Armstrong v. Armstrong, 64384

• Decision Date: 19 April 1994
• Docket Number: No. 64384,64384
• Citation: 877 S.W.2d 127
• Parties: Tammy Lynn ARMSTRONG, Respondent, v. Steven Gale ARMSTRONG, Appellant.
• Court: Missouri Court of Appeals

Page 127

877 S.W.2d 127

Tammy Lynn ARMSTRONG, Respondent, v. Steven Gale ARMSTRONG, Appellant.

No. 64384.

Missouri Court of Appeals,

Eastern District,

Division One.

April 19, 1994.

Motion for Rehearing and/or Transfer to Supreme Court Denied June 6, 1994.

Seth D. Shumaker, Lancaster, for appellant.

George L. Gundy, Memphis, for respondent.

CRIST, Judge.

Steven Armstrong (Father) appeals from decision of the trial court to grant the motion to modify child custody filed by Tammy Armstrong n/k/a Tammy Burchett (Mother). The decision removed physical custody of their two minor children from Father and placed it with Mother. We affirm.

Mother and Father were married on September 19, 1981. Two children, A.A. and C.A., were born of the marriage. A.A. was born June 24, 1983. C.A. was born April 13, 1985. The marriage of Mother and Father was dissolved on December 3, 1986. At that time, Mother agreed Father should be granted custody of the two children. The decree of dissolution granted Father custody subject to reasonable visitation by Mother at reasonable times and places. The decree specifically provided visitation to Mother on alternate weekends, for six weeks in the summer in two separate three week periods, one week during Christmas vacation, Christmas Day each year from 9 a.m. to 4 p.m., Halloween eve, Easter, Fourth of July, Mother's Day, and Thanksgiving Day either from 9 a.m. to 2 p.m. or from 2 p.m. to 8 p.m. (alternating years). Mother was ordered to pay child support of $20 per child each month.

On January 4, 1993, Father filed a motion to modify the decree of dissolution. In that motion, Father requested the court allow him to remove the minor children from Missouri to Wisconsin and further requested a decrease in Mother's visitation. On January 15, 1993, Mother filed a counter motion to modify, alleging a change in circumstances warranting a transfer of custody of the minor children to her for their best interests. On April 13, 1993, Father amended his motion to modify, stating he no longer required permission to take the children to Wisconsin. However, he requested an increase in child support.

The motions to modify were heard on June 21, 1993. On July 15, 1993, the motion court filed its findings and conclusions and ordered Mother and Father share joint legal custody of the children but transferred primary physical custody to Mother. The court further ordered Father to pay Mother $391 per month for child support and provide health insurance for the children. Father appeals.

In Father's three points of appeal, Father challenges the court's decision to transfer physical custody of the two minor children to Mother. In Points I and II, Father contends the court erred in failing to find "substantial and continuing changes" with him or the children and the court's order is not in the best interests of the children. In Point III, Father argues the transfer of custody to Mother is against the weight of the evidence.

The evidence presented at trial, viewed in the light most favorable to Mother, revealed the following: At the time of Mother and Father's dissolution of marriage in 1986, Mother believed she was unable to care for the two children, either emotionally or financially. She testified her condition "wasn't very good; I was very upset" and the dissolution was "really hard on me." She did not seek custody of the two children and agreed it was best they remain with Father. In so agreeing, Mother relied upon Father's assertions he would share the children with her a great deal and would allow liberal visitation.

For the next several years, Mother lived an unstable life. However, in 1991, Mother married her current husband, Shawn Burchett. Burchett had a stabilizing effect on her. He is a high school teacher and attends church regularly. Mother began to attend church regularly. At the time of trial, Mother and Burchett lived in Cantril, Iowa, in a four-bedroom house, which they were buying. Mother currently works at Lebanon Cafe as a waitress. She works Monday through Friday, 6:30 a.m. to 3:00 p.m. and alternate Sundays. However, she testified if she had custody of the children, she could work fewer hours and always be at home when they were at home.

