J. L. W. v. D. C. W., 35635
| Decision Date | 18 February 1975 |
| Docket Number | No. 35635,35635 |
| Citation | 519 S.W.2d 724 |
| Parties | J. L. W., n/k/a J. L. P., et al., Plaintiffs-Respondents, v. D. C. W., Defendant-Appellant. . Louis District, Division Three |
| Court | Missouri Court of Appeals |
Niedner, Moerschel, Nack & Ahlheim, St. Charles, for defendant-appellant.
Klamen, Summers & Compton, Robert F. Summers, Clayton, and Kennard L. Fenton, St. Charles, for plaintiffs-respondents.
We review the trial court's action on separate motions to modify a divorce decree. The father (appellant) and mother (respondent) filed separate motions for modification of divorce decree directed primarily to the decretal provisions relating to the custody of two children born during the marriage of the mother and father. This case represents only one of a series of such motions, and for the reasons which we shall relate, we remand the case to the trial court for further consideration.
The mother and father were divorced from each other for the second time in July, 1966. A motion to modify the divorce decree filed by the father and heard on November 11, 1967 resulted in the granting of the custody of the children to their material grandparents (also respondents) with certain visitation and temporary custody rights in the father. A second motion to modify the divorce decree filed by the father as to child custody was heard and denied on December 21, 1971. This appeal is from a third motion by the father to modify the divorce decree and is from the decree of the trial court dated August 8, 1973, which granted custody of the children to the mother in Des Moines, Iowa, subject to the supervision of the Des Moines Department of Social Services. The father was denied the right of any visitation or temporary custody of the youngest boy but was granted certain temporary visitation and custody rights as to the oldest boy.
The essence of the father's third motion to modify is that the mother, who was remarried at the time of hearing on the motion, had engaged in immoral conduct with numerous men after her divorce from the father and was, even now, living libidinously; that the children's material grandparents, in total disregard of the decree of divorce concerning custody provisions, had allowed the mother to take the children permanently to Iowa to live with her, thereby depriving the father of his visitation and temporary custody rights. The father also asserted that the children's maternal grandparents were hostile toward him and attempted to alienate the children from him; that the children's maternal grandparents were in ill health and were unable to provide the necessary attention, environment and proper living conditions for the children. The father further asserted that he was now happily married to another woman and able to provide a wholesome home for the children. Therefore, the father's plaint was that he be given custody of the children or, in the alternative, have increased visitation and custody rights.
The mother's motion to modify asserted that she had remarried, could provide the children a good home and family environment and that it was in the best interests of the children that she be given general custody of them. She also testified that she was happily married and able to care for the children; that she had cast aside any tendencies for indiscreet conduct. In her testimony, and also the maternal grandparents', it was related that the father had never shown any concern for the youngest child, and that the youngest child had resisted being with the father. The material grandparents did not oppose the mother's (their daughter's) motion to modify but did oppose the father's.
The father's evidence on the motion to modify attempted to establish the mother's propensity for licentious and libertine behavior in the presence of her children. An effort to inquire into the mother's illicit relationships with other men prior to the ruling on the last motion to modify (conduct prior to December 21, 1971) was made by the father's counsel. Objection to such interrogation was sustained. The mother did admit that she lived with her present husband for six months prior to their marriage but added that she saw no moral wrong in doing so nor was there any illicit conduct in the presence of the children. Also, in an effort to establish that the mother was immoral and unfit to have custody of the children, the father sought to present evidence through his son, who was nine and a half years old at the time of trial, that the mother cohabited with other men and was guilty of opprobrious behavior in the presence of the children. In chambers, the court conducted the following voir dire examination of the boy:
'BY THE COURT:
Q Will you state your name?
A M.D.W. (son)
Q How old are you, M_ _?
A Nine and a half.
Q And where do you live?
A In Des Moines.
Q Des Moines, Iowa? A Yes.
Q M_ _, there is a hearing taking place now in this court. Are you aware of that?
A Yes.
Q Do you know what that is about?
A Yes.
Q What is your information as to what it is about?
A Well, Dennis (father) kept wanting me and all that. So then this court got going. They were fighting over me.
Q Over your custody? A Yes.
Q Is that what you understand?
A Yes.
Q Now, M_ _, you have been called in here for the purpose of asking you certain questions concerning things that have taken place since December 22, 1971. I want you to think about this question that I am going to ask you first and then tell me what your desire is. I am going to give you the right not to testify. In other words, I am going to give you the right to refuse to testify if you do not want to testify. You may testify if you want to testify.
A I don't want to testify.
Q You don't want to testify?
A Yes.
The father's counsel objected to the court's ruling and made an offer of proof that the son would have testified that the mother had behaved in such a manner before him and his brother that she would be deemed unfit to have custody of the children.
Reports of the St. Charles County Division of Welfare and Polk County, Iowa Department of Social Services on home studies of the father, mother and maternal grandparents were introduced and received into evidence by the court without objection from either party. The social worker who had prepared the home study report for the St. Charles County Welfare Department testified with regard to his report. The report indicated that if an Iowa home study on the mother were favorable, the children should be placed in the custody of the mother with supervision maintained by the Iowa Division of Welfare. The report further reflected that in the event the Iowa study on the mother were not favorable to her that the recommendation would be that the custody of the children remain with the maternal grandparents. During examination on the report, the St. Charles County social worker testified that his reasons for recommending that the placement of the children be with the mother or maternal grandparents in preference to the father was his concern over the father's conduct in completely ignoring the youngest son. 1 However, the social worker indicated that his recommendation as to the preferential custody placement 'might change' if the St. Charles Welfare Department were given supervision and control over the children under court order. 2 The social worker had received a report of the Polk County, Iowa Department of Social Services shortly before testifying. His characterization of the Iowa report was that it was unfavorable to the mother, in that the report was incomplete. Further since the Iowa report had been received by him only a short time before the hearing, he had been unable to assimilate its contents into his own report; that further study, in his opinion, would be necessary for a complete evaluation as to the mother's fitness.
The father appealed, and we consider the following alleged points of error: 1) that the trial court should have refused to give any consideration to the St. Charles County, Missouri and Polk County, Iowa Departments of Welfare reports, as they contained irrelevant and incompetent material; 2) the trial court erroneously refused to allow background information concerning the mother's conduct since the divorce and up to the December 21, 1971 decree; 3) that the trial court's judgment was against the law and weight of evidence by reason of the mother's immoral conduct, the deprivation of the father's visitation rights and improper removal of the children to Iowa from the trial court's territorial jurisdiction against the children's welfare; 4) that the trial court did not conduct a proper voir dire examination of the nine and a half year old son to determine his competency to testify.
The father's brief contains other points relied on for which he seeks reversal of the trial court's decision. However, there are no authorities cited in their support, and such points are deemed abandoned and will not be considered. Earney v. Clay, 516 S.W.2d 59 (Mo.App.1974); Cady v. Kansas City Southern Ry. Co., 512 S.W.2d 882 (Mo.App.1974).
The first point we consider concerns the St. Charles County, Missouri and Polk County, Iowa home study reports which the father contends should not be considered, as they contain irrelevant materials. There was no objection made to the receipt of the reports into evidence. In fact, they were received in evidence pursuant to stipulation by counsel. Since the reports were received generally without limitation and without objection, the entire contents may be considered by the court. Any objection as to their receipt and use was waived. Denton Const. Co. v. Missouri State Highway Commission, 454 S.W.2d 44 (Mo.1970); Mound Rose Cornice & Sheet Metal Works, Inc. v. H. Kalicak Const. Co., 454 S.W.2d 603 (Mo.App...
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