Gregory A. Landwehr v. Julie B. Landwehr ( 2014 )

In the Missouri Court of Appeals
Eastern District
DIVISION ONE
GREGORY A. LANDWEHR, ) No. ED100700
)
Respondent, )
) Appeal from the Circuit Court
v. ) of Franklin County
)
JULIE B. LANDWEHR ) Hon. Gael Wood
)
Appellant. ) FILED: July 8, 2014
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). Additional principles governing our review are
articulated below as relevant to the analysis.
2
Analysis
Section 452.423.2 states that the trial court shall appoint a GAL in any proceeding where
abuse or neglect is alleged. Mother cites three cases holding that appointment of a GAL is
mandatory when neglect is alleged. In White v. White, the mother’s pleadings alleged multiple
specific instances when the father was passed out with the child in his care, necessitating
intervention by emergency responders and other adults. 952 S.W.2d 320 (Mo. App. E.D. 1997).
Though not raised at trial or on appeal, this court sua sponte reversed the judgment and
remanded the case for appointment of a GAL. Id. at 321. In Taylor v. Taylor, although neither
party alleged abuse or neglect in their pleadings, the trial record revealed multiple specific
allegations of abuse compelling this court to reverse and remand for appointment of a GAL and a
new trial. 60 S.W.3d 652 (Mo. App. E.D. 2001). Finally, in Castandeda v. Castaneda, the
appellate court found sufficient specificity in the father’s allegation that the mother “was abusing
alcohol and drugs while the children are in her custody” and “had failed … to provide proper
supervision … and has neglected their care and welfare” so as to necessitate appointment of a
GAL and a new trial. 121 S.W.3d 324, 327 (Mo. App. W.D. 2003). Importantly, the Castaneda
court cautioned that, “while the allegations should be broadly construed, a minimum degree of
specificity is required.” Id. Applying the foregoing authorities to the present case, we are not
entirely persuaded that Father’s vague accusation was sufficiently specific to trigger mandatory
appointment under §452.423.2 even when Father filed his motion in January 2013.
Since that time, however, in May 2013, the Supreme Court of Missouri issued its opinion
in Soehlke v. Soehlke holding that, in order to compel remand for appointment of a GAL and a
new trial, an appellant must demonstrate not only that the trial court’s failure to appoint a GAL
was an abuse of discretion but also that the absence of a GAL was detrimental to the child’s best
3
interests. 398 S.W.3d 10, 18 (Mo. 2013). In Soehlke, the trial court expressly concluded that
neither party had alleged abuse or neglect in their pleadings, so a GAL was unnecessary, and the
parties agreed. It was only after an adverse ruling that the mother challenged the trial court’s
conclusion on appeal, arguing that the father’s inflammatory accusations were tantamount to
charges of abuse and emotional neglect. Although Mr. Soehlke’s pleadings did not contain one
of the statutory trigger words as Father employed here (i.e., neglect), the Soehlke opinion
informs us that this semantic distinction is immaterial, and we defer to the trial court to evaluate
the substance of the allegations.
There is no specific definition of “abuse” and “neglect” as those terms are used in
section 452.432.2. . . . Accordingly, the statute leaves the final construction of
these terms to the experience and judgment of Missouri's trial courts, in which
untold thousands of custody motions are reviewed annually. These courts need no
further guidance to be able to distinguish extraordinary allegations that involve
real acts of child abuse or neglect from ordinary allegations that—no matter how
vitriolic or ad hominem they may be—do not indicate that the child has suffered
such harm. Under section 452.432.2, the trial court must assess the parties'
allegations in the context of their case and in the light of the best interest of the
child. If a party challenges the court's conclusion as to whether the allegations
were sufficient to mandate the appointment of a guardian, that conclusion will be
reviewed only for an abuse of discretion.
Soehlke, 398 S.W.3d at 17-18. An abuse of discretion occurs when a trial court’s ruling is
clearly against the logic of the circumstances and is so unreasonable and arbitrary that it shocks
the sense of justice and indicates a lack of careful consideration. In re Marriage of Hendrix, 183
S.W.3d 582, 587 (Mo. 2006). Guided by these principles, we find no abuse of discretion in the
trial court’s failure to appoint sua sponte a GAL, whether based on Father’s pleadings or his
evidence at trial, neither of which contained any specific or extraordinary allegation.
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
4
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
Soehlke, 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
5
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). 1
Result
The trial court’s judgment is affirmed.
__________________________________
CLIFFORD H. AHRENS, Judge
Roy L. Richter, P.J., concurs.
Glenn A. Norton, J., concurs.
1
The present case is factually distinguishable from this court's recent decision in Copling v. Lin Gao, No.
ED99554, 2014 WL 1908824 (Mo. App. E.D. May 13, 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.
6