D.K.L. v. L.C.L., 54329

• Decision Date: 27 September 1988
• Docket Number: No. 54329,54329
• Citation: 764 S.W.2d 664
• Parties: D.K.L., Petitioner-Respondent, v. L.C.L., Respondent-Appellant.
• Court: Missouri Court of Appeals

Page 664

764 S.W.2d 664

D.K.L., Petitioner-Respondent, v. L.C.L., Respondent-Appellant.

No. 54329.

Missouri Court of Appeals,

Eastern District,

Division One.

Sept. 27, 1988.

Motion for Rehearing and/or Transfer to Supreme Court

Denied Nov. 29, 1988.

Lawrence O. Willbrand, Lynn D. Barnett, St. Louis, for respondent-appellant.

Robert Francis Dreyer, Thomas J. Casey, St. Louis, for petitioner-respondent.

CRANDALL, Presiding Judge.

Respondent, L.C.L. (wife), appeals from the decree of dissolution of her marriage to petitioner, D.K.L. (husband). She challenges the award of custody of the minor daughter to husband and the division of marital property. We affirm.

Husband and wife were married in November 1978. At the time of the marriage, wife was 17 years of age and husband was 20. In February 1979, a daughter, M.L., was born. The parties separated on January 1, 1986, when wife moved out of the family home to live with her boyfriend.

During the marriage, wife stayed home with M.L. until M.L. was two years of age. After that, wife was employed sporadically at jobs which paid minimum wage. She changed employment frequently. There was evidence that she was suspected of stealing from a previous employer as well as from members of her family. Wife pleaded guilty to a charge of trespassing which resulted from her breaking into an employer's place of business, allegedly to retrieve her paycheck. At the time of dissolution, wife was employed full time and was being paid at the minimum wage rate.

Throughout the marriage, wife frequented bars in the evening hours and would often stay out until 2:00 or 3:00 a.m. She sometimes left M.L. with a baby-sitter overnight. She admitted that she engaged in extramarital affairs with several men, both before and after the separation from husband. Neighbors testified that one man visited with wife in the marital house while M.L. was at school.

At the time of dissolution, husband had been steadily employed for almost ten years with the same company. He was earning about $1,200 every two weeks.

Husband went out two nights per week during the summer to play softball. He admitted to smoking marijuana "socially." There was contradictory evidence as to whether he had been involved in an extramarital affair before the separation.

After the separation, husband continued to reside in the family home with M.L. For about six months, he assumed the primary responsibility for the care of M.L. Wife visited with M.L. irregularly during that period of time.

At the pendente lite hearing, M.L. expressed her wish to live with her mother. The court awarded temporary custody of M.L. to wife for three weeks of the month and to husband for one week of the month.

The trial court issued a decree of dissolution and determined the aggregate value of the marital property to be approximately $45,000 to $48,000. The trial court did not make findings as to the value of specific items of marital property. The trial court awarded husband the family home, the furnishings in his possession, a 1985 Cutlass, a 1980 Mustang, a savings account, a checking account, stocks, his pension plan, and life insurance policies. The court awarded wife the furnishings in her possession and $5000 for her interest in the marital property awarded to husband, payable to wife at $100 a month.

The trial court also awarded to husband primary custody of M.L. and ordered wife to pay $25 per week in child support to husband. Wife was granted visitation rights and temporary custody. At the dissolution proceeding, when asked by the court with whom she wished to live, M.L. expressed no preference as to either parent.

In her first point, wife contends that the trial court erred in awarding custody of M.L. to husband. ¹ She first claims that there was no evidence that she was unfit and that it would be in the best interests of a daughter to be in the custody of her mother. Secondly, wife claims that the status of the pendente lite (PDL) award of custody to her was such that the husband must show a change in circumstances in order to obtain primary custody at the time of the dissolution, a burden similar to that of a petitioner in a motion to modify. See Section 452.410, RSMo (1986).

As to the later proposition, wife cites no authority and there is none. A PDL award is simply that, a temporary award pending the final hearing. Tzinberg v. Tzinberg, 631 S.W.2d 681, 683 (Mo.App.1982). The purpose of the PDL order is to provide temporary relief pending a full hearing on the merits.

As to wife's former proposition, husband does not have to prove that wife is an unfit mother in order to be awarded custody. Whether the mother is fit or unfit is simply evidence bearing on the decision of custody. While unfitness might preclude an award of custody, fitness does not mandate an award of custody. A contrary holding would violate the statutory prohibition against custodial preference based upon the sex of the parent and/or the age and sex of the child. Section 452.375.3, RSMo (1986).

The court must determine custody in accordance with the "ultimate and sole test" of the best interests of the child. Section 452.375.2, RSMo (1986). The trial court has considerable discretion in awarding custody, and its judgment should not be disturbed unless the best interests of the child so demand. M.D.R. v. P.K.R., 716 S.W.2d 866, 868 (Mo.App.1986). The trial court has the superior opportunity to judge the credibility, sincerity, and character of the witnesses, as well as other intangibles that might not be fully revealed by the record. Id. at 868-869.

The award of custody may not be used as a reward or punishment of either parent. Bashore v. Bashore, 685 S.W.2d 579, 581 (Mo.App.1985). The court may, however, consider the moral fitness of the parents in determining who should have custody of the child. M.D.R., 716 S.W.2d at 869. A good environment and a stable home is generally considered the most important single consideration in custody cases. M. v. M., 688 S.W.2d 384, 386 (Mo.App.1985). There must be considered what conduct a parent may either inspire by example or foster by condonation. Past and present activities may be a reliable guide to the priorities of a parent. Id.

In the present case, there was evidence that, during the marriage, wife spent many evening hours bar-hopping, had sexual relations with men not her husband, was suspected of stealing, and had employment difficulties. There was sufficient evidence for the trial court to conclude that wife's actions did not demonstrate the maturity and judgment required to be a good custodial parent.

Although husband's conduct during the marriage was less than paragon, his treatment and parenting of M.L. was acceptable. His steady employment record and superior earning potential augur a...