Flathers v. Flathers, WD

• Decision Date: 22 July 1997
• Docket Number: No. WD,WD
• Parties: Jennifer M. FLATHERS, Respondent, v. James W. FLATHERS, Defendant, Dennis Eugene Flathers and Gwendolyn Kay Flathers, Appellants. 53063.
• Court: Missouri Court of Appeals

Page 463

948 S.W.2d 463

Jennifer M. FLATHERS, Respondent, v. James W. FLATHERS, Defendant, Dennis Eugene Flathers and Gwendolyn Kay Flathers, Appellants.

No. WD 53063.

Missouri Court of Appeals,

Western District.

July 22, 1997.

R.W. Shackelford, Lexington, for Respondent.

Karl H. Timmerman, Grandview, for Appellants.

James E. Hoke, Harrisonville, Guardian Ad Litem.

Before ULRICH, C.J., P.J., and LAURA DENVIR STITH and EDWIN H. SMITH, JJ.

EDWIN H. SMITH, Judge.

Appellants, Dennis and Gwendolyn Flathers, appeal the judgment of the trial court awarding, inter alia, in a dissolution of marriage action involving their son, James, the physical custody of their two grandchildren to the mother, Jennifer M. Flathers (respondent). Appellants claim that in awarding custody of their two grandchildren to respondent, the trial court erred, in that: (1) in doing so, it erroneously declared and applied the law in relying on the presumption favoring the award of custody of minor children to parents; and, (2) the award, as being in the best interests of the children, was against the weight of the evidence.

We affirm.

Facts

Respondent's and James W. Flathers' first child, C.C.F., was born out of wedlock on July 1, 1993. At the time, respondent was 17 years old and living with her parents in Higginsville, Missouri. Soon thereafter, respondent, James and C.C.F. moved in with James' parents (appellants) in Belton. Respondent and James were married on August 30, 1993. The living arrangement proved to be troublesome, and in January of 1994, appellants asked respondent and James to move out of their home. The couple and C.C.F. lived in a variety of locations in the subsequent months. Eventually, taking care of C.C.F. proved to be too much for respondent and James, and appellants took physical custody of their grandson at the parents' request. In March of 1994, letters of guardianship of C.C.F. were issued to appellants by the Circuit Court of Cass County in Case No. CV294-43P with the consent of respondent and James because they were unable to provide for his necessities.

Respondent gave birth to the couple's second child, J.D.F., on December 16, 1994. Less than a week later, Division of Family Services (DFS) took J.D.F. from the parents and placed her in the care and custody of the appellants. Appellants were issued letters of guardianship of J.D.F. in February of 1995 in the Circuit Court of Cass County in Case No. CV295-15P with the parents' consent due to their inability to provide for her necessities. By the summer of 1995, respondent and James had separated; James had a new girlfriend; and, respondent had moved back in with her parents.

Respondent filed her petition for dissolution of marriage in the Circuit Court of Lafayette County on August 25, 1995. In her petition, she did not request custody of the children. On November 13, 1995, she filed a request to terminate guardianship of the children. Two weeks later, appellants filed a motion to intervene in the dissolution action, which respondent opposed and requested that she be awarded custody of the children. The motion to intervene was sustained January 9, 1996. The next day, the parties agreed to transfer the dissolution action to Cass County, so it could be consolidated with the motions to terminate guardianships.

The trial on respondent's petition to dissolve her marriage and on her motions to terminate the guardianships began April 25, 1996, and concluded the next day. After hearing evidence, the trial court terminated the guardianships and awarded in the dissolution action, inter alia, custody of the two minor children to respondent, finding that continued custody with appellants "will not serve the children's best interest and will tend to alienate the children from their natural mother and confuse the minor children in their relationship with their natural parents and extended family." The court noted that it found respondent to be credible and sincere, and that she was employed and lived in a stable home environment with her parents and the benefit of their support and assistance. There was also evidence that she had completed a course to become a certified nurse's aide and had attended G.E.D. classes. Further, the trial court found that joint custody with James was inappropriate in that he had not sought custody, and that respondent was a fit and proper person to care for the children. This appeal follows.

