J--- F. R--- v. R--- R---, 34313
| Decision Date | 20 June 1972 |
| Docket Number | No. 34313,34313 |
| Parties | J___ F. R.___, Plaintiff-Respondent, v. R___ R___, Defendant-Appellant. . Louis District, Division One |
| Court | Missouri Court of Appeals |
Wion, Burke & Boll, Clayton, for plaintiff-respondent.
Charles M. Warner, St. Louis, for defendant-appellant.
Three months after the plaintiff-mother was granted a divorce and custody of the parties' two children the defendant-father moved to modify the decree as to child custody. The gist of the motion is that after the divorce his wife demonstrated maternal unfitness by attempting suicide and by intimately associating with another man. The father appeals from the denial of his motion.
In deciding the fitness issue we review the entire record de novo and decide the case on its merits, according to the best interest of the children, giving deference to the trial court where credibility of witnesses arises. Rutstein v. Rutstein, Mo.App., 324 S.W.2d 760(1); Rule 73.01(d), V.A.M.R. The facts, as we find them to be, follow.
The father is a physician in his 40's, the mother is 12 years younger, and they have a son ten and a daughter six. The divorce was granted in August, 1970. The mother remained in the family home with the children and the father took up residence at the hospital where he practiced. He was given liberal temporary custody rights and exercised them fully. If granted custody the father would acquire a home and his cousin and her son would live there.
A few days after the divorce the mother became ill and the father moved back into the family home, staying for a month. During this time the mother met a young unmarried man, D___ D___, who was ten years her junior. A week or so later she and he drove to California and were constant companions for ten days. The children remained at home with their father and the family's domestic servant. For the next several months the mother continued her association with D___ D___, who sometimes stayed overnight in the home when the children were with their father.
In mid-November 1970 the mother gave a birthday party for D___ D___ and his friends and she became intoxicated. She had been ill and despondent and after the guests had left she cut both wrists with a knife. The wounds were superficial and the attending physician termed the incident a 'suicidal gesture.'
Three days after this incident the father filed his motion to modify. The first of three partial hearings was in January 1971. At the conclusion of this hearing the judge cautioned both parties about misconduct affecting the children and warned that could result in denying child custody to either parent. This warning seems to have had a profound effect on the mother. She virtually ceased her association with D___ D___ and stopped his overnight visits. The mother readily acknowledged the impropriety of her past association with D___ D___ and the 'suicidal gesture.' At the second and third partial hearings the mother was apologetic and contrite over her past misconduct and convinced the trial court that since his admonition she had 'put the children's interests first.'
Numerous lay and professional witnesses testified about the parties' respective parental fitness. Both are intelligent and considerate parents, loved by the children. The father is strict and protective of his role as head of the family. In times past his actions toward his wife were violent. His own...
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