Father also remarried. In 1987, Father married Ronda Armstrong. Ronda has a son from a prior marriage and Father and Ronda have one child together. Since Father's remarriage, Ronda has become the primary caregiver for A.A. and C.A. In October 1992, Father changed jobs and is now employed as a truck driver for Wal-Mart. The new position is headquartered in Mt. Pleasant, Iowa. The job requires Father to leave the home on Sunday night or early Monday morning and remain gone from the home until Friday night or early Saturday morning. Father stated he tries to come home for one or two nights during the week on occasion. While Father is gone during the week, the children remain in Ronda's custody and care. The children call Ronda "Mom" and they call Mother "Tammy Mom." The court specifically found Ronda's assertions she did not encourage this to be incredulous.

At trial, Father admitted into evidence a "diary" of alleged abuses of the children by Mother. The diary was begun after Father married Ronda. All the entries are in Ronda's handwriting. The entries relate solely to extremely minor incidents, such as the children being dirty upon return from Mother's visitation. Any allegations were unsubstantiated. The only serious incident noted was when Mother allegedly gave C.A. adult-strength Sudafed. However, the evidence clearly revealed Mother gave C.A. only one tablet, the recommended dosage for a child over six years old. In addition, Ronda and Father have made a "hotline" call about Mother's alleged abuse of the children, which the Division of Family Services found to be unsubstantiated.

Mother testified she is never able to confer with Father about their children. Father leaves the decision-making about the children to Ronda. Mother is forced to make visitation arrangements with the children through Ronda. In the past, Ronda and Father have been difficult about Mother's dates for summer visitation. Furthermore, Ronda and Father have completely failed to keep Mother informed about the children's progress at school. Mother has never been informed of parent-teacher conferences at the school. The kindergarten teacher of both A.A. and C.A. testified she dealt primarily with Ronda. C.A.'s first grade teacher testified only Ronda came to the parent-teacher conferences. Father and Ronda have failed to provide Mother with copies of the children's report cards. Mother has obtained some of those cards from the school.

Mother also alleged Ronda had verbally and physically abused the children. She testified the children had told her she had slapped C.A. on the mouth and spanked him with a belt. Ronda admitted she had slapped C.A. on the mouth for saying abusive language.

At the trial, A.A. told the judge in chambers she wanted to live with Mother. A.A. was unable to testify further. C.A. stated he could live with either Mother or Father. C.A. also stated that most of the time he only sees Father every other weekend.

The court found changed circumstances justifying a transfer of physical custody to Mother. Contrary to Father's assertions, the court clearly cited the changed circumstances. Generally, the court relied upon: (1) Father and Ronda's interference with Mother's visitation was detrimental to the welfare of the children; (2) Mother's circumstances have improved substantially since the dissolution; (3) Father is no longer acting as the primary caregiver of the children and is gone from the home for most of the week; and (4) the ages, lifestyles, and social behavior of the children have changed. The court further noted Father had delegated the care of the children to Ronda and could articulate few episodes of activities he shared with them. In contrast, Mother was available at home to care for the children.

The court also relied upon the stated wishes of A.A., who told the judge in chambers she wished to live with Mother. In addition, Father had failed to assure the children would have meaningful contact with Mother. Indeed, he had sought further estrangement by requesting a reduction of visitation for Mother. Finally, the court found the present custody provision unsatisfactory because it prevented both parents from spending meaningful time with the children, and a new order was needed to provide for their best interests.

We review the decision of the trial court only to determine if it is based on substantial evidence, is not against the weight of the evidence, and is not based on any erroneous declaration or misapplication of the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Lisec v. Coy, 793 S.W.2d 173, 175 (Mo.App.1990). However, in matters of child custody, the appellate court gives greater deference to the trial court, recognizing its better position to judge the credibility of the witnesses. Shoemaker v. Shoemaker, 812 S.W.2d 250, 254 (Mo.App.1991).

A court may modify a prior custody decree only if:

it finds, upon the basis of facts that have arisen since the prior decree or that were...