Jones v. Jones, 20884

Decision Date12 December 1996
Docket NumberNo. 20884,20884
Citation937 S.W.2d 352
PartiesCarol Jeanne JONES, Appellant, v. David Allen JONES, Respondent.
CourtMissouri Court of Appeals

Laurette Tedders, Urbani, Marshall & Tedders, P.C., Roseville, MI, for appellant.

Walter E. Williams, Joplin, for respondent.

PARRISH, Judge.

Carol Jeanne Jones (Mother) appeals an order modifying custody of her son, Clinton Joseph Colter Jones (Colter). The trial court transferred custody of Colter to David Allen Jones (Father). This court affirms.

Mother and Father's marriage was dissolved November 7, 1991. The parties had two children, Zachariah Hunter Jones (Zach), born September 18, 1977, and Colter, born February 16, 1990. Mother and Father were awarded joint legal custody of the children. Mother was awarded primary physical custody. Husband was granted specified "[m]inimum visitation rights." The original decree was modified in March 1993 with respect to the older child, Zach. Physical custody of Zach was awarded to Father.

Father sought a second modification of the custody order in December 1994. He filed a motion to modify the dissolution decree in which he alleged change of circumstances with respect to Mother's residence and Colter's environment. Father alleged Mother was not providing adequate care and supervision for Colter. He sought custody of Colter.

After holding an evidentiary hearing, the trial court modified the dissolution decree. The trial court found that Zach was emancipated. It awarded custody and control of Colter to Father. Mother was granted "reasonable visitation" with Colter including specified periods of visitation.

The trial court's "Judgment Order of Modification" includes findings with respect to the award of custody to Father. It determined that Colter was five years old at the time of the hearing. The findings include:

The Court finds that the mother has had this five year old son in her custody and who was in her home while she entertained men to whom she was not married. That the mother and her men friends shared the same bed while the five year old boy was present in her home, and that she also took the five year old boy with her while she engaged in the same activity in their place of abode. This appears to be a pattern of the mother's activity. Further many of the men with which the mother was consorting had extensive criminal records.

The parties [sic] oldest son, now emancipated, testified that one of the mother's men friends attempted to get him to make a fraudulent application for a credit card. The mother took the five year old son to visit one of her men friends while he was in jail. The mother testified that her latest man friend was sentenced in United States District Court in Springfield, Missouri on the day before the last hearing on this case to a term of six years.

This court's review of child custody orders is undertaken in accordance with Rule 73.01(c). The judgment of the trial court will be affirmed unless it is unsupported by substantial evidence or is against the weight of the evidence, or unless it erroneously declares or applies the law. Boschert v. Boschert, 793 S.W.2d 495, 496-97 (Mo.App.1990). The power to set aside a judgment as against the weight of the evidence is exercised with caution and only when an appellate court is possessed with a firm belief that the judgment is wrong. Id. at 497.

In reviewing a child custody order, this court presumes the trial court reviewed all the evidence and awarded custody in the manner it believed would be in the best interests of the child. Id. "This presumption is based upon the trial court's better position to judge not only the credibility of the witnesses and parties directly but also their sincerity, character, and other trial intangibles which might not be completely revealed by the record." Hartig v. Hartig, 738 S.W.2d 160, 161 (Mo.App.1987).

Mother's first allegation of trial court error is directed to the trial court's finding that a change had occurred in her circumstances as Colter's custodian. See § 452.410.1, RSMo 1994. She contends the finding of changed circumstances was based on "the Noncustodial's [sic] Parent's alleged changed circumstances and based upon the Custodial Parent's alleged association with AfricanAmerican [sic] men and/or men with 'extensive criminal histories'." She alleges (a) "[t]he Trial Court improperly used the Mother's alleged Association with 'Black' Men to Support a finding that a Modification in Custody was Necessary, violating the Mother's state and federal constitutional rights"; and (b) "[t]he trial Court violated the mother's federal and state constitutional rights by removing the minor child from her physical custody because the mother alleged [sic] was associating with 'black' men."

