Fastnacht v. Fastnacht, WD

• Decision Date: 04 May 1981
• Docket Number: No. WD,WD
• Citation: 616 S.W.2d 98
• Parties: Rae FASTNACHT, Respondent, v. Dennis FASTNACHT, Appellant. 31527.
• Court: Missouri Court of Appeals

Page 98

616 S.W.2d 98

Rae FASTNACHT, Respondent, v. Dennis FASTNACHT, Appellant.

No. WD 31527.

Missouri Court of Appeals, Western District.

May 4, 1981.

Theodore M. Kranitz, St. Joseph, Jay Macey Rosenblum, Kansas City, for appellant.

Lee M. Nation, Michael E. Curley, Kansas City, for respondent.

Before PRITCHARD, P. J., and TURNAGE and CLARK, JJ.

CLARK, Judge.

In this dissolution of marriage action, disputed issues included child custody and the division of marital property. The husband appeals from the judgment entered contending (a) the award of custody of one child to the wife was erroneous because contrary to the weight of the evidence on the issue of the wife's conduct and moral fitness and (b) the decree was incomplete and, hence, interlocutory because values were not assigned to certain marital assets.

The parties were married in 1970, separated in 1979 and filed a petition and cross petition in which each sought dissolution of the marriage. One child was born of the marriage and another had been born to the wife in a former marriage, but was adopted by the husband. The contested issue of custody focused on the husband's allegations of the wife's immorality and her asserted unfitness as a child's custodian. The property issues were those usually found in the competing claims of estranged spouses for the marital assets. The court's decree awarded custody of the younger child, a daughter, to the wife; custody of the other child, a son, to the husband; and set apart the marital assets.

The husband's first point contends that undisputed evidence branded the wife as both immoral and unrepentant in libertine conduct with other men. He suggests that this evidence precludes the award of custody which the court made. The evidence on the subject concerned a relationship between the wife and another man, one Neil, openly conducted during the pendency of this action, and a previous extramarital affair by the wife before the separation. By contrast, the husband observes that no evidence impugned his morals or character, the wife acknowledged him to be a good father and, thus, on all the evidence, he contends an award to him of custody of both children was mandated.

On the evidence adduced, the unfitness of the wife as a prospective custodian for one or both of her children is not marked with the clarity or persuasiveness which the husband's argument presumes. While the wife did acknowledge intimacies with Neil, she firmly contested any "cohabitation," as did he, and professed it as her intention to marry Neil when legally capable. The record does not support the claim that the wife was sexually promiscuous. More importantly, however, no evidence demonstrated that the wife's conduct in her relationship with Neil had an adverse effect on the children or that she was otherwise unwilling or unable to care adequately for a minor child.

Extramarital sexual conduct is not alone sufficient to brand a parent an unfit custodian for a child if not accompanied by evidence that the conduct has had or may be expected to have an adverse effect on the child. Eastes v. Eastes, 590 S.W.2d 405, 408 (Mo.App. 1979); In re Marriage of B____ A____ S____, 541 S.W.2d 762, 768 (Mo.App. 1976); McClarnon v. McClarnon, 528 S.W.2d 795, 796 (Mo.App. 1975). The issue is not condemnation or approval of a moral standard but whether the conduct in question is a detriment to the child's welfare. Klaus v. Klaus, 509 S.W.2d 479, 481 (Mo.App. 1974). There is a presumption in any award of custody that the trial court studied the evidence thoroughly and ordered that which was in the best interests of the child. L.H.Y. v. J.M.Y., 535 S.W.2d 304 (Mo.App. 1976).

On appeal, the trial court's findings on matters of custody control unless the reviewing court is convinced that the welfare of the child requires some other disposition. Johnson v. Johnson, 526 S.W.2d 33 (Mo.App. 1975). Moreover, the determination of the lower court as to custody of children is granted greater deference than in other cases. Matter of B.J.K., 573 S.W.2d 382 (Mo.App. 1978).

The evidence in this case concerning the wife's conduct was disputed and lacked any firm basis on which it could be concluded that demonstrable potential for adverse effects to a child in her custody existed. No absolute rule determines which of contending parents in a dissolution case is entitled to custody of the children, but each case must be decided on its own facts. J____ A____ F____ v. P____ J____ F____, 552 S.W.2d 739 (Mo.App. 1977). Under this and the other authorities cited, revision of the custody award here could only be justified on a firm conviction that the judgment was wrong and that the evidence demonstrated no arguable placement choice. The evidence here is not of that quality, particularly when the trial court's decision is fortified by its unique opportunity to observe firsthand the demeanor of the parties and to hear from the children themselves. Heeding also the admonition of Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), the awards of custody in this case must be affirmed.

On the issue of property division, the husband asserts that the decree is faulty and lacks finality because it does not "identify the property by both description and value." In argument, no complaint is made that the alleged insufficiency of the decree raises the prospect that any assets were overlooked or that any property remains undivided. The sole objection rests on the absence from the decree of value assignments which the husband argues are obligatory under Hopkins v. Hopkins, 597 S.W.2d 702 (Mo.App. 1980), and subsequent cases. ¹ While the husband also makes no complaint that the property division was unjust and infers no latent complaint to this effect, he does observe in the abstract that an inequitable division of property could not be demonstrated absent values from which to launch that...