L.J.B. v. L.W.B., 65395
| Decision Date | 13 February 1996 |
| Docket Number | No. 65395,65395 |
| Citation | 921 S.W.2d 23 |
| Parties | L.J.B., Petitioner-Appellant, v. L.W.B., Respondent/Respondent. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis, Thomas J. Frawley.
John Pleban & George A. Kiser, Greenburg, Pleban & Fleming, St. Louis, for Appellant.
Lawrence G. Gillespie, Eisen, Gillespie, & Hilton, Webster Groves, Stuart Howard Goldenberg, St. Louis, for Respondent.
Husband, L.J.B., appeals from the decree of dissolution of his marriage to wife, L.W.B. 1 We affirm.
Review of this case is governed by the principles of the oft-cited Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). At the trial of this case, there was sharply conflicting evidence which the trial court was called upon to resolve. The credibility of the parties was a key issue. On appeal, we do not retry the case, rather we accept as true the evidence and reasonable inferences therefrom in the light most favorable to the prevailing party and disregard contradictory evidence. Riaz v. Riaz, 789 S.W.2d 224, 225 (Mo.App.1990). We recognize the superior position of the trial court to judge factors such as credibility, sincerity, character of the witnesses, and other intangibles that are not revealed in a trial transcript. Id. Within the guidelines of these fundamental precepts, we now review the record in this case.
Over the objection of husband's counsel, the trial court limited the trial to three days or 17 hours of testimony in September 1992. The court strictly enforced the time limitations and restricted the cross-examination and recross-examination of witnesses.
The evidence adduced established that husband and wife were married in November 1983. Two daughters were born of the marriage: C.E.B. in October 1985 and R.D.B. in May 1987. The parties separated in April 1990.
Husband had bachelor's and master's degrees and was employed as a research scientist, earning about $3,600.00 per month. He had additional income of about $7,000.00 annually from a part-time teaching position at a local university. His monthly expenses, including the child support paid pursuant to the pendente lite order, amounted to $2,515.00. Wife had a bachelor's degree and worked as a public health nurse. Her monthly earnings were approximately $2,050.00. The monthly expenses for herself and the children totalled $3,051.00.
From the spring of 1988 until the fall of 1990, wife was employed at a family care center in the City of St. Louis, working with abused women. Wife became friendly with one of her patients, D.B. She engaged in extended telephone conversations with D.B. after work hours. Frequently, D.B. stayed overnight with wife at the marital home in O'Fallon, Missouri, and wife spent the night at D.B.'s house in the City of St. Louis.
In April 1990, wife moved out of the marital home and moved into D.B.'s residence. At that time, D.B. had custody of three of her six children. As a result of D.B.'s pleading guilty to three counts of endangering the welfare of a child, three other of her children had been placed in foster care.
In November 1991, wife and the children moved out of D.B.'s residence to a town in Illinois. Wife, however, maintained contact with D.B. after the move; and D.B. moved to a town in Illinois which was approximately a twenty minute drive from wife's residence. Although wife denied the allegations, husband contended that wife and D.B. were engaged in a sexual relationship. Husband sought custody of the children.
Wife alleged that husband had sexually abused the children and also sought custody. The children underwent physical and psychological examinations. The physical examinations revealed no evidence of sexual abuse. Taped interviews with the children were admitted into evidence and the trial court interviewed the children in camera. Numerous medical and mental health professionals testified at trial with regard to the abuse allegations as well as about the fitness of wife and husband as parents. There was disagreement among the experts about whether abuse had occurred and about whether father was the perpetrator of abuse. Husband denied sexually abusing the children and claimed that wife coached the children with regard to the abuse allegations.
The trial court issued its decree of dissolution in December 1993. The court divided the marital property as follows: husband was awarded inter alia the marital residence, furniture, a credit union account, and five shares of common stock; wife was awarded inter alia furniture, a bank account, her pension plan, and a portion of husband's pension plan. The court entered an order for child support. The court also ordered husband to pay wife's attorney's fees in the amount of $7,500.00 and to pay the guardian ad litem $1,350.00. Wife was ordered to pay the guardian ad litem $750.00.
In the December 1993 decree, the court found that wife had not coached the children regarding the sexual abuse allegations and determined that husband had sexually abused the children. The court found that it was in the best interests of the children that neither husband nor wife be awarded legal custody and awarded reasonable temporary physical custody to wife and supervised visitation to husband. The court expressed concern about wife's judgment and about "whether she has placed her needs before the needs of the minor children," citing her relationship with D.B. as an example. In the court's opinion, the children should have no contact with D.B. The court also found that wife and D.B. were engaged in a sexual relationship; and that the relationship negatively impacted the children, primarily because it exposed the children to D.B. whom the court characterized as "an inappropriate role model" for the children.
The court further ordered "any individual or entity, other than [husband] and [wife], who wished to request legal custody and/or primary physical custody of the minor children" to file a motion to intervene and petition for custody of the children within 14 days of the order. On December 21, 1993, husband's mother and father filed a motion to intervene.
On that same day, wife filed a motion for new trial or, in the alternative, a motion to amend the judgment. Wife requested that the court revisit the issue of custody, because of changed circumstances since the September 1992 trial. The guardian ad litem also filed a motion for new trial for the purpose of taking additional testimony on the issues of child custody and her fees. Husband consented to the motions to the extent that they sought a new trial on the issue of custody. The court granted an evidentiary hearing limited to evidence of wife's actions since the original trial with regard to her fitness to have custody of the children. The court reserved judgment on the motion to intervene.
The intervenors then filed an application for change of judge. Husband filed a motion for continuance and a motion for psychological examination of him, wife, and the children. The court denied these motions.
An evidentiary hearing was held on February 14, 1994. After the hearing, the court issued its amended findings and order of dissolution. Finding that D.B. was no longer an influence on wife, the court awarded primary physical and legal custody of both children to wife and ordered supervised visitation with husband for one to two hours per week. The court ordered husband to pay an additional $4,000.00 and wife to pay an additional $2,400.00 in guardian ad litem fees; and entered an order for child support.
In his first point, husband contends the court erred in awarding custody of the children to wife and in granting him only supervised visitation.
There is no absolute rule to follow when determining what the outcome of a custody case should be; each case must be examined in light of its unique set of facts. Replogle v. Replogle, 903 S.W.2d 551, 554 (Mo.App.W.D.1995). The trial court has broad discretion in making provision for child custody and we will not interfere with the trial court's decree unless the welfare of the children compels such interference. Id. A determination of child custody is given greater deference than that given the trial court in any other type of case. Id.
The question of child custody is guided by § 452.375.2, RSMo (1994), which requires the court to determine custody "in accordance with the best interests of the child." Here, in its amended findings and decree of dissolution, the court found that it was in the best interests of the children to award legal custody to wife. The court stated:
Wife has demonstrated, during the marriage, during the separation and since the initial evidentiary hearing, an ability to care for the physical needs of the minor children and, if [D.B.] is no longer an influence on...
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