Knoblauch v. Jones

• Decision Date: 27 February 1981
• Docket Number: No. 11508,11508
• Citation: Knoblauch v. Jones, 613 S.W.2d 161 (Mo. App. 1981)
• Parties: Larry Don KNOBLAUCH, Petitioner-Respondent, v. Beverly Jean Knoblauch JONES, Respondent-Appellant.
• Court: Missouri Court of Appeals

Page 161

613 S.W.2d 161

Larry Don KNOBLAUCH, Petitioner-Respondent, v.Beverly Jean Knoblauch JONES, Respondent-Appellant.

No. 11508.

Missouri Court of Appeals, Southern District, Division Two.

Feb. 27, 1981.

Vernie R. Crandall and Douglas K. Crandall, Crandall, Crawford & Crandall, Carthage, for respondent-appellant.

Robert P. Warden, Joplin, for petitioner-respondent.

MAUS, Chief Judge.

This is an action by the petitioner-respondent-father(respondent) to modify a decree awarding custody of two children to the respondent-appellant-mother(appellant).The respondent's amended motion alleged the prior decree should be modified because the appellant had moved to Corpus Christi, Texas, and had on numerous occasions refused to permit him to visit the children in her home in Corpus Christi.

Two children were born to the parties: Lyle David on January 13, 1968, and Adam Douglas on September 9, 1973.Their marriage was dissolved in an uncontested action on July 28, 1975, in the Circuit Court of Jasper County, which at that time was the residence of both parties.At the time of the dissolution Lyle was seven years of age and Adam was two.Custody of the two children was placed with the mother, the father to have reasonable visitation including temporary custody every other weekend, two weeks during the summer and on alternate holidays and birthdays of the children.The appellant was awarded child support in the amount of $200 per month.In this action the trial court modified the decree by removing the children from the custody of the appellant and awarding their custody to the respondent, the appellant to have reasonable visitation and temporary custody one month in the summer and on one weekend per month and on alternate birthdays and holidays.The trial court made no findings of fact and the decree declared only that the motion should be sustained.

Within a short period of time after the entry of the original decree, the appellant decided she should move to Corpus Christi to find employment and start over.She had relatives in the Corpus Christi area.She stated she had been unable to find employment in Jasper County.When the respondent learned of her decision he told her he would rather she didn't move as it would interfere with his visitation.They discussed the problem but didn't agree on any solution.She did move in August, 1975.

The appellant did find employment in Corpus Christi.She apparently returned to Jasper County from time to time to visit relatives.On many, if not all, of these occasions she delivered the children to the temporary custody of the respondent.On other occasions the respondent or someone on his behalf picked up the children in Corpus Christi.While the evidence on the subject is vague, it appears the respondent had temporary custody of the children for the following periods: during the Christmas holidays 1975; two months in the summer 1976; during the Christmas holidays 1976; not quite three months in the summer 1977.

Appellant remarried September 10, 1977.The respondent had remarried in October, 1976.Some time before the Christmas holidays 1977, the appellant told respondent that she did not want him to have custody during those holidays; relatives of her new husband were coming and she wanted the children to become acquainted with those relatives.The respondent, unannounced, went to Corpus Christi the day before Christmas.He was permitted to visit the children in appellant's home and to take them to his motel room.On this trip the respondent presented the appellant with what he termed a proposed modification providing for fixed visitation, the terms of which are not disclosed in the record.The appellant said she would let her lawyer look at it, but she did not respond to it.The respondent then in March, 1978, filed his original motion to modify.One one occasion service was attempted on appellant in Corpus Christi, but apparently no service was had until the appellant returned to Missouri for the habeas corpus action which will be hereafter discussed.

