Gentry v. Simmons, WD

• Decision Date: 05 July 1988
• Docket Number: No. WD,WD
• Citation: 754 S.W.2d 579
• Parties: Fredalyn T. (Simmons) GENTRY, Petitioner-Respondent, v. William E. SIMMONS, Respondent-Appellant. 39823.
• Court: Missouri Court of Appeals

Page 579

754 S.W.2d 579

Fredalyn T. (Simmons) GENTRY, Petitioner-Respondent, v. William E. SIMMONS, Respondent-Appellant.

No. WD 39823.

Missouri Court of Appeals Western District.

July 5, 1988.

William E. Simmons, Clinton, pro se.

Linda F. Dycus, Kansas City, for petitioner-respondent.

Before NUGENT, P.J., and SHANGLER and CLARK, JJ.

CLARK, Judge.

In this dissolution of marriage action, William Simmons moved to modify the 1982 decree in respect to custody of his fifteen year old daughter. The girl's custody had been granted in the decree to the mother, Fredalyn. The motion alleged changes in circumstances since entry of the decree and the desire of the girl to live with her father. The trial court denied the motion, entered a judgment of civil contempt against the father and awarded the mother judgment against the father for $2500.00 in attorney fees and a fee of $1000.00 to the guardian ad litem. The father appeals. We reverse the judgment.

This case has a voluminous record history. Some sixty motions have been filed since the decree was entered, the majority of which were filed by the mother raising complaints about custody of and visitation with the children. Three children were born of the marriage, twins, Jim and Jamie born in 1972, and John, born in 1977. The original decree awarded custody to the mother. In 1983, custody of Jim was transferred to the father by agreement of the parties, confirmed by court order. By the current motion, the father sought custody of the twin, Jamie.

The principal point of the father's appeal contends that the trial judge erred in failing to modify the custody provision with respect to Jamie in that (1) the court erroneously found no change in circumstances to have been proved, and (2) the court erroneously rejected and gave no weight to the testimony of Jamie regarding her preference as to custody.

Modification of a prior decree of custody depends, in the first instance, on proof of facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, showing that a change has occurred in the circumstances of the child or his custodian and that modification is necessary to serve the best interests of the child. Section 452.410, RSMo 1986; Brand v. Brand, 534 S.W.2d 628, 632 (Mo.App.1976). Whether such facts are proved involves deference to the trial court under the familiar proposition that the trial court's decision must be affirmed unless there is no substantial evidence to support it, it erroneously declares or applies the law or it is against the weight of the evidence. As to the latter condition, the appellate court should reverse the judgment only upon a firm belief that the decree or judgment is wrong. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); In re Marriage of R.R. and R.R., 575 S.W.2d 766, 768 (Mo.App.1978).

In the subject case, the evidence tendered to prove changed circumstances since entry of the decree awarding Jamie's custody was essentially undisputed. We therefore refrain from restating all of the supporting facts and, in the interests of curtailing the length of this opinion, recount only a summary of the considerable evidence produced.

Following entry of the dissolution decree, each of the parties remarried, the husband to Doris and the wife to Tom Gentry. A child was born to the husband and Doris in 1986. Visitation between Jamie and the husband, both scheduled and unscheduled was a source of irritation and controversy which became progressively more exacerbated commencing in 1986. The wife expressed it as her view that Jamie should have no contact at all with her father.

Jamie was active in attempting to maintain contact and a relationship with her father and this was a source of friction in the Gentry household. On occasion, when the husband was scheduled for a period of visitation, the wife would take Jamie and John and leave her house to frustrate the visitation. Conversations between the Gentrys in Jamie's presence were derogatory and critical of the husband. Frequently, when Jamie was having a telephone conversation with her father or her brother Jim, the wife would monitor the call by listening on an extension or would force Jamie to terminate the call. The wife also kept a log of such calls noting who called and when. The wife and Tom expressed their bitterness and animosity toward the husband and degraded him in Jamie's presence.

