Hack v. Hack, 49244

• Decision Date: 06 August 1985
• Docket Number: No. 49244,49244
• Citation: Hack v. Hack, 695 S.W.2d 498 (Mo. App. 1985)
• Parties: David HACK, Appellant, v. Ellen HACK, Respondent.
• Court: Missouri Court of Appeals

Page 498

695 S.W.2d 498

David HACK, Appellant, v. Ellen HACK, Respondent.

No. 49244.

Missouri Court of Appeals,

Eastern District,

Division Three.

Aug. 6, 1985.

Douglas R. Beach, Brian D. Winer, Clayton, for appellant.

William E. Albrecht, Clayton, for respondent.

DOWD, Presiding Judge.

David Hack appeals the dissolution decree which awarded primary custody of the parties' two minor children to the wife Ellen. We find substantial evidence to support the judgment and we therefore affirm.

David and Ellen Hack were married July 21, 1979. The marriage resulted in two children, Joshua, age 4, and Jeremy, age 22 months.

Shortly after the couple was married in 1979, David went on a two year tour of duty with the navy until 1981. David was required to be away aboard ship for several months at a time. During this period, Ellen had sole responsibility for care of their then only child Joshua. In January of 1982, after David had completed his tour of duty with the navy, the couple took up residence in Affton. Neither David nor Ellen maintained consistent employment from this point till the time of their separation. David worked off and on as a security guard at night. Also during the time of their residence in Affton, David attended trade school. Ellen worked approximately eight months during this period at Time Electronics as an assembler and later a shipping clerk. The job in shipping required Ellen to be on her feet the entire day and to do lifting. While Ellen worked, David took over primary responsibility for supervising their two sons.

The couple separated in April of 1983. At that time, David took the children with him when he left. Shortly thereafter by agreement of the parties, Jeremy was returned to the custody of his mother and Joshua remained with his father.

St. Louis County Circuit Court Domestic Relations Services compiled a custody report which was introduced into evidence at the trial. The report recommended that Joshua remain in the custody of David, and Jeremy with Ellen. The trial court ordered primary care, custody, and control of the parties' two children be placed in Ellen.

David Hack's only point on appeal is that the judgment was against the weight of the evidence because (1) David was the primary provider of care for the children during the later years of the marriage; (2) Ellen used marijuana; (3) Ellen physically abused the children; and (4) the Domestic Relations Services report recommended that Joshua remain in David's custody. In a court tried case, "[a]ppellate courts should exercise the power to set aside a decree or judgment on the ground that it is 'against the weight of the evidence' with caution and with a firm belief that the decree or judgment is wrong." Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

Deference should be given to a trial court's assessments of what serves the best interest of a child in custody matters and its decision in that respect should be affirmed on appeal unless it lacks substantial evidence to support it, or it is against the weight of the evidence, or erroneously declares or applies the law. R.G.T. v. Y.G.T., 543 S.W.2d 330, 331 (Mo.App.1976). The appellate court indulges the presumption that the decision of the trial court in custody proceedings was motivated by what the judge believed was best for the child. "The reviewing court grants greater deference to the lower court's determination when custody of a minor child is involved." In re Drew, 637 S.W.2d 772, 778 (Mo.App.1982).

We now turn to the facts of the instant case. Firstly, David tended the children while Ellen was working full time and he was not. However, Ellen was the sole provider of care the many months David was aboard ship during his two year tour of duty in the navy. The mere fact that the father cared for the children while the mother worked full time does not indicate that an award of custody to the mother was not in...