In May, 1978, the respondent called and asked the appellant if he could come to Corpus Christi and visit with the children.She told him she would rather he did not.Nevertheless, the respondent went to Corpus Christi but could not find the appellant or the children.The appellant, her husband and the children had gone camping.June 2, 1978, unannounced, he went to Corpus Christi.At about 9:00 p.m. he appeared at appellant's home and asked to visit the children.She declined as they were ready for bed, although he did visit with them through the window.He was told to come back the next day.The respondent spent the night in his camper parked across the street from the appellant's home.The next day appellant and her family went to church.They observed the respondent there, apparently watching them.Then, through subterfuge, the appellant and the children evaded the respondent.The appellant stated that she engaged in subterfuge because the manner of respondent's attempt to visit had upset the children and they did not want to see him and because of his activities she felt as if she was being chased.

In August, 1978, the appellant called the respondent and suggested the respondent get the children for a two-week visit if he would have them back before school.Respondent did get the children; but, at the end of that period refused to permit the children to return to the appellant.He explained the refusal because he wanted fixed visitation and that was the only way he was going to get them.However, appellant testified that when she asked him if "it wasn't a little bit of spite, the reason he took the children away and he said maybe it was."The respondent did not deny this statement.

On August 23, 1978, the appellant filed a habeas corpus action in Jasper County for the return of the children.Only an incomplete reference to the habeas corpus action is before this court.However, it appears the habeas corpus action was purportedly consolidated with this action and the children ordered to remain in the respondent's custody pending the final determination of his motion to modify.The basis upon which the petition in habeas corpus was denied and that action purportedly consolidated with this action does not appear in the record.

From the time the respondent took the children in August, 1978, until apparently shortly before the first hearing upon the motion to modify, the appellant was permitted to visit the children only every other weekend and only in the home of respondent and in the presence of respondent or his then wife.Respondent said he had been told by a third partythe appellant intended to take the children and go to Canada.This third party appeared as a witness and said that he had without foundation made such a suggestion to the respondent.The appellant denied any such intention.December 11, 1978, the appellant filed a motion for five-days' custody at Christmas.Again, apparently, the motion was not heard.The appellant was permitted to see the children only on the Friday before Christmas on Monday.The first hearing on the motion to modify was held March 8, 1979.Apparently after that hearing an order was entered for the appellant to have periods of temporary custody every other weekend and for one two-week period.Arrangements had been made for the appellant to have temporary custody on Mother's Day, 1979.However, the respondent told her she could not as Lyle wanted to attend his young sister's birthday party.Unfortunately a dispute followed in front of the children.Lawyers were called.The respondent denied that he had been told by the court"to do anything".However, it developed that he did call the trial judge and asked the judge to speak to Lyle.To this the judge responded, "I think I gave you a direct order that it had already been so ordered and you would comply, and I think you asked me, if my recollection serves me correctly, if I wanted to talk to Lyle and I told you there was no way I would talk to Lyle."The children then did spend the weekend with the appellant.

At the time of the final hearing on July 25, 1979, the respondent and his second wife lived in a comfortable home in a rural area near Joplin.The respondent was employed as the manager of a retail business and earned about $12,000 per year.The children attended the Seneca schools some 15 miles away.Respondent occasionally goes to church in Spring City and the children go to Sunday School one or two Sundays a month.The respondent's second wife, who was 26 years of age, is not employed.There was evidence that there was love and affection between the respondent, his wife and the children.

On the other hand, in September, 1978, the appellant and her second husband moved to Oklahoma City, Oklahoma.In December, 1978, they moved to a comfortable new house in Gutherie, Oklahoma.The second husband is employed as a salesman for a religious publishing company.He earns approximately $18,000 per year.The appellant is not employed.She and her husband are very active in their church, which is the same denomination as the church the appellant and respondent attended before their dissolution.The appellant is a vegetarian and does not believe in jewelry.These beliefs are tenets of her religion.She would encourage the children to be vegetarians.If they were in her custody the children would attend her church on a regular basis.They would attend a parochial school some 19 miles from appellant's home.When each child reaches the 10th grade, if the child so desired, he would attend a parochial academy some 200 miles away, but if the child did not so desire, he would attend the public schools.There was evidence there was love and affection between the appellant, her husband and the children.The husband expressed his love for the children and his desire to help care for them and to help provide for them financially.

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