Asbell v. Asbell

• Decision Date: 10 July 1968
• Docket Number: No. 8760,8760
• Citation: 430 S.W.2d 436
• Parties: Martha Faye ASBELL, Plaintiff-Appellant, v. Garland Wayne ASBELL, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 436

430 S.W.2d 436

Martha Faye ASBELL, Plaintiff-Appellant, v. Garland Wayne ASBELL, Defendant-Respondent.

No. 8760.

Springfield Court of Appeals, Missouri.

July 10, 1968.

Myers, Webster & Perry, Webb City, for plaintiff-appellant.

Frieze & Crandall, Carthage, for defendant-respondent.

TITUS, Judge.

The Circuit Court of Jasper County on March 3, 1966, granted plaintiff a divorce, awarded her the custody of the two minor children born of the marriage, and gave defendant the right to visit the children at all reasonable times. Defendant filed a motion August 30, 1966, to modify the decree, and after a hearing held August 8, 1967, the original judgment was altered to permit the children 'to visit with their father, in his home the 1st and 3rd weekends of each and every month from 6:00 p.m. on Friday until 6:00 p.m. on Sunday.' Plaintiff has appealed, claiming the trial court erred because 'there were no changes in condition affecting the welfare of minor children, which would justify such a decree.'

When the divorce was granted defendant was on furlough, having just returned from a tour of duty in Korea with the United States Army. He thereafter continued in service at Ft. Bliss, Texas, until honorably discharged August 18, 1966, at which time he established his residence with his mother and father in a three bedroom home 'in the country' near Golden City. Plaintiff and the children live with her mother and 26-year-old unmarried brother in an eight room house in Carthage. Following the divorce the parties and their counsel had an understanding (exact terms unknown to us) regarding the times and manner defendant would exercise his right to visit the children. The record is not too clear, but apparently after defendant was discharged and because plaintiff was employed during the week, defendant's association with the children was restricted or mostly restricted to Sunday afternoons in the home of his mother-in-law, provided plaintiff was present and had been given a two hour notice by defendant of his intention to see the children. Posterity will not profit and present generations need not be disconcerted with a detailed recasting by us of the evidence in this case. Suffice it to say defendant's proof went to show that he is now able to have custody of the children in his home at specified times (something he could not do while in the army), and that the reservations placed upon his existing visits and the bickering arguments associated therewith make his relationship with the children in plaintiff's home strained, difficult and unsatisfactory. To the contrary, plaintiff's evidence was the visits were unfettered and it was not proper that defendant, because of his alleged gross temper and abusive character, should ever have possession of the children away from the protective custody of their mother.

Plaintiff reminds us the moving party has the burden of proof in these matters (Prudot v. Stevens, Mo.App., 266 S.W.2d 756, 758(4)), that the object of a motion to modify is not to inquire if the previous judgment is being given proper effect, but to determine if substantial rights of the parties predicated on new facts arising since the last decree require alteration or modification (Samland v. Samland, Mo.App., 277 S.W.2d 880, 881(2--4)), and if custody of children is involved, modification is not justified simply upon a showing of a change in circumstances unless the proof illustrates the changed conditions affect the welfare of the children to a material or substantial extent and that modification will be beneficial to them. Hurley v. Hurley, Mo.App., 284 S.W.2d 72, 73--74(3); Lehr v. Lehr, Mo.App., 264 S.W.2d 35, 36--37(3). We are also aware of the maze of seemingly inconsistent stilted platitudes and judicial pronouncements in child custody cases which may as easily lead to one conclusion as its opposite, depending on the selection made. See cases collected in 11 West's Missouri Digest, Divorce, k298--299. Though the puzzling perplexities of custody should never be resolved through peroration of pedantic principles (Chilcutt v Baker, Mo.App., 384 S.W.2d 854, 861(11)), the unbending precept in such causes is to determine, insofar as is humanly possible, what will best serve and promote the children's welfare. J_ _ G_ _ W_ _ v. J_ _ L_ _ S_ _, Mo.App., 414 S.W.2d 352, 360(5).

No one may doubt the transition from military status to civilian life was a change of condition for defendant. Nonetheless, plaintiff denies this was also a change of condition for the children. We, and apparently the trial court, disagree. Defendant's duties with the army at the time of the divorce would not permit him to have custody of the children at any stated times or to visit with them except while on furlough. The change in defendant's situation which now enables him to devote regular and specific time to his children and give them paternal guidance, training and affection, is also a change of condition for the children. Swan v. Swan, Mo.App., 262 S.W.2d 312, 315(3). Courts should encourage the continued interest and affection of divorced persons for their children and afford the children ample opportunity to have contact with both parents....