Court of Appeals of Missouri, Western District, Second Division
E.S. (K.) D., Respondent,
J.A.K., F.K. and J.K., Appellants.
from the Circuit Court of Clay County, Missouri The Honorable
David P. Chamberlain, Judge
Cynthia L. Martin, Presiding Judge, Thomas H. Newton, Judge
and Alok Ahuja, Judge
Cynthia L. Martin, Judge
("Father") appeals from a judgment denying
Father's motion to modify the amount of child support he
was required to pay to E.S. (K.)D. ("Mother"). F.K.
("Grandfather") and J.K. ("Grandmother")
(collectively "Grandparents") appeal from the same
judgment which also denied their petition seeking grandparent
visitation. Finding no error, we affirm.
and Procedural History
and Mother were married in February 1999, and six children
were born of the marriage, none of whom are emancipated. The
marriage was dissolved on September 17, 2014
("Dissolution Decree"). In the Dissolution Decree,
the trial court found that "[c]riminal charges have been
filed against [Father] involving the minor children, "
and that "[g]iven the nature of the charges against
[Father], the parties agree that [Mother] shall have sole
legal and sole physical custody of the minor children and . .
. [that Father] shall not have any contact with the minor
children." The Dissolution Decree also found that the
duly calculated presumed child support amount was $1, 703.00,
but that "the parties have requested and the Court finds
that amount to be unjust and inappropriate, " and that
the "parties have requested and the court approves child
support in the amount of $1, 800.00 per month." The
Dissolution Decree permitted Mother to relocate without
complying with the provisions of section
were permitted to intervene in the dissolution proceedings
and filed a petition for grandparent visitation. The trial
court entered a temporary order permitting limited and
supervised grandparent visitation. On the day the Dissolution
Decree was entered, however, Grandparents dismissed their
petition for grandparent visitation with prejudice. The
Dissolution Decree, and the parenting plan entered in
connection therewith, did not afford Grandparents any
visitation with the minor children.
point after the Dissolution Decree was entered, Mother
relocated with the minor children to Florida. On February 10,
2015, Father filed a motion for contempt, and a motion to
modify the Dissolution Decree and parenting plan to prevent
relocation and to order return of the minor children to
Missouri. Father's motion also alleged that changed
financial circumstances warranted recalculation of his child
support obligation. Mother responded, and among other things,
filed a motion for contempt due to Father's failure to
perform certain terms of the Dissolution Decree relating to
the division of marital property and debts.
April 2015, Grandparents filed a motion to intervene in the
proceedings. That motion was granted, and Grandparents
thereafter filed a Petition for Third Party Custody, Or in
the Alternative, for Grandparent Visitation ("Visitation
Petition"). The Visitation Petition did not reference
the Dissolution Decree or the existing parenting plan. The
Visitation Petition did not request modification of the
Dissolution Decree or the existing parenting plan.
pending matters not otherwise resolved or abandoned proceeded
to trial before the court on November 18, 2015. The parties
stipulated that the only issues the trial court needed to
determine at trial were: (i) Father's motion to modify
child support; and (ii) Grandparent's request for
grandparent visitation. Father abandoned, therefore, his motion
to modify the Dissolution Decree and parenting plan to
prevent relocation and to require return of the minor
children to Missouri. And Grandparent's abandoned their
request for third-party custody of the minor children
pursuant to section 452.375.5(5).
December 21, 2015, the trial court entered its judgment
("Judgment") denying Father's motion to modify
his child support obligation and denying Grandparent's
request for grandparent visitation. The Judgment included
factual findings and legal conclusions, although no party
requested findings of fact and conclusions of law in the
manner required by Rule 73.01(c). Father and Grandparents
filed a motion to amend the Judgment pursuant to Rule
78.07(c), which was denied. This appeal follows.
in any court tried case, we review the trial court's
judgment under the standard of review established in
Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc
1976)." Blue Ridge Bank and Trust Co. v. Trosen
(Trosen II), 309 S.W.3d 812, 815 (Mo. App. W.D.
2010). "Accordingly, the judgment of the trial court
will be affirmed unless it is not supported by substantial
evidence, it is against the weight of the evidence, or it
erroneously declares or applies the law." Id.
(quoting McNabb v. Barrett, 257 S.W.3d 166, 169 (Mo.
