              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
