Komosa v. Komosa, 55566
|22 August 1989
|776 S.W.2d 424
|John KOMOSA, Appellant, v. Maria Dolores KOMOSA, Respondent.
|Missouri Court of Appeals
Arthur S. Margulis, William P. Grant, Stephanie Kraus, St. Louis, for appellant.
R.G. Costantinou, Susan B. Lohse, St. Louis, for respondent.
In this dissolution action, John Komosa (hereinafter, Father) appeals the judgment of the trial court that awarded to Maria Komosa (hereinafter, Mother) primary custody of the parties' son John Ferrari Komosa III, born February 8, 1984. We affirm.
Father contends on appeal that the trial court erred in awarding custody of the minor child to Mother because (1) its judgment was unsupported by substantial evidence, was against the weight of the evidence and erroneously applied and declared the law, and (2) the trial court's findings of fact failed to support its conclusions of law.
In this court-tried case, we must affirm the judgment of the trial court unless no substantial evidence supports it, unless it is against the weight of the evidence, or unless it erroneously declares or erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Degerinis v. Degerinis, 724 S.W.2d 717, 719 (Mo.App.1987). We will set aside the judgment on the basis that it is against the weight of the evidence only with caution and with a firm belief that the decree is clearly wrong. Williams v. Williams, 753 S.W.2d 101, 102 (Mo.App.1988).
Moreover, we are cognizant that in a dissolution action, the trial judge, as arbiter of the facts, may believe or disbelieve any of the testimony, in whole or in part, including uncontradicted testimony. In re Marriage of Jackson, 592 S.W.2d 875, 877 (Mo.App.1980). In particular, issues of child custody must be decided on their specific facts, not in terms of academic rules. In re Marriage of Reid, 742 S.W.2d 248, 250 (Mo.App.1987).
With these principles in mind, we address the first point of error in which Father essentially asserts that the trial court lacked an adequate evidentiary basis for its order awarding Mother custody of their son, John. Section 452.375.2 (RSMo 1986) 1 sets forth factors the trial court shall consider in awarding custody "in accordance with the best interests of the child:"
(1) The wishes of the child's parent as to his custody;
(2) The wishes of the 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;
(5) The mental and physical health of all individuals involved; and
(6) The needs of the child for a continuing relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child.
Both parties presented evidence with respect to these factors. The trial court necessarily resolved conflicts in the evidence. We review the trial court's action to determine whether substantial evidence supports it or whether it is against the weight of the evidence.
With respect to Section 452.375.2(1), each parent petitioned the court for sole legal and physical custody of their minor son. Evidence indicated that Mother, a member of the United States Army stationed in Louisiana, sought to reunite her family by obtaining custody of John. An older child, Michael, from a previous relationship, already resided with her. Expert testimony showed that the father, believing he was the only person who could appropriately care for John, was overprotective of the child and expressed an exaggerated concern about leaving John in Mother's custody.
Because John was three and a half years old at the time of trial, he was unable to express a preference as to his custodian as contemplated by Section 452.375.2(2). Although John had resided with Father most of his life, a court-appointed psychologist Susan Randich, testified that both parents were equally bonded and attached to the child.
Pursuant to Section 452.375.2(3), the parties presented considerable evidence as to the interaction and interrelationship of the child with his parents. Although Father has been actively involved in John's life, Ms. Randich, the court-appointed psychologist, believed Father had been over-involved with the child. She also found no psychiatric reason for the Mother not to have custody. Dr. Paul Painter, a child psychiatrist, called as a witness by Father, characterized Mother as warm, responsive, sensitive to children's needs and interested in their welfare.
After his parents' separation, John was diagnosed as asthmatic. Both parents purchased, learned to operate, and taught day-care personnel to operate a nebulizer, which is a machine that disburses medication in the child's lungs. Father himself has severe asthma and, although this makes him sensitive to John's problem, it required him in one year to visit a hospital emergency room eighty-two times and rendered him comatose, requiring a two-week hospitalization.
John also suffers from numerous allergies. Father has, on occasion, failed to inform Mother of all the allergies or to provide sufficient medication and proper prescriptions when John has visited her.
Both parents provide childcare for John while they work. Father has placed John in a day-care center with approximately twenty-five other children, supervised by three adults. Mother has a baby-sitter, certified by the Army Community Center and the Red Cross, who cares for John while she works. This baby-sitter cares for her own two children and John full-time. His brother Michael and one other child stay at the baby-sitter's before and after school.
Although Father expressed a fear for John's safety when John is with his sibling Michael, Dr. Painter, who observed both Michael and John, found no basis for this fear. Michael was described as a bright, assertive child, to whom one could relate and who talked beautifully. Nor was Michael unduly aggressive or wild. Father himself admitted John was sometimes the aggressor when the siblings argued.
John's adjustment to home, school, and community, a factor set forth in Section 452.375.2(4), was also the subject of testimony. "A good environment and a stable home is generally considered as the most important single consideration in custody cases." R--- v. R---, 685 S.W.2d 598, 602 (Mo.App.1985). John presently resides with Father in a rented two-family flat in St. Louis. Although dating, Father is currently seeing no one on a regular basis. Mother plans to marry her fiancee as soon as this litigation is resolved. She is presently purchasing a mobile home in a quiet residential neighborhood with many children. In Mother's custody, John would therefore live in an environment with a mother, a father-figure and a half-brother.
Pursuant to Section 452.375.2(5), the trial court must consider the mental and physical health of all...
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