B. W. v. F. E. W., 38383
| Decision Date | 10 January 1978 |
| Docket Number | No. 38383,38383 |
| Citation | 562 S.W.2d 137 |
| Parties | B. W., Petitioner-Respondent, v. F. E. W., Respondent-Appellant. . Louis District, Division Four |
| Court | Missouri Court of Appeals |
John D. Connaghan, St. Louis, for respondent-appellant.
Milton Schaeffer, Clayton, for petitioneer-respondent.
This is an appeal by the husband, respondent in the trial court, from a decree entered June 30, 1976 by the Circuit Court of St. Louis County which, among other rulings, dissolved the marriage of the parties, awarded custody of three minor children to the wife and divided the marital property. The husband contends that the trial court erred in: (1) failing to make a finding that the marriage was irretrievably broken; (2) failing to set off to the wife her equity in real property owned by the parties and failing to dispose of an encumbrance on the real property; (3) failing to make any custody or child support award in the case of D. R. W., a child born during the marriage; and (4) awarding custody of the minor children to the wife without a more extensive hearing on the custody issue.
The parties were married in January of 1970. The wife had three children at the time of the marriage. The children were subsequently adopted by the husband. The parties separated in July of 1974, and the wife's petition for dissolution was filed on August 20, 1974. In September of 1974, before the divorce was granted, the wife became pregnant and in due time gave birth to a daughter, D. R. W. The wife's testimony was that a man not her husband was the father.
We review this case upon both the law and evidence giving due regard to the opportunity of the trial court to judge the credibility of the witnesses. Rule 73.01(3). This has been construed to mean that the decree of the trial court "will be sustained * * * unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law." Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976).
The trial court in its decree failed to find that the marriage was irretrievably broken, the decree stating only "Decree of Dissolution granted." Section 452.320, RSMo Supp.1975 imposes a statutory duty on the court to "make a finding whether or not the marriage is irretrievably broken." Paragraph 1 of § 452.320 requires this finding to be made even though both parties state under oath that the marriage is irretrievably broken or when one party so states and the other party does not deny it. Paragraph 2 of § 452.320 sets forth the procedures which must be followed if one of the parties denies under oath or affirmation that the marriage is irretrievably broken and specifies the facts which must be proved in order to find irretrievable breakdown after denial by one of the parties. Although the husband in his answer denied that the marriage was irretrievably broken, his testimony under oath at the trial could have been construed by the trial court as refuting or overcoming the denial of irretrievable breakdown in the answer. We defer to the trial court's opportunity to judge the credibility and demeanor of the witness when he testified on this point and hold that under all the evidence the husband did not finally deny that the marriage was irretrievably broken. Nonetheless, the husband's contention that the court erred in failing to make a specific finding that the marriage was irretrievably broken is correct and the cause must be remanded for this reason.
An even stronger reason for remand is the failure of the court to make any order relating to the fourth child, D. R. W., born during the marriage. Two issues arise relating to this fourth child. Is she legitimate and if so, must the court make an award of custody? Her existence was not disclosed in the pleadings nor in the testimony at the trial but only in the deposition of the wife which was received in evidence and became a part of the trial record. The child was...
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