Dutton v. Dutton

• Decision Date: 13 March 1984
• Docket Number: Nos. 46798,46867,s. 46798
• Citation: Dutton v. Dutton, 668 S.W.2d 585 (Mo. App. 1984)
• Parties: Darl Lynn DUTTON, Petitioner-Appellant, v. John Harrison DUTTON, Respondent Cross-Appellant.
• Court: Missouri Court of Appeals

Page 585

668 S.W.2d 585

Darl Lynn DUTTON, Petitioner-Appellant, v.John Harrison DUTTON, RespondentCross-Appellant.

Nos. 46798, 46867.

Missouri Court of Appeals Eastern District.

March 13, 1984.

John C. Livingston, Ellisville, for petitioner-appellant.

Jerry J. Murphy, St. Louis, for respondentcross-appellant.

FRED E. SCHOENLAUB, Special Judge.

Both parties appeal from an order of the circuit court modifying a dissolution decree.

The marriage of the parties was dissolved on July 28, 1980.A separation agreement entered into between the parties was incorporated as part of the decree and the parties were ordered to perform its terms.The agreement provided that it was "not subject to modification except as it pertains to support, custody or visitation of minor children."The agreement was found not unconscionable, and in accordance therewith, the court ordered that petitioner-mother, hereafter referred to as appellant, was to have the care, custody and control of the minor children of the marriage, Cheri, born August 8, 1960, Stephen, born February 14, 1962, Kristen, born November 10, 1964, and Lisa, born February 23, 1970, child support in sum of $50 per week per child and maintenance in the sum of $50 per week for a period of 10 years and 1 month.Respondent-father, hereafter referred to as respondent, was granted reasonable rights of visitation and temporary custody of the minor children.

The separation agreement further provided that appellant was to have the exclusive possession of the family home and should "occupy the said residence with the minor child or children of the parties and shall continue in such occupancy and exclusive possession ..." until she remarries or moves or the children are emancipated or have completed four years of high school, whichever shall occur first, at which time the house shall be sold and the equity divided equally between appellant and respondent.

Respondent also agreed to be solely responsible for the mortgage payments of $369.92 per month until the real estate is sold and subdivision assessments of $125 annually.Petitioner agreed to pay for routine household and yard maintenance and repairs, and petitioner and respondent agreed to be equally liable for major repair costs.

On April 19, 1982, respondent filed this motion to modify seeking custody of the three minor children, the fourth child, Cheri, having become emancipated.Respondent also asked for possession of the marital residence on the same terms as contained in the original separation agreement or, in the alternative, sale to him by petitioner of her interest in the real estate at a fair market value.Appellant answered denying the allegations of the motion and alleging that the relief sought concerning the residence was barred by the separation agreement and decree and Sec. 452.360.2, RSMo 1978.

A guardian ad litem was appointed to represent the interests of the minor children, appeared at the hearing on their behalf, and has filed a brief in this proceeding.Stephen attained the age of 21 years after the hearing date, and Kristen, by her choice and with the consent of appellant, will live with her father.At trial, and on this appeal, the only custody issue pertains to the transfer of the custody of Lisa.

Hearing was held, and on December 30, 1982, the court entered its order modifying the decree.The court transferred custody of Stephen, Kristen and Lisa to respondent, and granted appellant reasonable visitation and temporary custody of Stephen and Kristen as the parties may agree, and temporary custody of Lisa on the first and third weekends of each month, for ten days during the summer vacation, for three days during spring break from school and at other reasonable times.The court further held that after February 1, 1983, respondent would no longer be responsible for the mortgage payments or subdivision assessment, and that the marital home should be sold immediately according to the procedure outlined in Paragraph 5 of the separation agreement.Appellant was granted the right to occupy the house until closing.

The court further entered judgments in favor of appellant's attorney in the sum of $2,700, the guardian ad litem, $1,470, and respondent's attorney, $5,700, against appellant and respondent jointly.