Standard of Review

As to an award of child custody, we will affirm the decision of the trial court unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Gilman v. Gilman, 851 S.W.2d 15 (Mo.App.1993). A judgment will be set aside as being "against the weight of the evidence" when the appellate court has a "firm belief that the judgment is wrong. Weight of the evidence refers to weight in probative value, not quantity or the amount of evidence. The weight of evidence is not determined by mathematics, but on its effect in inducing belief." Silver Dollar City, Inc. v. Kitsmiller Const. Co., Inc., 931 S.W.2d 909, 918 n. 18 (Mo.App.1996). The trial court has broad discretion in child custody matters, and we will affirm its decision unless we are firmly convinced that the welfare and best interests of the children requires otherwise. Replogle v. Replogle, 903 S.W.2d 551, 554 (Mo.App.1995); P.L.W. v. T.R.W., 890 S.W.2d 688, 690 (Mo.App.1994). Greater deference is given to the trial court in child custody cases than in other types of cases. Replogle, 903 S.W.2d at 554; Johnson v. Johnson, 839 S.W.2d 714, 717 (Mo.App.1992).

I.

Appellants claim in their sole point on appeal that the trial court erred in awarding custody of the minor children to respondent. Their claim is presented in two sub-points. In sub-point A, they claim the trial court, in awarding custody to respondent, erroneously declared and applied the law by invoking the presumption which favors custody to parents over third parties. In sub-point B, appellants claim that awarding custody of the minor children to respondent as being in their best interests was against the weight of the evidence. We will address each sub-point separately.

A. Parental Presumption

In claiming that the trial court erroneously applied the presumption favoring custody to parents over third parties, commonly referred to as the "parental presumption," appellants contend that the presumption does not apply as a matter of law here because they already had been awarded actual physical custody of the minor children pursuant to letters of guardianship of minors. Although we agree that lawful, actual physical custody for a significant period of time in third parties may, under certain circumstances, be sufficient to rebut the parental presumption, we disagree that it does not apply as a matter of law where letters of guardianship of a minor have been issued, as was the case here.

Section 452.375.5 ¹ controls the award of custody to third parties. This subsection provides in pertinent part that:

Prior to awarding the appropriate custody arrangement in the best interest of the child, the court shall consider each of the following as follows:

(1) Joint custody to both parents, which shall not be denied solely for the reason that one parent opposes a joint custody award;

(2) Sole custody to either parent; or

(3) Third party custody or visitation:

(a) When the court finds that each parent is unfit, unsuitable, or unable to be a custodian, or the welfare of the child requires, and it is in the best interests of the child, then custody, temporary custody or visitation may be awarded to [a third party].

§ 452.375.5 (emphasis added). Pursuant to this subsection, a third party must show that "each parent is unfit, unsuitable, or unable to be a custodian, or the welfare of the child requires" it, rendering it in the best interests of the child to award his or her custody to the third party. § 452.375.5 (emphasis added). We read the unambiguous language of this statute as creating a rebuttable presumption that parents are fit, suitable, and able custodians of their children and that their welfare is best served by awarding their custody to their parents. Stated another way, natural parents are not to be denied custody of their minor children, unless the third party seeking custody first carries its burden of showing that each parent is unfit, unsuitable, or unable to have custody or that the welfare of the children requires it. Separate and apart from this statutory authority for the presumption, the parental presumption has long been recognized in the case law. In Interest of C.L.M., 625 S.W.2d 613, 617 (Mo. banc 1981); In Interest of Hill, 937 S.W.2d 384, 386 (Mo.App.1997); C.M.W. v. C.W., 786 S.W.2d 623, 625 (Mo.App.1990); In Interest of Feemster, 751 S.W.2d 772, 773 (Mo.App.1988); In Interest of K.K.M, 647 S.W.2d 886, 889 (Mo.App.1983). ² Thus, as appellants admit, there is a parental presumption. The question is whether it has any application in the instant dissolution action.

As to the parental presumption, appellants contend that it does not apply here, because in the guardianship proceedings, wherein appellants were granted letters as to C.C.F. (Case No. CV294-43P) and as to J.D.F. (Case No. CV295-15P), they had already been awarded "custody" of the children, the trial court having found in those proceedings, pursuant to the stipulation of the parties, respondent and the children's father to be "unwilling, unfit, or unable" to serve as custodians for the children. Thus, appellants argue that the parental presumption did not exist in the dissolution action and the determination of custody therein should have been treated as a motion to modify the "third-party custody" awarded by the trial court in the guardianship proceedings. We disagree.

Without directly deciding the issue, w...