Johnson v. Johnson, WD

• Decision Date: 06 October 1992
• Docket Number: No. WD,WD
• Citation: 839 S.W.2d 714
• Parties: Roger Lee JOHNSON, Appellant, v. Diann E. JOHNSON, Respondent. 45521.
• Court: Missouri Court of Appeals

Page 714

839 S.W.2d 714

Roger Lee JOHNSON, Appellant, v. Diann E. JOHNSON, Respondent.

No. WD 45521.

Missouri Court of Appeals,

Western District.

Oct. 6, 1992.

Gary Vance Cover, Clinton, for appellant.

George R. Lilleston, Clinton, for respondent.

Before ULRICH, P.J., and SHANGLER and FENNER, JJ.

FENNER, Judge.

Roger Lee Johnson appeals a decree of dissolution which dissolved his marriage to Diann E. Johnson, challenging portions of the decree relating to child custody, child support and the division of marital property.

The parties were married on June 26, 1976, in Garnett, Kansas. Two children were born to the marriage; Alexandra, born September 21, 1984, and Reid, born March 27, 1986.

At the time of trial, Roger was employed in Clinton, Missouri, at Rival Manufacturing as a Corporate Scheduler where he had been employed during most of the marriage.

Diann was living in Garnett, Kansas, at the time of trial which was her home town and where she was employed by Wal-Mart. During the marriage she had been employed in retail sales positions and as a dental assistant. After Alexandra was born the parties decided it was best that she stay home to raise the child.

The record reflects that after the birth of the children the marriage became quite turbulent. It is unnecessary to go into great depth regarding the sordid details of the marital discord. Suffice it to say that the parties began engaging in a variety of indecorous conduct. The record reflects allegations that Roger began to physically and mentally abuse Diann. Also, the parties began to utilize pornographic materials and with Roger's approval, Diann became involved in amateur strip tease contests and engaged in extramarital sexual affairs. As a result of Roger's abusive behavior, Diann eventually left the marital home and stayed for two weeks at an abuse shelter in Warrensburg, Missouri.

The parties attempted reconciliation and sought counseling without success. In the fall of 1990, Diann and the children moved to St. Louis, Missouri. At Roger's request, Diann returned to Clinton over the Thanksgiving holiday so that Roger could visit the children. Roger refused to return the children to Diann following the visitation, filed for legal separation and obtained a temporary order giving him custody of the children. Diann then moved back to Clinton to be close to the children and filed a cross-petition for dissolution. Upon motion, Diann was awarded temporary custody of the children after which she moved to Garnett, Kansas, where she resided at the time of trial.

Following a three day trial the trial court ordered the marriage dissolved. Diann was awarded custody of the two minor children.

Roger now appeals raising six points of error. In his first point, Roger argues that the trial court erred by awarding custody of the children to Diann. He sets forth three bases upon which he relies for support. Roger first maintains that the trial court exhibited bias against him and in favor of Diann by making comments, noises and gestures during the trial.

The comments Roger refers to were made at a point in the trial when Roger's counsel was attempting to show that Diann's sexual misconduct was extensive and of her own accord. Counsel was attempting to introduce evidence regarding the volume of lingerie purchased by Diann apparently for use in her stripping activities. Counsel for Diann objected on the grounds of relevancy after which the court questioned the relevancy of naming the manufacturer of the clothing and stated:

THE COURT: What does--What does the source of her clothing tend to prove in this case? Now, before you were talking about her morality or lack of it, you're trying to prove that. That's--That's an issue. But where she gets the clothing she wears, I don't understand how that bears on any issue that pends in this case. I really don't. You've already got photographs of the types--You know, everybody knows what Frederick's of Hollywood sells, okay? I suppose.

THE COURT: No. I order things from them all the time. I like to wear them myself, you know.

Roger fails to set forth the remainder of the court's comments in this regard. The trial court continued:

THE COURT: That's untrue. Maybe we need a stretch. I don't know. I'm losing my patience, but maybe I am--Okay. What I'm trying to tell you is we're grinding exceedingly fine here. I think fine beyond what you need to.

