Goldberg v. Goldberg, 48134

• Decision Date: 29 March 1985
• Docket Number: No. 48134,48134
• Citation: 691 S.W.2d 312
• Parties: In re the Marriage of Jane E. GOLDBERG, Petitioner, v. Milton H. GOLDBERG, Respondent.
• Court: Missouri Court of Appeals

Page 312

691 S.W.2d 312

In re the Marriage of Jane E. GOLDBERG, Petitioner, v. Milton H. GOLDBERG, Respondent.

No. 48134.

Missouri Court of Appeals,

Eastern District,

Division Two.

March 29, 1985.

Motion for Rehearing and/or Transfer to

Supreme Court Denied

May 17, 1985.

Carroll J. Donohue, Mark G. Zellmer, Husch, Eppenberger, Donohue, Elson & Cornfeld, St. Louis, Mo., for petitioner.

Theodore S. Schechter, Frances M. Luehrman, Schechter & Watkins, Clayton, Mo., for respondent.

PER CURIAM.

Wife appeals from a decree dissolving her marriage to husband and awarding them joint custody of their two minor children pursuant to § 452.375 RSMo Supp.1983. ¹ The statute, enacted and effective after the dissolution proceeding was pending, specifically provided for joint custody, unlike its predecessor, § 452.375 RSMo Supp.1982. We affirm.

On appeal, wife raises four points alleging trial court error: (1) in awarding joint custody under § 452.375 RSMo Supp.1983 rather than primary custody under the former law because the new statute did not become effective until after the case was under submission; (2) in awarding joint custody without prior agreement or approval of both parties; (3) in requiring the parties to submit disagreements to a mediator; and (4) in failing to award child support. The record on appeal contains only the legal file per stipulation of the parties.

Wife's first point contends the trial court had authority to award only primary custody of the parties' two minor children under § 452.375 RSMo Supp.1982, and not joint custody under the 1983 amendment. By consent of the parties, the dissolution proceeding was referred to a Master on December 30, 1982. In April 1983, the hearing of the cause before the Master was concluded and submitted to him. In June 1983, the Missouri legislature amended § 452.375.3 RSMo Supp.1982. The amendment provided:

As between the parents of a child, no preference may be given to either parent in the awarding of custody for the sole reason that the parent is the mother or the father of the child, nor because of the age or sex of the child. The court may award joint custody or sole custody to either parent, or, when the court finds that each parent is unfit or unable, and that it is in the best interest of the child, then to a third party. (Emphasis added.)

The amendment became effective on September 28, 1983. Several months later on November 9, 1983, the Master's findings of fact and opinion were filed with the trial court. On the same day, in accordance with the Master's findings and opinion, the trial court entered its decree of dissolution awarding the parties joint custody of their minor children.

The decree awarded joint custody to both husband and wife, with wife to have physical custody of the children from one week before the start of the school year until the last day of the children's spring vacation. Husband was given physical custody for the remainder of the year. The parent not having physical custody had alternating weekends with the children. Provision was made for holidays, birthdays, telephone calls and decision-making.

Wife argues that the 1983 amendment changed the substantive law and that, since substantive law changes have only prospective application, the 1983 amendment was erroneously applied. As a general rule, statutes operate prospectively. Department of Social Services v. Villa Capri Homes, Inc., 684 S.W.2d 327 (Mo. banc 1985); Lincoln Credit Co. v. Peach, 636 S.W.2d 31, 34 (Mo. banc 1982). Article I, § 13 of the Missouri Constitution generally prohibits retroactive application of enacted laws. There are, however, two recognized exceptions to the rule that a statute shall not be applied retrospectively: (1) where the legislature manifests a clear intent that it do so, and (2) where the statute is procedural only and does not affect any substantive right of the parties. State ex rel. Lawyers Title Insurance Corp. v. Elrod, 636 S.W.2d 396, 398 (Mo.App.1982). The language of the 1983 amendment does not reflect a clear intent that it be applied retrospectively. Thus, the issue is whether the statutory change is procedural only and does not affect any substantive right of the parties.

The 1983 amendment, while providing for joint custody, does not mandate joint custody but expands the trial court's alternatives in providing for the best interest and welfare of the children. Under the old statute, either parent could have been awarded primary custody and the other parent, temporary custody of similar duration as the time awarded jointly to each of them here. Likewise, the responsibilities concerning schools, finances, and medical attention could have just as easily been decreed in the same fashion under the old statute as here. Whether the judge was acting under the 1982 statute which did not expressly provide for joint custody or under the amended statute which does, the paramount consideration remains the best interest and welfare of the child.

The legislature's express intent is that the best interest of the child controls the exercise of judicial discretion. Neither parent is vested with a superior right to the custody of the minor children. Parental rights are secondary in the determination of what will best serve the welfare of the children which is always the primary concern. Garrett v. Garrett, 464 S.W.2d 740, 743 (Mo.App.1971). The method implementing this objective, by an award of either sole or joint custody to the parents, reflects a procedural change by the legislature and not a substantive change.

Further, the decree was entered sometime after the 1983 amendment became effective. The case was pleaded and tried with joint custody as an option. The pleadings in the record clearly reflect that husband had requested sole or joint custody in his amended answer. Wife filed no motion to strike husband's pleadings. Thus, the issue of joint custody was raised by the pleadings. The Master's opinion reflects that wife expressed her desire for sole custody; husband, for joint, and, absent that, primary custody. The two children indicated their desire to spend an equal amount of time with both parents. An expert witness testified joint custody, with the assistance of a mediator, was the preferable arrangement. Although the case was heard and submitted to the Master prior to the effective date of the 1983 amendment, the judgment of the trial court was rendered sometime after the amendment's effective date. We know of no public policy offended by application of the new statute. We do not see that the evidence adduced under these circumstances would vary, regardless of whether a parent sought primary or joint custody, where, as here, the issue of custody was contested and painstakingly litigated. Based on the evidence adduced, no unfairness to either party accrues from application of the new law to the circumstances of this case. It is presumed that the trial court studied the evidence thoroughly and ordered that which was in the best interest of the child. Kline v. Kline, 686 S.W.2d 13 (Mo.App.W.D.1984); Fastnacht v. Fastnacht, 616 S.W.2d 98, 100 (Mo.App.1981). We find the trial court possessed the jurisdiction to award joint custody and find no abuse of its discretion in so doing.

Wife's second point alleges the trial court's award of joint custody was erroneous...