Friend v. Jackson, 14212

• Decision Date: 26 August 1986
• Docket Number: No. 14212,14212
• Citation: 714 S.W.2d 953
• Parties: Stanford Mont FRIEND, Petitioner-Respondent, v. Nelda Lee (Friend) JACKSON, Respondent-Appellant.
• Court: Missouri Court of Appeals

Page 953

714 S.W.2d 953

Stanford Mont FRIEND, Petitioner-Respondent, v. Nelda Lee (Friend) JACKSON, Respondent-Appellant.

No. 14212.

Missouri Court of Appeals,

Southern District,

Division Two.

Aug. 26, 1986.

No appearance for petitioner-respondent.

Van A. Miller, Waynesville, for respondent-appellant.

C. DAVID DARNOLD, Special Judge.

Appellant-mother appeals from the trial court's order changing child custody to the respondent-father. Toby Lane Friend, born December 23, 1975, a male child, and April Dawn Friend, born April 7, 1978, a female child, are the subjects of this custody battle.

The appellant's contention on appeal is that the trial court erred in changing custody because there was no substantial evidence to support said order, that it was against the weight of the evidence, and that it was based on an erroneous declaration of law.

The trial transcript reveals that the parties were married in June of 1973. This was the second marriage for the respondent, and the third marriage for the appellant. Both parties had children by previous marriages. The parties were separated in June of 1981. At that time Toby was five and April was three. A few months thereafter the children moved in with the respondent and his girl friend in Springfield, Missouri.

The divorce decree gave custody to the appellant. On the day of the divorce, which was February 26, 1982, the parties had coffee at a local restaurant and discussed the physical custody of the children. At that time the appellant and the respondent decided that it would be in the best interest of the children that they stay with the respondent, as the appellant was not in a position to take care of the children at that time.

The respondent testified that the appellant had told him that she wanted custody, but that she couldn't take care of the children, and that respondent could have them and keep them as they were happy, and everything was going fine, and she did not want to disrupt their lives. He testified that just shortly after separation from appellant, while he had the children, the appellant had some drinking problems and admitted herself into Park Central Hospital. Appellant testified that it was true that she did allow the respondent to have the children, but thereafter she wanted them back. She testified that the reason the respondent had custody before the divorce, up to the time of the divorce, and after the divorce, was that he threatened and harassed her and she was afraid to get the children.

In March of 1982 the respondent married his girl friend, Gwen, who is his present wife. The respondent, his wife, her two children, and Toby and April continued to live in Springfield. The children attended school in Springfield. There was testimony that the children did fine in school, made good grades, and that respondent attended the parent-teacher conferences.

Appellant testified that she did visit the children several times a year, and that she had them on several weekends, during Christmas holidays, and several weeks in the summer. Respondent testified that the appellant did not see the children more than two or three times a year, around Christmas time, and a week or two in the summer. Respondent stated that appellant brought the children back to him earlier than they had both agreed on from the summer visits. Respondent testified that the longest single period of time, from the date of the decree until August 16, 1984 that the mother had the children was two-and-one-half weeks.

On August 16, 1984, appellant appeared at the respondent's home while respondent was working, picked up the two children and their clothes, took them back to Waynesville or Fort Leonard Wood, and left them with a baby sitter for the night. On August 17, 1984, she and Mr. Jackson went to Miami, Oklahoma, and got married. The next day, the respondent talked to the appellant and was told by her that she had the children and that she was going to keep them.

Respondent testified that in his opinion the children's overall attitude toward him changed completely after the appellant took the children. He testified that they now seem to be emotionally upset when he picks them up, however, they settle down after he has them for a short period of time. Respondent's present wife, Gwen, testified that she got along fine with the children, and that the children got along fine with her children during the period from before the divorce in February 1982, until the time the appellant took the children. Gwen also felt that the children's attitudes had changed since the appellant took custody of them. She stated that they no longer wanted to mind and they had discipline and attitude problems since they had moved in with appellant.

Respondent has a three-bedroom house. The boys share a bedroom and the two girls share another bedroom. The appellant's home has three bedrooms and each of the children have a bedroom of their own.

The boy stated that he got along fine with both his stepfather and with his stepmother. He preferred to have a room of his own by himself, but preferred to go to school in Springfield. He testified that he had friends both places. He said that he did not have any problems either with his mother or his dad, and that he loved them both. The daughter testified that she liked her stepmother and her stepfather and that she had friends at both schools, but preferred the Fort Leonard Wood School. She indicated that she liked the house in Springfield over the house in Fort Leonard Wood because there were a lot of other houses around. She liked...