Johnson v. Johnson, 36167

Decision Date27 May 1975
Docket NumberNo. 36167,36167
Citation526 S.W.2d 33
PartiesGloria V. JOHNSON, Petitioner, Appellant, v. Andrew JOHNSON, Jr., Respondent. . Louis District, Division One
CourtMissouri Court of Appeals

Morris B. Kessler, Louis Gilden, St. Louis, for petitioner, appellant.

Ira M. Young, St. Louis, for respondent.

DOWD, Judge.

Action for dissolution of marriage and for custody of two minor children. Gloria Johnson, the appellant herein, appeals from that portion of the trial court's order which awards respondent the care and custody of the minor children of the marriage. Appellant contends that the trial court erred in (1) failing to consider the statutory guidelines in determining child custody; (2) failing to call as a witness the investigator who prepared the child custody report or to use the evidence produced by that report; and (3) the court abused its discretion in awarding custody to respondent. No challenge is made to the court's order dissolving the marriage.

Appellant's first point is that the court erred in failing to consider all the relevant statutory guidelines in determining the custody of the two minor children herein. The relevant statutory guidelines are found in § 452.375 RSMo 1973 Supp., V.A.M.S.:

'Factors to be used in determining custody of child

The court shall determine custody in accordance with the best interests of the child. The court shall consider all relevant factors including:

(1) The wishes of the child's parents as to his custody;

(2) The wishes of a child as to his custodian;

(3) The interaction and interrelationship of the child with his parents, his siblings, and any other person who may significantly affect the child's best interests;

(4) The child's adjustment to his home, school, and community; and

(5) The mental and physical health of all individuals involved.'

Appellant asserts that there is no evidence in the record that the court considered these factors in making its decision. To the contrary, we believe the record demonstrates substantial consideration by the court of the above factors. The first factor is the wishes of the parents as to the custody of the children. There was testimony by each of the parents relative to this factor. Their wishes as to custody were obvious. Secondly, while the court failed to consider the wishes of the children here, we do not find this failure to be error. Appellant contends it was error for the court not to interview the children as to their wishes. The children were six and four years old at the time of trial. No error can be predicated upon the trial court's failure to interview children of such tender years. See Hild v. Hild, 221 Md. 349, 157 A.2d 442 (1960), where it was held a child of seven years was too young to have a rational preference. This principle is especially applicable in this case because by appellant's own testimony, the children were confused and unsure about what was going on between the parents. It would serve no good purpose to interview these children under these circumstances.

The third criteria is the interaction of the child with those persons who may significantly affect the child's best interests. Appellant argues the court did not have before it any evidence on this point. Again to the contrary, testimony was given by respondent's mother who supervises the children when respondent is at work. Testimony was also given regarding the woman who watches the children on those few occasions when respondent's mother is unable to do so. Respondent testified to his good relationship with the children, and this was confirmed by respondent's mother. We cannot say, based on this testimony, that the trial court did not consider the third guideline set out above.

The fourth criteria is the child's adjustment to his home, school and community. Testimony was given regarding the satisfactory relationship between the children and their teachers. 1 There was also testimony that respondent has had custody of the children during these proceedings and that the children were doing well in their current environment. This testimony was sufficient to show that the court considered the fourth criteria above. As to the fifth factor, that of the health of all the individuals involved, we are convinced that there was sufficient evidence in the record as to the health of all the parties, as well as the health of the children. 2

Appellant's next point relied on is that the court abused its discretion in not calling the investigator who prepared the child custody report or the witnesses the investigator interviewed in making the report. The pertinent statute is § 452.390 RSMo 1973 Supp., V.A.M.S., which provides in part that the court 'may order an investigation and report concerning custodial arrangements for the child.' Also, the statute provides that any 'party to the proceeding may call as witnesses the investigator and any person whom the investigator has consulted.'

Appellant does not explain why she did not call the investigator or anyone involved in the investigator's report. Instead, appellant argues that the report must have contained material pertinent to the issue of child custody, material which the trial court must consider. Appellant does not indicate what additional information the investigator would have furnished had she been called. Appellant merely presents this court with the bare allegation that 'the court, by the terms of the statute describing what such a report would contain, had knowledge that the report would be replete with material pertinent (to the award or custody).'

We find appellant's interpretation of the statute to be incorrect. Appellant's argument can be distilled to one sentence: once an investigation is ordered, it is an abuse of discretion for the court not to call the investigator and make use of the report. This construction clearly distorts the introductory sentence 'The court may order an investigation and report.' (Emphasis added). We do not interpret the statute to require the trial judge to make use of the report and call additional witnesses merely because he has elected to order such a report. This construction would ignore instances in which a report is merely duplicative of the evidence given at the hearing. Surely no one would argue that the statute requires the court to call the investigator when that testimony would be repetitious of the evidence already before the court. We simply hold that, absent more than just appellant's bare allegation that the investigator's report...

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