C.J.(S.)R. v. G.D.S., 13943
| Decision Date | 14 November 1985 |
| Docket Number | No. 13943,13943 |
| Citation | 701 S.W.2d 165 |
| Parties | C.J.(S.)R., Petitioner-Appellant, v. G.D.S. and L.S., Respondents. |
| Court | Missouri Court of Appeals |
Carr L. Woods, Garrett & Woods, Monett, for petitioner-appellant.
No appearance for respondents.
C.S.R. (mother) and G.D.S. (father) were married in Jasper County, Missouri. Two children were born of the marriage, a daughter in 1973, and a son born in 1975. The marriage of the parties was dissolved on June 25, 1979, in Barry County, Missouri, where G.D.S. was residing. The mother did not contest the action, and the father obtained judgment by default, including custody of the two children. The father remarried and is now living in Springdale, Arkansas. The mother remarried and lives in Graham, Texas.
On December 22, 1983, after being advised that the children were being abused while in the custody of their father, the mother filed a motion to modify the dissolution decree seeking custody of the children, and joined L.S., the paternal grandmother, as a party. The motion was filed in Barry County, where the children were living at that time with L.S. The mother's motion alleged the following change of circumstances since the dissolution of marriage:
1) She has remarried and is able to provide a suitable home environment for the children.
2) The father has denied visitation rights to the mother.
3) The children are not living with the father, but are living with their paternal grandmother.
4) The father has mentally and verbally abused the children which resulted in their removal from his home and placement in the home of their grandmother.
The record does not indicate that an answer denying these allegations was ever filed by either the father or grandmother. While the legal effect of such failure to answer is to admit the allegations, Rule 55.09, 1 such failure was waived by the mother's proceeding to a hearing on the merits without objecting to the fact that there was no denial of her allegations. Blaise v. Ratliff, 672 S.W.2d 683, 688 (Mo.App.1984).
A hearing was held on the motion on May 16, 1984. After hearing testimony, the trial court took the question of modifying custody of the children under advisement, pending receipt of a home study report on the mother's home in Texas. On August 28, 1984, the trial court, after considering the testimony and reports filed by the Texas Department of Human Resources and the Arkansas Department of Human Services, entered judgment granting the mother specific visitation during the summer months and during the Christmas holidays, but denied her request for custody, stating that no material facts had been shown which resulted in a change of circumstances justifying modification of the custody provisions of the dissolution decree. The net effect of this judgment was to leave custody of the children in the father.
The mother appeals, contending that the trial court's finding that no material facts had arisen since the date of the decree granting custody of the children to the father that constituted a substantial change of circumstances justifying modifying the custody provisions of the decree was not supported by substantial evidence, was against the greater weight of the evidence, and constituted an abuse of the trial court's discretion. The father has not favored us with a brief supporting the judgment of the trial court.
In our review, we are mindful that we should not set aside a trial court judgment on the ground that it is against the greater weight of the evidence unless we have a firm belief that the judgment is wrong. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We also give due regard to the opportunity of the trial court to judge the credibility of the witnesses. Rule 73.01(c)(2).
The evidence before the trial court was as follows. The third grade teacher (1982-83) of the little girl testified that in 1983, the child was "very thin and her eyes were just black circles--black circles around her eyes," she cried "at least three or four times a week," did not play with other children during recess but wanted to stay inside and talk with her, and had bruises and belt marks on the middle of her back and sores on her scalp. In September of 1983, at the beginning of the school term after summer vacation, the little girl had lost five pounds. During the two months she was with her paternal grandmother, she gained ten pounds. During that following school year (1983-84), the little girl still came to her at least once a week complaining of her home conditions.
The little girl's fourth grade teacher (1983-84) said the little girl "cried a lot," said her hands hurt (they were red), she had bruises on her body, and her "eyes were sunken in and kind of purple and she had kind of a haggard look." She also testified the child was very thin. Both teachers reported the suspected child abuse to the school authorities.
The school counselor counseled both children in 1982 and 1983. The children had bruises and belt marks on their bodies. On August 30, 1983, Scott had five bruises 1"' to 2"' long on his right leg between his hip and knee. The little girl sustained a five pound weight loss (down to 48 pounds for an eight-year-old child) during the summer vacation. The children complained of their home situation, and said they were not getting warmth and affection at home. The children also said they were forced to stand in one place (in their living room) for long periods of time, were locked in their bedrooms, and were sent to bed without supper as punishment. The little girl felt unloved because of her mistreatment at home.
The school principal referred the matter to SCAN in September of 1982, a contract agency for the Arkansas Department of Social Services. SCAN is an organization that provides counseling services to parents where abuse of a child under 12 years of age is suspected.
The director of SCAN in Washington County, Arkansas, after receiving the child abuse report from the children's school, interviewed the father and stepmother at the children's school on March 20, 1983. The father admitted 1) locking the children in their rooms at night, 2) making them stand in the middle of the room as punishment, and 3) making the children wash their soiled underwear in the toilet. The father and stepmother refused counseling and said they "didn't want anyone visiting in their home and telling them how to raise the children." The director then referred the case to the Arkansas Department of Social Services for protective services because of the refusal of the father and stepmother to cooperate with the agency. The principal of the school also urged the father to accept help from SCAN, but the father refused.
In September of 1983, a social worker from the Arkansas Department of Social Services received a complaint from the school. A worker was sent to the Smith home and took pictures. In her testimony, she reiterated the examples of child abuse heretofore mentioned, said that a dirty sock had been stuffed in the little girl's mouth to keep her from "whining" and that the pillows from the children's beds had been removed a year ago and not returned, after the children had engaged in a pillow fight. She also testified that the father refused counseling and that the stepmother would not talk to the social workers, supposedly on the advice of counsel. The little boy had begged food from the cafeteria workers. The children said they were not allowed to watch television, have any snacks, or see friends. They were allowed to change underwear every three days, and had to wash their soiled underwear in the toilet.
The children's mother testified that she had married C.R., a disabled veteran, after her marriage to G.S. was dissolved, and has a four-year-old son by her second marriage. She lives in a three bedroom, two bath home, which is suitable for the two children in question, and has ample funds to care for them. She admitted that she had only seen the children twice since the dissolution of marriage, and had not talked to them on the telephone. She explained this by saying the children's father would not let her visit the children or talk to them on the phone. She said he also told her that if she sent presents to the children, they would be thrown in the trash. Her present husband, C.R., testified he wanted the children and could support them.
The father, a service manager of an automobile shop, remarried in the spring of 1980. His present wife works from 6 a.m. to 2:30 p.m. outside the home. The home is adequate for the children's care. He said the mother had only tried to see the children...
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