Dent v. Dent, WD

• Decision Date: 03 February 1998
• Docket Number: No. WD,WD
• Citation: 965 S.W.2d 230
• Parties: Michelle B. DENT, Respondent, v. Jeffrey P. DENT, Jr., Appellant. 53978.
• Court: Missouri Court of Appeals

Page 230

965 S.W.2d 230

Michelle B. DENT, Respondent, v. Jeffrey P. DENT, Jr., Appellant.

No. WD 53978.

Missouri Court of Appeals Western District.

Feb. 3, 1998.

Motion for Rehearing and/or Transfer to

Supreme Court Denied March 31, 1998.

As Modified March 31, 1998.

Application for Transfer Denied

May 26, 1998.

Peter M. Schloss, Liberty, for appellant.

James F. Ralls, Jr., Liberty, for respondent.

Before ULRICH, C.J., and SMART, J., and TURNAGE, Senior Judge.

ULRICH, Chief Judge.

Jeffrey P. Dent, Sr. (Father) appeals the order of the trial court granting Michelle B. Dent (Mother) sole custody of their minor children, Jeffrey Dent, Jr. and Sarah Dent and awarding Mother attorney fees. Father raises three points of error on appeal. He contends the trial court erred in (1) failing to appoint a guardian ad litem where allegations that the children were subject to abuse and neglect were disclosed at trial; (2) designating Mother as sole custodian of the minor children where Father and Mother had agreed to the appropriateness of joint custody and where the evidence established that Father was a stable and responsible individual in contrast to Mother who was unstable; and (3) awarding Mother attorney fees where the relative financial circumstances did not warrant it, Father's efforts to seek custody were reasonable and Mother diverted marital assets both during and prior to litigation. For the following reasons, the judgment of the trial court is affirmed in part and reversed in part. The case is remanded for modification of the portion of the judgment granting child custody to conform with this opinion and for consideration of the amount of child support to be awarded by Mother to Father and for entry of such award.

FACTS

Father and Mother were married on February 14, 1987. Two children were born of the marriage, Jeffrey Dent, Jr. born January 18, 1990, and Sarah Dent, born June 11, 1992. Mother testified that she and Father shared equally in the division of child care, housework and cooking.

Approximately two months after Sarah was born, Mother began to frequent bars two to three times per week, leaving the children in the care of Father. Mother testified that she drank approximately six drinks every night and spent approximately $20.00 per evening. In April of 1993, Mother was arrested for driving without her headlights on and taken to the police station where she submitted to a breathalyzer test. Mother acknowledged drinking and driving on that occasion. Mother resisted Father's complaints about her conduct.

Father confronted Mother about her consumption of alcohol and frequenting of bars in August, 1993. Mother elected to move out of the home, leaving the children with Father. This separation lasted two to three weeks. When Mother returned to the home, she and Father began seeing a marriage counselor. One and one-half weeks later, Mother again moved out of the home and again left the children with Father.

Mother testified that she returned to the home in October, 1993. Father testified, however, that this separation lasted three months, until December, 1993. Father and Mother again attempted reconciliation, and Mother agreed to quit frequenting bars to facilitate the reconciliation. Mother began frequenting bars again, however, in May, 1994. Mother testified she went to the bars six or more times per month.

Mother moved out of the home again in June, 1994, leaving children with Father. Father, however, allowed Mother to take the children on July 22, 1994, in hopes that Mother would assume more parenting responsibility. During this time period, Father paid Mother $300.00 every two weeks in child support and gave her additional money for groceries, rent and a rent deposit.

Mother suffered from an "anxiety attack" in November, 1994, necessitating two to three days hospitalization. Father visited Mother at the hospital and she suggested that the children reside with Father as this would be better for the children. Mother made this suggestion knowing that Father was co-habitating with his girlfriend, Shirley Bernard. When the children were returned to Father's custody they were pale, drawn and had dark circles under their eyes. Sarah had dried food and dry sticky juice in her hair. Sarah was also experiencing dental problems. Both children manifested behavioral problems. Mother moved in with her parents until she was better. Mother received a prescription for anti-depressant medicine and physicians indicated that she should continue taking the medicine for years. Mother, however, stopped taking the prescribed medicine three months later because she believed her condition improved. Mother has not suffered further anxiety attacks.

