E. C. S. v. J. D. L.

• Decision Date: 05 August 1975
• Docket Number: No. 35994,35994
• Citation: 529 S.W.2d 423
• Parties: E. C. S., f/k/a E. C. L., Plaintiff-Appellant, v. J. D. L., Defendant-Respondent. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 423

529 S.W.2d 423

E. C. S., f/k/a E. C. L., Plaintiff-Appellant, v. J. D. L., Defendant-Respondent.

No. 35994.

Missouri Court of Appeals, St. Louis District, Division One.

Aug. 5, 1975.

Motion for Rehearing or Transfer Denied Oct. 22, 1975.

Application to Transfer Denied Dec. 8, 1975.

Newmark & Baris, Irl Baris, Kenneth H. Graeber, St. Louis, for plaintiff-appellant.

Bryan, Cave, McPheeters & McRoberts, Dennis C. Donnelly, St. Louis, for defendant-respondent.

WEIER, Presiding Judge.

This appeal arises from an order of the Circuit Court of the County of St. Louis modifying a decree of divorce.

On July 18, 1969 a decree of divorce was granted to the plaintiff-wife. She was also awarded the care, custody, and control of the three minor children born of the marriage. The defendant-husband was given visitation rights and temporary custody of the children and ordered to pay $200.00 monthly child support. A stipulation by the parties was also made part of the divorce decree in which the defendant had agreed to pay up to $1,000.00 medical and dental expense and $7,000.00 educational expense per year with provisions that the amounts might be increased.

In October of 1969, three months after the decree of divorce, the plaintiff was adjudicated incompetent by the Probate Court of St. Louis County, and a guardian for her person and estate was appointed. The actual physical custody of the three children remained with the defendant although their legal custody had been given to plaintiff. But on July 6, 1972 the decree of divorce was modified giving the defendant legal custody of the children 'until July 1st next following a final judgment of restoration of the divorced wife * * * at which time * * * she * * * shall have the general care, custody and control of said minor children.' The plaintiff's guardian was ordered to pay defendant $333.33 monthly in support of each child.

In April, 1973 defendant filed a motion to modify the 1972 decree, requesting that he be given custody of the children and to delete the provision to return their custody to plaintiff in July. Hearings on defendant's motion did not begin until August 1973. But prior to this, on July 1, 1973, for the first time the children left their father to reside with their mother who had been restored in August of 1972.

On December 28, 1973 the order was entered which sustained the defendant's motion in part and denied it in part. Defendant was awarded custody of the oldest son, then fifteen years of age, and plaintiff was awarded custody of the two younger children, a girl, twelve, and a boy, nine. The order further provided that with an exception with respect to medical insurance, 'neither party shall be obligated to pay the other any sum for the maintenance, support, care or custody of the minor children or for their medical, dental, orthodontic, psychiatric, educational, transportation, entertainment or other expenses of any kind.' Additionally, the order granted each party temporary custody of all three children for various times during the year.

Plaintiff is before us contending the 1973 modification, which divided the children's general custody between the parents and ended all support payments and monetary obligations between each party, is error. The first point plaintiff relies on is that it was error to grant the defendant custody of the older boy because there was no proof of any change of circumstances to justify a modification of the 1972 order, or that plaintiff was an unfit mother, or that it was in the children's best interest to be separated.

Initially we must admit that the determination of the proper custody of children is not an easy or pleasant task. There are no fixed and clear rules to be followed; rather each case must be decided according to its own particular facts, always remembering the primary objective is to reach a result which is in the best interest and welfare of the children. Wood v. Wood, 400 S.W.2d 431, 436(1) (Mo.App.1966). Furthermore, we recognize that the determination of all factual issues in a proceeding on motion for modification of custody provisions of divorce decree on grounds of material changes in circumstances is initially vested in the discretion of the trial court, and its findings should be deferred to unless in conflict with the clear preponderance of the evidence and disclose a manifest abuse of discretion. Pelts v. Pelts, 425 S.W.2d 269, 270(4) (Mo.App.1968).

Defendant filed a bill of particulars in which he explicitly alleged changed circumstances had occurred since the 1972 order. The primary dispute revolved around the plaintiff's problem of alcoholism and whether in fact she still has one since her restoration. Most of the evidence on this point was from the three minor children, and their testimony was at best ambiguous and inconsistent. We see no useful purpose in making a permanent record of the details of this controversy. See Pelts v. Pelts, supra at 270(4). In fact, in this case we largely discount the reciprocal charges of unfitness and misconduct which the parties have made. Obviously, each tends to magnify the other's faults. The law does not demand that parents be perfect, and the comparative merits are not substantial factors in this case since the trial court in fact found both to be fit parents when it awarded each one custody of a child. The real question is whether the trial court's award of custody best serves the interests of the children themselves. J. v. E., 417 S.W.2d 199, 203(1, 2) (Mo.App.1967).

Plaintiff correctly asserts that the party seeking modification of a custody provision has the burden to show a change in circumstances. See Gori v. Gori, 490 S.W.2d 282, 283(1) (Mo.App.1973); Wood v. Wood, supra, 400 S.W.2d 431, 436(2); C. S. v. R. J. S., 488 S.W.2d 663, 665(2) (Mo.App.1972). But this burden must be viewed in the light of the best interest and welfare of the children. C. S. v. R. J. S., supra at 665(3). The court is entitled to inquire very broadly to determine whether the previous decree serves the children's best interest in the light of actual experience and subsequent developments. J. v. E., supra, 417 S.W.2d at 203(4). After the first modification plaintiff was restored. Defendant alleged in his subsequent motion a problem of alcoholism that continued after recovery of competency. Some evidence adduced supported this allegation. Such a problem has a vital effect on the best interest of the children. Such circumstances give rise here to a change of condition.

As to the separation of the children, we recognize that it has frequently been held that absent exceptional circumstances the children of divorced parents should not be separated. But it is clearly within the discretionary power of the trial court to make such a division if it is for the best interest of the children to do so. J. v. E., supra at 203(7--8).

The oldest boy is now sixteen years old, an age at which courts have generally noted the guidance and discipline of his father is most important. See J. v. E., supra at 204(10--12); Meredith v. Krauthoff, 191 Mo.App. 149, 177 S.W. 1112, 1123 (1915). Additionally, the record demonstrates that the boy was not happy in the custody of his mother and voiced a preference to living with his father. Missouri law now specifically recognizes that the child's wishes are to be a relevant factor in the custody decision. § 452.375, RSMo Supp.1973. Although this statute was not yet in effect at the time of the decree in question (see § 452.415, RSMo Supp.1973), Missouri courts have long...