Testimony at the evidentiary hearing was that Mother had three men living with her in her home at different times. All were identified as black men and all had criminal records. On cross-examination, Father admitted having made racist remarks concerning the men who had been living with his former wife. He stated he made the remarks in anger and apologized for them.

References to men who had lived in Mother's home were made in closing arguments. Mother's attorney told the trial court, "This is a case about race." He argued, "This whole thing has been black, black, black. This man is a racist." In rebuttal, Father's attorney told the trial court Father's concern wasn't that his former wife dated black men, but that she dated men with felony convictions.

The trial court addressed the allegations of the parties in its modification order. Before making findings concerning custody, the trial court stated:

The father in his motion and during the testimony charges that the mother has had associations with many men who have lived with her from time to time with the young son living in the home. Further the allegations and testimony shows [sic] that some of the men had extensive criminal records and that many of the men are black men. Both the Petitioner and Respondent are white. The testimony of the father was that most of the men that the mother was associating with were black. The mother presented testimony that the father had made racist statements, and mother's attorney accused him of being a racist, and calling the mother's men friends by racial slurs. This Court believes that such conduct and speech is improper, unseemly, and has no place in Court in determining where a child of tender years should reside. The Court will therefore decide this case as if race was not a factor, and that all the parties were of the same race.

Mother relies on two cases for her claim that the trial court improperly used her association with "black men" to support a finding of change of circumstances that required a change of custody; Johnston v. Johnston, 573 S.W.2d 406 (Mo.App.1978), and Cantrell v. Adams, 714 S.W.2d 211 (Mo.App.1986). She cites them for the proposition that a criminal conviction of a parent or of a step-parent cannot be a basis for rewarding or punishing a custodian in a child custody proceeding. She correctly states, "Clearly, if a trial court cannot punish a mother [or a step-parent] for their own criminal conviction as held in Johnston and Cantrell, the trial court in the present case may not punish mother Carol Jeanne for her alleged friendships with AfricanAmerican [sic] men or other individuals who allegedly had been convicted of a crime."

Johnston was a proceeding in which a father, Roger Johnston, sought to modify a custody award. His former wife, Emma Johnston, had custody of the child of the parties by reason of the custody award in a decree in a dissolution of marriage proceeding. Roger sought custody after Emma was convicted of delivery of a controlled substance, a felony. After an evidentiary hearing, the trial court that heard the motion to modify stated that modification was granted to award Roger custody "[i]n view of the crime (of, sic) which Mrs. Johnston was convicted, ... and also the uncertainty as to the child's future because of [Emma's] five years on probation." 573 S.W.2d at 409.

The court determined that the trial court had not permitted a record to be made of all proceedings, as requested by Emma; that it was necessary to reverse the order changing custody and to remand the matter for a new trial. In discussing the lack of record concerning the child's well-being the court stated, "The law is clear that custody proceedings may not be used to reward or punish a parent." Id. at 412. The court concluded that the trial court's action in denying Emma's request for a record to be made in certain parts of the proceeding and its denial of visitation rights for her demonstrated a punitive pattern.

In Cantrell, a father, William Cantrell, appealed the denial of his motion to modify a custody award. At the time of the hearing, Cantrell's former wife, Juanita Adams, was married to a man who had spent 32 days in jail and possibly had a drinking problem before the marriage. After William Cantrell and Juanita Adams were divorced and before she married Mr. Adams, Juanita had lived with men to whom she was not married. She had most recently lived with the man to whom she was married at the time of the hearing. The court, in affirming the trial court's denial of the motion to modify, found that Cantrell had failed to examine Mr. Adams' jail time in the course of the hearing and that there was no evidence he was an alcoholic. The court concluded that there had not been a showing that he was an unfit step-parent.

Although the principles for which Mother cites Johnston and Cantrell are apropos to this appeal, the record in this appeal is significantly different from the facts in those cases. Here there is a complete record of the hearing before the trial court, and...

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