In re the Marriage of Byler, 544 S.W.2d 284

544 S.W.2d 284 | Mo. Ct. App. | 1976

PER CURIAM.

This is an appeal taken by the husband from a decree entered in a dissolution of marriage proceeding. It is confined to two of the decretal provisions: (1) that awarding the wife custody of the two year old female child born of the marriage; and (2) that awarding attorney fees to the wife. As to the first, the husband contends that the wife was guilty of certain indiscretions which made her unfit to have custody of the child. As to the latter, the husband contends the wife was financially able to pay her own attorney fees.

The paramount concern when determining child custody is the welfare and best interest of the child. Section 452.375, RSMo Supp.1973; In Interest of B. B., 537 S.W.2d 682, 684 (Mo.App.1976); In re Marriage of Powers, 527 S.W.2d 949, 952 (Mo.App.1975). A trial court’s order fixing custody should not be disturbed on appeal unless the welfare and best interest of the child compel a différent disposition. In re Marriage of Powers, supra. When called upon to review child custody orders, appellate courts should vigilantly heed the fact that the trial court is “in a better position not only to judge the credibility of the witnesses and the persons directly but also their sincerity and character and other trial intangibles which may not be completely revealed by the record.” E_ (S_) v. E_, 507 S.W.2d 681, 684 (Mo.App.1974). Appellate courts therefore should cautiously refrain from substituting their judgment for that of the trial court in child custody matters, and do so only when the trial court’s order fixing custody lacks substantial evidence to support it, or is against the weight of the evidence, or erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976); and B_ A_ S_ v. G_ R_ S_, Mo.App., 541 S.W.2d 762, handed down September 21, 1976, by the Missouri Court of Appeals, St. Louis District. When the aforesaid legal precepts are superimposed on the record before this court, it cannot be said that the trial court erred in awarding the wife custody of the two year old female child.

Section 452.355, RSMo Supp.1973, vests a trial court with broad discretion in awarding attorney fees in a dissolution of marriage proceeding. Larison v. Larison, 524 S.W.2d 159, 161 (Mo.App.1975). Under the applicable statute, Section 452.355, supra, the need of a party is but one factor to consider in awarding attorney fees. When the record before this court is read in light of these legal templates, it cannot be said that the trial court erred in awarding attorney fees to the wife.

Judgment affirmed pursuant to Rule 84.-16(b).

All concur.