Over the months in 1986 and 1987, the relationship between Jamie and her mother continued to deteriorate. Jamie did not develop any close association or affection for her stepfather and, because of his use of force to restrain Jamie from her attempts to be with her father and brother, she came to fear him. Jamie stayed in her room most of the time and other witnesses testified that Jamie acted "cold" toward her mother and stepfather. A psychologist, who testified on behalf of the mother, stated that if other arrangements for custody of Jamie were not made, her reactive response could range from anger or a mild transient depression to suicide.

In contrast to the relationship between Jamie and her mother, the child's affection for her father and for her twin brother has remained strong despite the enforced separation and the continual criticism by the mother. Jamie also expressed a fondness for her stepmother, Doris, who she said was like a "best friend," and for the new baby in that household.

After four days of testimony appearing in more than five hundred pages of transcript, the general tenor of which is summarized above, the trial court ruled that the father had produced no evidence to show the mother unsuitable to have custody of Jamie and also ruled that the evidence failed to prove a change in circumstances dictating a change in custody. No mention was made of any findings as to the best interests of Jamie, but the court did note that it was giving no weight to the testimony of Jamie on the subject. These findings were erroneous as contrary to the overwhelming weight of the evidence and incorrect as a matter of law.

From the details of the evidence already recounted in this opinion, it is readily apparent that Jamie's relationship with her mother and stepfather was shown to have steadily worsened. Irrespective of whether the court believed the evidence of the mother or of the father as to the source of problems associated with visitation schedules, it was not disputed that Jamie evidenced a coldness toward her mother, a fear of her stepfather, ¹ and a determination not to live in the Gentry household. This estrangement between Jamie and her mother, in direct consequence of the hostility by the mother toward the father, was a gradual development which occurred subsequent to the previous custody order and was a change in circumstances to be taken into account in determining what custody arrangements would be in Jamie's best interest. This circumstance where the relationship between the child and the custodial parent has deteriorated and where, as here, the child has left the custodial home on her own accord, is sufficient to support a finding that modification of the decree should be ordered. Morrison v. Morrison, 676 S.W.2d 279, 281 (Mo.App.1984); Dutton v Dutton, 668 S.W.2d 585, 589 (Mo.App.1984).

The evidence, including the mother and stepfather's own testimony, indicated that they held the father in low regard, degraded him in Jamie's presence, depicted him as an evil person with whom Jamie should have no contact and engaged in persistent efforts to destroy Jamie's natural affection for her father. The mother expressed it as her preference that Jamie have nothing to do with her father, a directive which Jamie continually resisted. This state of facts showing an attempt by one parent to alienate a child from the other parent is a changed condition and can form the basis for a modification of custody, Eatherton v. Eatherton, 725 S.W.2d 125, 128 (Mo.App.1987). When a parent who has custody makes disrespectful and abusive statements against the other parent and attempts to wean the children away, the decree can properly be modified and the custody changed. Garrett v. Garrett, 464 S.W.2d 740, 743 (Mo.App.1971).

All of the facts described above, the deteriorating relationship between Jamie and her mother, the efforts by the mother to sever connections between Jamie and her father and to portray the father as an undesirable individual and Jamie's own determination not to continue living in her mother's home undeniably establish that conditions at the date the motion was heard had changed from those which prevailed some four years earlier. The trial court erred when it ruled to the contrary.

On this record, the only question for judicial decision was whether the best interests of Jamie would be served under the changed conditions by continuing the prior custody in the mother or granting the change of custody to the father. There was no issue in the case, as the trial court apparently perceived it, as to whether the mother had been proved an unsuitable person to have custody. The ultimate and sole test is what will be in the best interests of the child. Knoblauch v. Jones, 613 S.W.2d 161, 165 (Mo.App.1981).

Factors to be considered in determining the best interests of the child include (1) the wishes of the parents; (2) the wishes of the child; (3) the interaction of the child with his parents, siblings and other persons who may significantly affect the child; (4) the child's adjustment to home, school and community; (5) the mental and physical health of those involved, and (6) the needs of...