App. W.D. 2008) (internal quotation omitted)). "We view
the evidence, and permissible inferences therefrom, in the
light most favorable to the trial court's judgment, and
we disregard all contrary evidence and inferences."
Id. (quoting Brown v. Mickelson, 220 S.W.3d
442, 447 (Mo. App. W.D. 2007) (internal quotation omitted)).
"We defer to the trial court's factual findings,
giving due regard to the trial court's opportunity to
judge the credibility of the witnesses." Id.
(quoting Brown, 220 S.W.3d at 447) (internal
This court "is primarily concerned with the correctness
of the trial court's result, not the route taken by the
trial court to reach that result. Thus, the judgment will be
affirmed if cognizable under any theory, regardless of
whether the reasons advanced by the trial court are wrong or
Id. at 815-16 (quoting Blue Ridge Bank &
Trust Co. v. Trosen (Trosen I), 221 S.W.3d 451,
457 (Mo. App. W.D. 2007) (internal quotation and citation
of Grandparents' Points on Appeal
raise three points on appeal. Point One argues that the trial
court committed legal error by concluding that Grandfather
abandoned his claim for grandparent visitation because he did
not testify at trial. Point Two argues that the trial court
committed legal error by concluding that Grandmother's
petition for grandparent visitation was barred by res
judicata because she earlier dismissed with prejudice the
petition for grandparent visitation filed in the dissolution
proceedings. Point Three argues that the trial court erred in
alternatively denying Grandmother's petition for
grandparent visitation on its merits because no evidence
supported the trial court's factual conclusion that
Father was a convicted felon. We address the points
respect to Point One, the Judgment found that Grandfather
"did not testify in support of his own motion" for
grandparent visitation, and that Grandfather's
"request for grandparent visitation is therefore
abandoned and denied." Grandfather correctly notes that
although he bore the burden to prove and persuade the trial
court that he should be awarded grandparent visitation, there
is no authority for the proposition that he was required to
personally testify in order to sustain his burden.
"Rule 73.01(c) provides that 'all fact issues upon
which no specific findings are made shall be considered as
having been found in accordance with the result
reached.'" Ivie v. Smith, 439 S.W.3d 189,
200 (Mo. banc 2014) (quoting In re J.A.R., 426
S.W.3d 624, 626 (Mo. banc 2014)). A party seeking grandparent
visitation must establish that the visitation "would be
in the child's best interest, " and "would
[not] endanger the child's physical health or impair the
child's emotional development." Section 452.402.2.
The denial of Grandfather's visitation request can be
fairly interpreted as the trial court's finding that
Grandfather failed to sustain this burden, particularly in
light of his failure to testify. It is well-settled that the
failure of a party to testify on his or her own behalf,
having knowledge of the facts and circumstances vitally
affecting the issues at trial, raises a strong presumption
that such testimony would have been unfavorable to the party.
In re S.M.B., Jr., 254 S.W.3d 214, 220-21 (Mo. App.
S.D. 2008); see also Bair v. Faust, 408 S.W.3d 98,
103 (Mo. banc 2013) (the adverse inference rule "allows
for 'an unfavorable inference to be drawn against a
party, knowledgeable of the facts of the controversy, who
fails to testify'") (quoting Pasternak v.
Mashak, 428 S.W.2d 565, 568 (Mo. 1967)). Here, Mother
presented evidence that Grandfather had sexually molested his
own daughter, Father's sister, when daughter was younger,
and that Grandmother was contemporaneously aware of
daughter's allegations. Grandfather's silence in the
face of such serious allegations was permissibly relied on by
the trial court to draw unfavorable inferences against
Grandfather that supported the denial of his request for
were we to conclude, which we do not, that the trial court
erroneously deemed Grandfather's petition for grandparent
visitation abandoned based solely on his failure to testify,
Grandfather would not be entitled to relief. We are required
to affirm the trial court's Judgment "if cognizable
under any theory, regardless of whether the reasons advanced
by the trial court are wrong or not sufficient."
Trosen II, 309 S.W.3d at 815-16 (quoting Trosen
I, 221 S.W.3d at 457). As we discuss in connection with
Point Two, Grandparents did not seek grandparent visitation
in a manner authorized by statute, a conclusion the trial
court expressly reached with respect to Grandmother, and that
is equally applicable to Grandfather.
Point Two, Grandparents argue that it was error to find that
Grandmother's petition for grandparent visitation was
barred by res judicata. Grandparents' ...