Bashore v. Bashore, WD

• Decision Date: 29 January 1985
• Docket Number: No. WD,WD
• Citation: 685 S.W.2d 579
• Parties: Rhonda Nell BASHORE, Petitioner/Appellant, v. Otis Frederick BASHORE, Respondent/Respondent. 35804.
• Court: Missouri Court of Appeals

Page 579

685 S.W.2d 579

Rhonda Nell BASHORE, Petitioner/Appellant, v. Otis Frederick BASHORE, Respondent/Respondent.

No. WD 35804.

Missouri Court of Appeals,

Western District.

Jan. 29, 1985.

Eugene G. Bushmann, Bushmann, Neff, Gallaher & Brown, Jefferson City, for appellant.

Susan Goering, Benson & McKay, Kansas City, for respondent.

Before CLARK, P.J., and SOMERVILLE and KENNEDY, JJ.

CLARK, Presiding Judge.

In this dissolution of marriage case, the wife appeals the orders of the trial court which awarded shared custody of the children and which determined that the family residence was the separate, non-marital property of the husband. The judgment is reversed and the cause is remanded for further proceedings.

The first issue raised in the appeal is the propriety and validity of the trial court's order regarding custody of the two children born of the marriage. The children are a son born in 1978 and a daughter born in 1981. As announced from the bench, the court made the following permanent custody disposition:

"With regard to custody of the children. There was no evidence presented that either party could not adequately take care of these children and puts the Court in a position of trying to choose when the only evidence I have is that both of you are equally capable of taking care of the children. Due to the fact that the evidence was you've been alternating the children on a weekly basis, although I can't do joint custody since that has to be by agreement, I have done what I consider the next best thing in these circumstances; and that is that I'm going to alternate custody during the times that you have the children with you. Custody of the children named in the petition are awarded to petitioner every other week. Custody to the respondent, the alternate weeks when he has the children." (Emphasis added.)

Appellant contends in her first point on appeal that the divided custody order shifting the residence of the children from the home of one parent to the other every week is a judgment finding no support in the evidence and constituting a misapplication of the law.

At the time this case was tried and the judgment was entered, § 452.375, RSMo.Supp.1983 governed. ¹ Under the statute, the trial court is empowered in a dissolution of marriage action to award joint custody of the children, sole custody to either parent or, if each is unfit, to a third party. The initial infirmity in the subject judgment is that it does not conform to any of the custody alternatives which the statute authorizes.

The comments by the trial court indicate the judgment in this case was not intended to be an award of joint custody. This follows from the court's observation, mistakenly conceived, that joint custody may only be ordered on agreement to that arrangement by the parties. Neither appellant nor respondent contends here that the alternating weekly custody change constitutes any concurrent participation by them in caring for the children nor was joint custody an option sought by either party in their pleadings or presentation to the trial court. Appellant's petition sought custody to be placed in her, respondent's cross-petition asked that sole custody be given to him and at trial, each of the parties reiterated the same claims. The divided custody arrangement decreed was a solution entirely devised by the court to meet the dilemma not alone found in this case, where the evidence does not strongly tip the scales in favor of either parent as custodian.

Under the statute, the court is obligated to provide for custody of minor children as a part of the dissolution of marriage decree. If joint custody is not awarded, the only alternatives remaining are placement of sole custody in either parent or in a third party. Here, the trial court disavowed the prospect of joint custody for want of agreement by the parties, but it failed to grant sole custody to either parent, or to a third party, the only remaining options under the statute. The decree giving appellant and respondent custody on alternate weeks therefore errs as a misapplication of the law.

Respondent in his brief here seeks to support the judgment as providing for "split custody" and cites as an example of previous decrees to this effect which have been approved, Gillespie v. Gillespie, 590 S.W.2d 420 (Mo.App.1979). The Gillespie case, and others cited, are of no aid in salvaging the decree here because in each, there was a sole award of custody with liberal, specified periods of temporary custody for purposes of visitation. No case cited by respondent or discovered by independent research has approved a custody decree which grants neither joint nor sole custody.

A further defect in the custody award in this case is an absence of any apparent consideration by the trial court of the best interests of the children or of any evidence to support the disposition ordered. It is axiomatic to say that custody is not to be a reward or punishment of either parent, but is to be based on the ultimate and sole test of what will be in the best interests of the children. Knoblauch v. Jones, 613 S.W.2d 161, 165 (Mo.App.1981). Generally speaking, except for good reason, a minor child should not be shifted periodically from one home to another. It is unwise to transfer custody frequently and not at all unless it is demonstrated by a preponderance of the evidence that the continued well-being of the children requires the change. Leimer v. Leimer, 670 S.W.2d 571, 574 (Mo.App.1984).

Appellant contends that the weekly custody shuttle was not shown by any evidence here to be in the best interests of the children but, instead, is detrimental to their welfare. The failure by the trial court to mention in its findings how the custody as ordered served the children's interests leaves the order inherently vulnerable and suspect because of its terms. Those provisions leave the children as weekly transients having no permanent home at the residence of either parent. The consequences are predictably to be confusion and instability. It would be an exceptional case in which deference to the trial court's discretion would warrant affirmance of an alternating weekly custody disposition and then, only on a record in which evidence showed that disposition to be in the best interests of the child. Here, absent any evidence supporting the decree, deference is not to be accorded.

Because of the necessity to remand this case for a rehearing and the prospect that joint custody may be an alternative considered by the trial court, some observations as to that option under the evidence adduced to this point is appropriate. The following facts appear in the record and constitute circumstances unlikely to change when the case is again heard.

The parties were married in 1975 and, after a previous separation, the wife finally left the family home in June, 1982. She took the children who...