxicated. Daughter testified that she once smelled marijuana wafting from Mother's bedroom; Mother admitted this but claimed that her boyfriend was the one smoking. Daughter further testified that Mother denied having an alcohol problem and it was in Son's best interest to reside with Father. Finally, Father testified that Son had expressed a desire to reside with Father. Son was sworn in to offer his own testimony, but the court found it unnecessary to proceed.

Based on the foregoing evidence, the trial court awarded Father sole legal and physical custody of Son. Mother was awarded visitation consisting of one week night per week and alternating weekends, with the additional proviso that Mother and her acquaintances remain sober in Son's presence. Mother appeals, asserting that the trial court erred by not appointing a guardian ad litem in light of Father's allegation of neglect.

Standard of Review

On appeal, the trial court's judgment will be affirmed 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. Jansen v. Westrich,95 S.W.3d 214, 217-18 (Mo. App. 2003), citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). ...


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