The question posed by Roger's counsel concerning the manufacturer of the clothing was withdrawn. The trial court further stated:

THE COURT: Let me back up on something I said. I don't want to deprive a guy of the opportunity to prove his case, either side ...

The court's comments would have clearly been best left unsaid, however, any indication of bias exhibited by the court was clarified and rectified by the subsequent explanation given. The record does not show that the court exhibited prejudice toward Roger.

Roger also complains of an occasion wherein he claims the trial court made what is referred to as "raspberry sounds" to apparently show its opinion of the events and the witness' testimony and to indicate bias against him.

The context in which the complained of sounds were made occurred at the end of the day on the first day of trial. The trial court made a "raspberry sound" then proceeded to explain:

THE COURT: You see, we stay in here all day and it is kind of intense, and by about 5:30 people sum things up by saying (Raspberry sound).

It is clear from the transcript of the proceeding that the trial court was not indicating bias against Roger. Although the expression was inappropriate and invites challenge, the record reveals that the trial court was expressing a sense of tiredness at the end of a the day, not prejudice.

Roger next complains that the trial court exhibited bias against him by failing to admonish counsel for Diann when counsel cursed during the proceeding. While we do not condone such behavior by counsel, Roger fails to show how this activity could have prejudiced him and this court is not given to speculation in order to invent prejudice where none is shown.

The second basis which Roger relies on to support his argument that the trial court erred by awarding custody to Diann is that the court in its Findings of Fact adopted Diann's version of the facts as being "uncontroverted" despite a wealth of evidence which directly contradicted those facts.

Roger recognizes the standard by which this court is required to abide in this type case. That is in court tried marriage dissolution cases, the decree of the trial court will be sustained unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Mehra v. Mehra, 819 S.W.2d 351, 353 (Mo. banc 1991) (citation omitted). However, it is apparent from the lengthy recitation of the facts to support his position that Roger has lost sight of the principle that due regard is given to the trial court's determination of credibility, viewing the evidence and permissible inferences therefrom in the light most favorable to the decree, disregarding all contrary evidence and inferences. Id. The decision of the trial court will be given deference even if the evidence could support a different conclusion. Bixler v. Bixler, 810 S.W.2d 95, 99 (Mo.App.1991).

Moreover, the determination of the trial court in regard to child custody cases is granted greater deference than in other types of cases. In re Marriage of Zavadil, 806 S.W.2d 506, 509 (Mo.App.1991) (citation omitted). There is no precise formula used to determine the outcome of a custody case and each case must be examined on its own peculiar facts and circumstances. Id. While this court does have authority to reverse a custody award if it is not in the child's best interests, that authority will be exercised with caution and with a firm belief that the decree is wrong. Id.

There is little doubt after reviewing the record that neither parent exemplifies what may be described as model parent characteristics. Furthermore, the characterization of Diann's version as being uncontroverted is incorrect. As is common in many divorce cases, Diann's behavior was contested and the trial court was left in the difficult position of determining what would serve the best interests of the children. Because the trial court was in the best position to determine and resolve the factual disputes, and the record reveals nothing which indicates it reached an incorrect result, the determination to place custody of the children with Diann is affirmed.

Roger's third subsection to point one basically reiterates and lists additional testimony from various witnesses which in summary relates to Diann's immoral activities and her abrupt change in behavior, which Roger claims supports his position. In light of the previous discussion in regard to Roger's first point, it is unnecessary to restate the standards for review. Furthermore, a lengthy discussion regarding the substance of that testimony would be of no value to the parties or serve any precedential purpose of law. The record has been carefully reviewed. Both parties acted inappropriately during the course of the marriage. However, the decision of the trial court regarding custody is supported by the evidence. Point one is denied.

In his second point, Roger argues that the trial court failed to properly follow the factors for determining child custody, set forth in § 452.375, RSMo 1986, because the evidence established that five of the eight factors supported an award of child custody to him and only three favored an award to Diann.

Roger's point two is basically a reiteration of his argument set forth in point one. Once again he sets forth the evidence favorable to his position and ignores the standard of review. The reader is referred back to point one and for the reasons set forth therein point two is likewise denied.

In his third point,...