In Re Marriage of Campbell
This appeal is from that portion of a dissolution of marriage decree which awarded primary custody of two minor children to the husband. Becky L. Campbell (Wife) and Herbert C. Campbell (Husband) were married in December 1981. At that time, Wife had a son (Joseph) from a prior marriage who was later adopted by Husband. Two children were bom of this marriage: Brandi, *150 bom January 31, 1984, and Candice, born August 27, 1990. The parties separated as husband and wife in June 1991, at which time Wife filed a petition for dissolution of marriage. At the time of trial, Joseph was seventeen years old, Brandi was eight, and Candice was one year, eleven months.
Pursuant to a mutual request by the parties, the trial court appointed an attorney as guardian ad litem of the minor children (hereafter referred to as Guardian). The Guardian filed a request for production of documents and information from both parties and interviewed Husband as well as Brandi prior to trial. He participated at trial by cross-examining witnesses and voicing his position on objections to evidence. Pursuant to the request of the trial court, he also submitted a proposed joint custody plan and a letter containing recommendations concerning custody.
The trial court awarded custody of Joseph to Wife with visitation privileges in Husband. No appeal is taken from that portion of the decree. Joint legal custody of Brandi and Candice was awarded to the parties but primary physical custody was awarded to Husband with visitation privileges in Wife. Wife appeals from that portion of the decree.
Wife raises two issues which may be summarized as follows: (1) the trial court erred in awarding primary physical custody of Brandi and Candice to Husband because there was no evidence in the record that the Guardian fulfilled his duty in representing the children; and (2) the award of primary physical custody of the two children to Husband was against the weight of the evidence, an abuse of discretion, and contrary to the children’s best interests. For the reasons specified, we affirm the judgment of the trial court.
STANDARD OF REVIEW
The standard of review in court-tried eases announced in
Murphy v. Carron,
It is important to remember that the trial eourt has considerable discretion in making custody orders, and an appellate court should not disturb such orders unless it is firmly convinced that they are manifestly erroneous and the welfare of the children requires some other disposition.
Burden v. Burden,
WIFE’S FIRST POINT
In her first point, Wife argues that awarding primary custody of Brandi and Candice to Husband was error because the trial court relied on the recommendations 2 of the Guardian without evidence in the record that the Guardian’s duty to the children was fulfilled. In particular, she argues that the Guardian’s failure to meet with Candice (who *151 at the time was one year, eleven months old) and to make a record of his meeting with Brandi and Husband constituted a gross neglect of duty requiring reversal.
Wife acknowledges that there was evidence which would support the award of primary custody to either her or Husband, but argues that she was prejudiced by the Guardian’s alleged failures because a proper investigation could have revealed facts which could have changed the recommendations made to the trial court; and a complete record of the Guardian’s findings and recommendations would have provided a basis for appellate review. She does not specify, however, what other facts could have been learned and does not contend, in her argument under this point, that the award of primary physical custody to Husband was contrary to the best interests of the children.
Point I must be denied for several reasons. First, Wife failed to preserve the issue for appellate review by not raising it in the trial court. 3 She made no objection concerning the appointment of the Guardian, his investigation, his participation or performance at trial, or the adequacy or effectiveness of his representation of the children’s interests. Upon completion of the trial on July 20,1992, the trial court asked the Guardian to submit a proposed joint custody plan, together with his recommendations concerning custody, by July 27. The trial court also requested, and counsel for both parties agreed, that any desired responses would be filed by July 29. The Guardian filed his recommendations and proposed custody plan on July 23 and Husband requested some modifications on July 28. Wife, however, made no objection or response. In short, Wife raised no issue in the trial court concerning the matters about which she now complains. 4 With commendable diligence, the trial court entered its decree on July 29.
A party is not entitled to have issues considered on appeal which were never presented to or passed on by the trial court.
Ibarra v. Missouri Poster & Sign Co.,
Wife argues that the absence of a record of the Guardian’s interview with Brandi requires reversal. She acknowledges that there are no statutory requirements that a guardian ad litem interview the children in all cases.
5
She relies, however, on
Cassinger v. Cassinger,
First, any consideration given by the trial court to the child’s unrecorded testimony would be improper as not being supported by the record. Second, the failure to preserve the child’s testimony precludes meaningful review with respect to what extent, if any, the trial court relied upon the child’s testimony in determining [custody],
We believe the instant case is distinguishable from the Cassinger case and the rationale supporting it as announced in Williams. In the instant case, it was the Guardian, not the court, who conducted an interview with Brandi. It was the court, not the guardian ad litem, who was charged with the responsibility of making custody decisions. There is no evidence in this case that the trial court abrogated its responsibility or delegated it to the Guardian. Likewise, there is no indication that the trial court had before it any evidence which was outside the record. As admitted by Wife in her brief, the Guardian’s letter of recommendations to the trial court contained nothing which was outside the evidence introduced at trial.
Wife also argues that the Guardian had a duty to, but did not, investigate and advocate vigorously in behalf of the children. She cites
Hemphill v. Hemphill,
In the instant case, the Guardian conducted discovery, interviewed the older child, actively participated in the trial, and offered recommendations to the trial court. This was in keeping with the Guardian’s responsibility as described in
In Interest of J.L.H.,
The trial court had authority, pursuant to § 452.423.3, RSMo Cum.Supp.1988, to discharge the Guardian for failure to faithfully perform his duties, but Wife did not make that request. Our review of the record does not lead us to conclude that the Guardian’s performance was a matter of plain error resulting in a manifest injustice or miscarriage of justice.