The children resided with Father between November 1994 and August 1995. While Mother agreed to pay Father $100.00 every two weeks in child support, Father testified that Mother only gave him a total of $175.00 during that time period. During the same time period, Father gave Mother money to buy Christmas presents for the children. Mother also received an income tax refund in the spring of 1995 for $2,711.00, but informed Father the refund was $600.00. Mother did not pay her parents rent although her mother testified that she may have purchased groceries for the household. Mother testified she gave her parents $1,500.00 of the tax refund. During the summer of 1995, Mother's gas service was stopped and her car repossessed.

Mother testified that the parties originally agreed that the children would be returned to her custody after her condition improved. Mother removed the children from their daycare center on August 2, 1995, and refused to return them to Father. Mother did not allow the children to see Father on his birthday anniversary, August 3. Mother filed a Petition for Dissolution of Marriage on August 4, 1995, and did not permit Father to see the children until August 16, 1995. Mother allowed Father to see the children at her home, in her presence, only.

Mother permitted Father unrestricted visitation in October 1995. Father testified that he paid Mother child support in the form of direct payments to Mother and by paying for the children's daycare. Father also provided the children's health insurance. Mother testified that Father gave her $55.00 each week from August 1995 to the time of trial in addition to paying for the children's day care expenses.

Jeffrey was enrolled at the Santa Fe Trails child care program from September 1995 to July 22, 1996. Sarah was enrolled in that program from January 1996 to July 22, 1996. During Sarah's enrollment at the center, she suffered from a medical problem that caused her to soil her pants. When the program staff told Mother that it was not equipped to deal with children who were not toilet trained, Mother assured the staff that Sarah was toilet trained. Mother told the staff members that she had taken Sarah to a physician but then became upset when they repeatedly requested that Mother provide them with a physician's statement regarding Sarah's bowel problem. Mother was not prompt bringing Sarah clean changes of clothing, sometimes taking as long as two hours to bring the clothing. Mother hung up the telephone when staff members contacted her. On one occasion, Mother yelled at the caller, hung up the telephone, and retrieved Sarah from the center. Mother grabbed Sarah's arm and yelled at the staff member that she could lose her job for this. Mother admitted at trial that on one occasion she was ready to "beat [Sarah's] ass" because she was "pooping in her pants" but Mother never struck Sarah. After Mother changed Sarah's day care service, no further problems were experienced.

Staff members for the daycare center testified that the children's general condition deteriorated during the course of their enrollment at the center. The staff testified the children wore dirty clothes and had dirt on their necks. Their hair was unkept and matted. Sarah's hair often looked like she had slept with her hair braided and several times she wore the same clothing two days in a row. Angela Kenie, who watched the children the last two weeks of August when the Santa Fe Trails facility was closed, testified that Mother's home was disorganized and dirty. Mother testified that the children's bathing was affected due to her gas service being stopped when she was unable to pay her gas service bill.

Mother testified that she and her boyfriends consumed alcohol in the presence of the children. Mother also testified that her brother, David, resided with her and the children. Mother allowed David to consume alcohol at the home although he was then only seventeen or eighteen. The children were never left unattended or unsupervised. On one occasion, Mother left Jeffrey in the care of David who failed to get Jeffrey to the school bus timely.

Mother swatted Jeffrey on the rear end but denied ever striking Jeffrey.

Father filed a Motion for Temporary Custody and child support on September 22, 1995. Father alleged that Mother secreted the children and refused to inform Father where they were. He also alleged that Mother refused to allow Sarah to attend scheduled dental appointments necessary to address her dental problems and that Mother had abandoned the children twice when she moved out of the home and left the children in his care.

At the conclusion of the trial, the court granted custody of the children to Mother with specific visitation to Father. Although both parties had requested joint custody, the court declined to enter an order of joint custody, finding that Mother and Father could not effectively communicate with each other. The court also awarded Mother attorney fees in the sum of $3,000.00. This appeal followed.

STANDARD OF REVIEW

As this is a court tried case, the judgment of the trial court will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or...