Welch v. WelchWelch v. Welch
The marriage of the parties was dissolved on September 25,1991, and primary physical custody of parties’ child, Ashley, was awarded to Appellant. On February 3, 1994, the dissolution decree was modified, granting primary physical custody to Respondent. Thereafter, on July 9, 1997, Appellant filed a motion to modify, requesting primary custody of Ashley. Following trial of the matter, Appellant’s motion was denied, and she appeals.
Appellant contends that the trial court erred and that its ruling was not based upon substantial evidence since the trial court was prejudiced because “the court stated on the record it had prejudged the case, resulting in an abuse of discretion.” For her second point, Appellant claims the trial court erred because the court relied on a single factor, the child’s grades in school.
The standard of review in court-tried cases is governed by Rule 73.01(c). For interpretation of that rule, see In re Mar
An appellant seeking to reverse a trial court’s ruling concerning custody of a child has to overcome a high standard of review. A trial court has considerable discretion in making child custody orders. In re Marriage of Campbell,
Under § 452.410.1, RSMo 1994, the court is not to change the custody of a child unless “a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interest of the child.” The party seeking to change custody has the burden of proving such a change and that the modification is in the best interest of the child. Bomar v. Kurtz,
Performance at school while living with the custodial parent is a factor which may be considered when requesting a change of child custody. Wilmesherr v. Wilmesherr,
In support of her first point that the trial court pre-judged the case, Appellant cites Kollmeyer v. Stupp Bros. Bridge & Iron Co.,
Previously, the court had heard evidence consisting of seventy-two pages in the transcript on behalf of the Appellant, and fifty-five pages of the transcript by Respondent. Thereafter, the court heard additional evidence presented by Respondent, consisting of twenty-one pages.
Earlier, at the conclusion of Appellant’s evidence, Respondent moved to dismiss, contending that there was not a sufficient change of circumstances shown. The trial court denied the motion, stating he thought it was “a very close question.” Without deciding, we agree that it was a close question.
At the time of the motion to dismiss, the trial court was not limited to determining if there was a prima facie case, such as would take place in a jury trial. The trial court could determine that the moving party had failed to convince the judge of a right to relief, and enter judgment adverse to Appellant. Wyrozynski v. Nichols,
The trial court did not grant the motion, but it could have, and it appears that having heard additional and apparently undisputed testimony as to the child’s progress in school, the court concluded that a sufficient showing of change of circumstances had not occurred. The court, however, did not so rule until the parties were
The court’s comments above quoted and the judgment entered indicate that other proper factors were considered, not just the child’s schoolwork. Therefore, Point II has no merit.
The judgment is affirmed.
Notes
. Rule 73.01(a)(2) provides in part that: “After the plaintiff has completed presentation of plaintiff’s evidence, the defendant may move by motion for a judgment on the grounds that upon the facts and the law the plaintiff was not entitled to relief.”