In denying this point, we also note that Wife alleges prejudice to her as a result of the conduct of the Guardian but does not argue that the Guardian’s performance adversely affected the best interests of the children so as to require a different decision. As noted in
Van Pelt v. Van Pelt,
Wife’s first point is, therefore, denied.
WIFE’S SECOND POINT
In her second point, Wife urges that the trial court erred in awarding primary physical custody of Brandi and Candice to Husband because it was against the weight of the evidence, an abuse of discretion, and not in the children’s best interests. She argues that the evidence, some of which was not in the record, 7 showed she was the ap *153 propriate party to have primary physical custody.
Wife acknowledges the heavy burden she carries in attempting to overturn a child custody order on the basis that it is against the weight of the evidence. An appellate court should exercise the power to set aside a decree or judgment on that basis with caution and with a firm belief that the decree or judgment is wrong.
Murphy v. Carron,
The evidence indicated that both Wife and Husband were employed. Wife worked as a drill press operator during the day. Husband did not have full-time outside employment, but was a substitute mail carrier awaiting full-time employment upon the retirement of another carrier. He also worked on the family farm.
Husband had actively participated in caring for both of the children. For several months prior to trial, he had been the principal custodian of Brandi, who stayed with him during the week and with Wife on Saturdays. On days when he was not working as a mail carrier, he also kept Candice from early morning until late afternoon or evening. On days when he was working, Candice stayed with a baby-sitter.
Wife admitted that Husband took good care of the girls, they were always clean and neatly dressed, and they appeared to be in good health. She also believed that Husband loved his daughters and had been a “good father” to them. Other witnesses confirmed Husband’s good relationship with his daughters.
Wife argues that Husband had an altercation with her son, Joseph, and had on one occasion been fired from a job for fighting. She points to this as showing a propensity for violence which would adversely affect the children. Neither of these incidents, however, involved the two children who are the subject of this appeal, and no allegations were made of such behavior while he was in the presence of either of them. In
Gilman v. Gilman,
There was also evidence that Wife was a good mother, kept the children clean and well groomed, and was an attentive and loving parent. Other evidence, however, indicated that prior to the separation, Wife went out frequently at nights, leaving the children with Husband and sometimes not returning until 3:00 to 5:00 a.m. After the separation, there were occasions when Wife would pick up her daughters from Husband after she had been drinking. This finally resulted in his refusal to let her take the children when she had consumed intoxicants. There was also evidence that Wife took Candice with her in a vehicle when both she and the driver were drinking.
Evidence was introduced from which the trial court could have believed that Wife had sexual relationships with other men, both before and after the separation. In her brief, Wife contends that her “personal life should not have been an issue since it was shown not to be in any way detrimental to the children” and “[t]he Trial Court should not be a judge of the Appellant’s personal life but should have found that the conduct was not detrimental to the children’s welfare.” The trial court is charged, however, with the responsibility of making custody decisions which are consistent with the best interests of the children. In doing so, the trial court may consider the conduct of a parent which may inspire by example.
R. v. R.,
... [A]dverse consideration of past or present inappropriate conduct of a parent is not limited to conduct that has in fact detrimentally affected the children. Such conduct is of importance, perhaps decisive, “when it is reasonably predictable that the moral environment will adversely affect the child.” ... Past and present conduct may be a reliable guide to the priorities of a parent.
Id.
Morals are a pertinent factor to be considered in determining the best interests
*154
of the children in custody proceedings.
Hartig v. Hartig,
Marital discord is rarely without some bilateral fault, however. Unfortunately, the trial court, as an outsider to that relationship, is called upon to make custody decisions concerning children who are innocent participants in the trauma existing in that family. In doing so, the trial court must be vested with broad discretion.
See In re Marriage of Mihalovich,
We note that in the argument portion of her brief, Wife suggests that the trial court abrogated its judicial responsibility in favor of the Guardian’s recommendations. She suggests that, in the instant case, the trial court delegated its responsibilities to the Guardian and merely accepted the Guardian’s recommendations without a sufficient basis in the record. She concludes by arguing that there is no statutory authorization for the guardian ad litem to make recommendations concerning custody decisions. To the contrary, however, the court in
In Interest of J.L.H.,
The judgment is affirmed.
Notes
. All references to rules are to Missouri Rules of Court, V.A.M.R., and all references to statutes are to RSMo 1986, V.A.M.S., unless otherwise noted.
. The Guardian recommended that primary physical custody be awarded to Husband and suggested specific visitation privileges. The trial court awarded primary physical custody to Husband but modified the provisions concerning specific visitation from that recommended.
. Wife's attorney on this appeal did not represent her in the trial court.
. Section 452.375.7, RSMo Cum.Supp.1988, permits either of the parties to suggest a plan concerning joint custody.
. Section 452.423, RSMo Cum.Supp.1988, which authorizes the appointment of a guardian ad litem in contested custody cases, provides that "[i]f appropriate, the child should be interviewed.”
. Section 452.385 provides:
The court may interview the child in chambers to ascertain the child's wishes as to his custodian and relevant matters within his knowledge. The court shall permit counsel to be present at the interview and to participate therein. The court shah cause a record of the interview to be made and to be made part of the record in the case.
. Wife does not state what evidence was outside the record, but we presume she refers to the details of the Guardian’s interview of Brandi and Husband.