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E.S. (K.) D. v. J.A.K.

Court of Appeals of Missouri, Western District, Second Division

February 21, 2017

E.S. (K.) D., Respondent,
v.
J.A.K., F.K. and J.K., Appellants.

         Appeal from the Circuit Court of Clay County, Missouri The Honorable David P. Chamberlain, Judge

          Before Cynthia L. Martin, Presiding Judge, Thomas H. Newton, Judge and Alok Ahuja, Judge

          Cynthia L. Martin, Judge

         J.A.K. ("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.

         Factual and Procedural History

         Father 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 452.377.11.[1]

         Grandparents 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.

         At some 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.

         In 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.

         The 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.[2] 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).

         On 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.

         Standard of Review

         "As 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 quotation omitted)).

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 not sufficient."

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 omitted)).

         Analysis of Grandparents' Points on Appeal

         Grandparents 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 collectively.

         With 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.

         However, "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 grandparent visitation.

         Even 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.[3] 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.

         In Point Two, Grandparents argue that it was error to find that Grandmother's petition for grandparent visitation was barred by res judicata. Grandparents' ...


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