On appeal appellant contends the court erred in transferring custody of Lisa in that the decision was not supported by substantial evidence, was contrary to the weight of the evidence and constituted an erroneous application of the law.She further alleges that the court erred in ordering the immediate sale of the marital residence after modifying custody in that pursuant to the terms of the separation agreement, the decree and applicable statutes, the decree of dissolution was a final property order not subject to modification.She also alleges that the trial court erred in assessing court costs and attorney fees equally against the parties, in that under the evidence concerning the financial resources of the parties, and other factors, she should not have been ordered to pay a portion thereof.In his cross-appeal respondent alleges that the court erred in ordering immediate sale of the marital residence after modifying the custody decree in that the original order entered in the decree of dissolution granting appellant possession of the marital home was subject to modification, and the order should have been modified to give him possession.He further alleges that the court erred in failing to order appellant to pay all of the attorney and guardian ad litem fees in that petitioner was more financially able to pay and based upon other relevant factors they would be more appropriately assessed against her.During oral argument, respondent abandoned his appeal of the order of sale of the property.

Review of this case is governed by Rule 73.01andMurphy v. Carron, 536 S.W.2d 30(Mo. banc 1976).Accordingly, the decree of the trial court will be affirmed unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.Murphy v. Carron, supra, l.c. 32;Whitenton v. Whitenton, 659 S.W.2d 542, 546(Mo.App.1983).

To support a motion to modify custody subsequent to a dissolution decree, however, the moving party carries the burden of showing a substantial change of conditions that necessarily requires a change of custody to serve the best interest of the child.Ryan v. Ryan, 652 S.W.2d 313, 315(Mo.App.1983);Eastes v. Eastes, 590 S.W.2d 405, 408(Mo.App.1979).

Neither party disputes the existence of changed conditions.During the weeks preceding filing of the motion to modify, relationships between appellant and the two older children deteriorated to the point where the children moved from the home and no longer communicate with appellant.In her brief, as in her testimony, appellant objects only to the transfer of custody of Lisa.She expressed the opinion that the family unit had become divided, consisting of "her and Lisa on the one hand and the older children on the other hand."The parties agree that the "real issue" is whether Lisa's welfare and best interest required the change in custody.

The trial court found that appellant had been having trouble effectively communicating with her children, and that this had caused them emotional distress.Appellant argues that she appears to be the victim of rebellious teenagers who succeeded in convincing the trial court that she was the source of all the problems, and that "the trial court was duped and in the process took a child of tender years from her mother much to her detriment."

The testimony of appellant and that of the four children conflicted as to appellant's ability to handle the stress of rearing teenage children.A review of the testimony would add nothing to this opinion.It is the prerogative of the trial court to determine the credibility of the witnesses and to accept or reject all, part or none of the testimony.Whitenton v. Whitenton, supra.The trial court accepted the children's version of events leading up to the filing of this motion, and that testimony was sufficient to support the modification.

Appellant argues that a parent should not lose custody for yelling at her children or for getting emotional, and that there should be some evidence of the "effects of the emotional distress."Courts are not, however, required to wait for manifestations of harmful consequences before action is taken, L.H.Y. v. J.M.Y., 535 S.W.2d 304, 308(Mo.App.1976), it being more sensible to change a child's custody when there is a reasonable likelihood of an adverse effect on the child than to wait until the damage is done and then attempt to repair the damage.Ryan v. Ryan, supra, l.c. 316.

The trial court also considered Lisa's expressed preference, to the guardian ad litem, to live with her father.All of the children expressed the same preference.Appellant contends that the court should have delved into the rationale behind this preference instead of abrogating its decision making function to the child.In our review of this casewe proceed on the presumption that the trial court studied all of the evidence thoroughly and decreed custody in the manner it believed would be in the best interests of the child.McBride v. McBride, 579 S.W.2d 388, 389-390(Mo.App.1979).

Appellant's willingness to relinquish custody of her other children must also be considered.Absent exceptional circumstances, the children of divorced parents should not be separated.In re Marriage of Mihalovich, 659 S.W.2d 798, 801(Mo.App.1983);Cochenour v. Cochenour, 642 S.W.2d 402, 404(Mo.App.1982).No such circumstances have been shown in this case.

Appellant next alleges that the court erred in accelerating the sale of the marital residence contrary to the terms of the separation agreement, the decree, and applicable statutes, contending...