Klaus v. Klaus, 34951
| Decision Date | 09 April 1974 |
| Docket Number | No. 34951,34951 |
| Citation | 509 S.W.2d 479 |
| Parties | Sandra Lynn KLAUS, Appellant, v. Delbert C. KLAUS, Respondent. . Louis District, Division Two |
| Court | Missouri Court of Appeals |
Cundiff & Turken, St. Charles, for appellant.
Ralph H. Schnebelen, St. Louis, for respondent.
Plaintiff-mother appeals from the trial court's judgment granting defendant-father's motion to modify a divorce decree by transferring the custody of the parties' eight year old son to the father.
The parties were divorced in September 1970, and the mother was awarded custody of the child. The father was granted and exercised frequent temporary custody and visitation rights. In June 1972, in part due to urging of the boy's maternal grandfather, defendant brought his motion to modify. Much of the testimony had little or nothing to do with questions of parental fitness and the boy's welfare. The trial court specifically attached no significance to testimony concerning 'animals, animal hairs, alleged allergies, firearms or rifles, cleanliness, or the condition of the clothes of the minor child.' We are similarly unimpressed with that testimony. The trial court also 'to a large extent, disregard(ed) the testimony of . . . the maternal grandfather.' We shall do likewise, for even from a cold transcript, his obsessive zeal to interfere in the affairs of his daughter because of his dislike for her life style is apparent.
Although we review court-tried cases de novo on both the law and the evidence, we defer to the findings of fact made by the trial court unless they are clearly erroneous. We therefore accept the trial court's finding that the home of the father and his new wife is 'better' than that of the mother. Were we dealing with an original award of custody of a child who has been living with both parents and following a divorce is to be placed with one or the other, the 'better' home would be a relevant consideration in making the placement. Where custody has once been placed the 'better' home question is of little significance. Before a change of custody is granted there must be evidence that a change of circumstances has occurred and that the child's welfare calls for a change in custody. Although 'change of circumstances' is ostensibly rooted in doctrines of res judicata, it also reflects the courts' concern that children not be moved from one environment to another upon slight changes in the status of the parents. It is only where the change of circumstances or conditions is such that the welfare of the child requires it that custody should be transferred. Irvine v. Aust, 193 S.W.2d 336 (Mo.App.1946).
We therefore treat the court's finding that the father's home is 'better' as pertinent only in determining whether that home constitutes an acceptable respository for the child and not as evidence supporting any need for change.
We turn then to the reasons given by the court for its order. Those reasons were: (1) the mother's morals, marriage and remarriage of short duration, (2) open and notorious association with a married man having a family, (3) the absence of plaintiff from her home and the minor child on numerous occasions, and (4) the total failure of plaintiff-mother to provide any moral or religious instruction for the minor child. The burden of establishing the existence of facts warranting a transfer of custody is on the party seeking such change. Dupree v. Dupree, 357 S.W.2d 241 (Mo.App.1962). The party originally awarded custody is prima facie capable of handling that responsibility. Irvine v. Aust, supra.
The mother remarried after her divorce from the defendant and, two months after the remarriage, divorced this second husband. She divorced him because of his unfatherly attitude toward her son. There is no evidence that...
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Marriage of Cook, In re, s. 36477
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J. L. W. v. D. C. W., 35635
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