Cernuto v. Cernuto

• Court: Missouri Court of Appeals
• Writing for the Court: CRIST; CRANDALL, P.J., and REINHARD
• Citation: Cernuto v. Cernuto, 779 S.W.2d 251 (Mo. App. 1989)
• Decision Date: 18 July 1989
• Docket Number: No. 55816,55816
• Parties: In re the Marriage of Patricia K. CERNUTO, Respondent, v. Philip J. CERNUTO, Appellant.

Page 251

779 S.W.2d 251

In re the Marriage of Patricia K. CERNUTO, Respondent, v. Philip J. CERNUTO, Appellant.

No. 55816.

Missouri Court of Appeals,

Eastern District,

Division One.

July 18, 1989.

Chester A. Love, Jr., Daniel P. Card, Bryan L. Hettenbach, Clayton, for appellant.

Robert A. Hutton, Jr., St. Louis, for respondent.

CRIST, Judge.

Husband appeals the trial court's order awarding temporary custody of the parties' minor children and child support to wife and granting a temporary restraining order restricting husband from the marital home. We affirm.

Husband and wife were married on October 25, 1980. Two children were born of the marriage: one born November 3, 1981; the other born February 11, 1985. Throughout the marriage, husband and wife resided together in the marital home; husband as the primary wage earner, wife as the primary homemaker. Husband continues to work as Director of Human Resources for Angelica Health Care Services. Since the parties' separation, wife has been working as a secretary at Joe Hood's Services.

Wife filed for dissolution of the marriage on September 2, 1988. On that same day, wife filed a pendente lite motion for temporary custody, child support, maintenance, temporary restraining order, costs and attorney's fees. Husband subsequently filed his counter motion for temporary custody and temporary restraining order on October 7, 1988.

Both parties' motions were heard on October 13, 1988, in a consolidated hearing. Evidence at trial revealed and wife admitted to several extra marital affairs during the latter part of the parties' marriage. The trial court awarded temporary custody and child support in the amount of $200 per month per child to be paid to wife and granted a temporary restraining order restricting husband from the marital home. Additionally, husband was ordered to pay as additional child support the mortgage and taxes on the marital home. The trial court, in its order, provided in pertinent part:

[T]he Court notes, and is not unmindful of petitioner's [wife's] marital misconduct. Were the Court not obligated to follow the appellate decisions of this state, the Court would place the children of the marriage in respondent [husband] until further Orders are made. The Court believes that petitioner's misconduct has been patently destructive of the marital relationship, and believes that even though the misconduct did not occur in the presence of the children, there is real and substantial harm to the children in situations as appear in this record. Such is not the state of the law; however, and the court may not impose a personal standard of conduct on the parties.

On October 24, 1988, husband motioned to amend judgment and in the alternative motion for new trial. This motion was heard on November 21, 1988. The trial court overruled husband's motion. Its order stated in pertinent part:

[T]he Court is persuaded that petitioner's [wife's] misconduct is but one factor to have been considered in the decision regarding child custody; ...