dissenting.
I respectfully dissent. This was a court-tried case in which the trial court sustained the father’s motion to change custody of a three-year-old child. The majority reverse the trial court’s judgment for the reason that, in their opinion, there was no substantial evidence of changed circumstances to support the modification order. I do not agree with their conclusion.
It is not the function of an appellate court to review court-tried cases de novo. The scope of appellate review is clearly defined. We should not set aside a trial court judgment in a court-tried case as not supported by substantial evidence, or as against the weight of the evidence, unless we have a firm belief that the trial court was wrong, giving due regard to the trial court’s unique capacity to judge the candor and sincerity of witnesses, and with recognition of the fact that the trial court, sitting as a trier of fact, may believe or disbelieve all or part of the testimony of any witness. D. S. v. H. T. H., 600 S.W.2d 698, 700 (Mo.App.1980).
In this case, the motion to modify alleged certain changes in circumstances that had occurred since the date of the dissolution of the marriage that affected the welfare of the child, which were a) that while in the custody of the mother, the child had been beaten, abused, mistreated, and malnourished, and b) the conditions under which the child was forced to live while in the mother’s custody presented a danger to her life, health, and emotional well-being.
Evidence to support those allegations is as follows. There was substantial evidence before the trial court that when the father picked up his three-year-old child for the Thanksgiving visitation in 1978, the child was suffering from bruises and marks all over her body, that she was bruised on the trunk, back sides, and legs, that there was bruising and swelling on her lower back, and that there were scratches that broke the skin on the front and back part of her upper body that required medical attention. The child was weak, malnourished and could hardly stand. There was testimony, not objected to, that the wounds on the child’s body were inflicted by someone while the child was in the custody of the mother.
Other relevant evidence was that the child’s mother lived in a four-room, two bedroom house. In the home with the mother was an illegitimate child by a “service guy”, born out of wedlock before her marriage to Mitchell, and two children born of her marriage to Isaac Jones, who she married after the dissolution of her marriage to Mitchell. At the time of the custody hearing, she was again pregnant, presumably by Jones, even though she and Jones had been separated for seven months, and the baby was not due for four or five additional months. Jones did not support his children. The mother exists on A.D.C. and food stamps.
At the close of the evidence, the trial court observed, “Mrs. Jones already has three children living in a two-bedroom house and she is pregnant and going to have four and then she gets Samantha, she’s going to have five, where are they going to stay?” Where, indeed.
Home studies which were received into evidence with the approval of the mother’s attorney, show that living conditions in the mother’s home are less than desirable, and that the house contains several safety hazards, such as an exposed hot water heater. On the other hand, the father’s home is modern and well-kept. He has a stable second marriage of over three years’ dura*23tion, and his income is more than adequate. His second wife joins in his request for custody of the child.
This small child has resided with her father and step-mother in a place where she is happy, secure, and has been well cared for for over two years. By this time, she will have started to school in a stable environment. To uproot her from this and place her in an environment where instability is the rule, rather than the exception, is, in my opinion, the height of folly.
I believe that the trial court correctly assessed the problem and decided the issue, but it is not a question of whether I, or any member of this court, would have decided the case as the trial judge did. The question is whether there was substantial evidence to support the judgment of the trial court. In my opinion, there was.
For that reason, I dissent.