Cissell v. Cissell, 39442
| Decision Date | 03 October 1978 |
| Docket Number | No. 39442,39442 |
| Citation | 573 S.W.2d 722 |
| Parties | Daniel Joseph CISSELL, Respondent, v. Gloria Kennedean CISSELL, Appellant. . Louis District, Division Two |
| Court | Missouri Court of Appeals |
Wayne L. Millsap, Pamela S. Wright, Clayton, for appellant.
Morris W. Taylor, Clayton, for respondent.
Appellant-wife (hereafter "defendant") contests the provisions of a dissolution of marriage decree concerning child custody, maintenance and attorney fees.
First, the custody issue whereby defendant contends the plaintiff's temporary custody impinges on her right to give the children religious training.
The court awarded plaintiff-husband temporary custody of the parties' eight- and five-year-old children three weekends a month from Saturday morning to Sunday evening, four continuous weeks during the summer, on the children's birthdays, every Christmas Eve and on alternate national legal holidays.
Plaintiff is a Catholic and by agreement the two children were baptized in that faith. Two years before separation defendant joined and has become active in the Jehovah Witness faith. She contends the temporary custody provisions prevent her from determining the children's religious training. She testified she and the children do "door-to-door religious work" twice a week and on Saturdays, for an hour or two; attend two-hour midweek evening church meetings and attend church Sunday mornings and have a one-hour book study session Monday evenings in the home.
Defendant-mother asks us to alter the temporary custody provision, contending the trial court erred in granting plaintiff the described temporary custody because it impinges on her right under § 452.405 providing that "the custodian may determine the child's upbringing, including his . . . religious training."
Plaintiff-father does not challenge the defendant-mother's right to give the children religious training, but he counters by relying on the further provision of that statute declaring the court may consider whether by "a specific limitation of the custodian's authority the child's . . . emotional development (would be) impaired." He contends the children's emotional development would be impaired without his shared custody. Plaintiff further relies on § 452.400, VAMS, granting him reasonable visitation rights, to be restricted only if that endangers the children's emotional development; and he also relies on § 452.375, VAMS, declaring the trial court shall consider the wishes of both parents and their interrelationship with the children.
Defendant-mother has the burden of showing the children's best interests are not served by the father's decreed temporary custody. The decree will not be disturbed unless clearly erroneous and the children's welfare requires some other disposition; the contending parties' personal rights are of secondary importance. Northrup v. Sieve, 517 S.W.2d 470(1-5) (Mo.App.1974).
Considering the cited statutes together we find them consistent with pre-existing case law. Courts encourage the continued interests, love and affection of divorced parents for their children and strive to afford maturing children ample opportunity for close contact with both parents, (Northrup, supra, (8, 9)), and hold that where both parties are proper parents, as here, each has the right to reasonable access to the children. In re Marriage of Powers, 527 S.W.2d 949(3-5) (Mo.App.1975). In Rogers v. Rogers, 430 S.W.2d 305(8) (Mo.App.1968), the court held it was error to omit making provisions for visitation by a parent who was not shown to be an unfit custodian.
Although the defendant-mother does not contend plaintiff-father has no right of access or visitation, she is asking this court to alter the temporary custody provisions, which the trial court believed to be in the children's best interests. She claims her right to determine the children's religious upbringing is superior to the father's temporary custody rights. We hold neither right is superior to the other; both are important to the children's welfare. Our review is determined by this principle and we are convinced that...
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