Lacadin v. Herron, 67861

• Decision Date: 23 April 1996
• Docket Number: No. 67861,67861
• Citation: 920 S.W.2d 196
• Parties: Roberto LACADIN, Appellant, v. Dyandra HERRON, Respondent.
• Court: Missouri Court of Appeals

Page 196

920 S.W.2d 196

Roberto LACADIN, Appellant, v. Dyandra HERRON, Respondent.

No. 67861.

Missouri Court of Appeals,

Eastern District,

Division One.

April 23, 1996.

Appeal from the Circuit Court of the City of St. Louis; Hon. Thomas J. Frawley, Judge.

Thomas E. Bauer, St. Louis, for Appellant.

Thomas H. Ullmann, Weldon Spring, for Respondent.

KAROHL, Judge.

Roberto Lacadin, (Father) appeals custody provisions in dissolution of marriage decree. The trial court found it was in the best interests of the parties' two children that it award legal and physical custody of the children to Dyandra Herron, (Mother). He contends the award to Mother will result in a separation of the children where there was no evidence to support a finding of exceptional circumstances which warrant such separation. See, Vaught v. Vaught, 755 S.W.2d 375 (Mo.App.1988). Additionally, Father argues the trial court erred in awarding Mother custody because there was evidence she had exhibited extreme lack of good judgment in the past, while there was no question as to his qualifications as primary custodian. Lastly, in the alternative, Father disputes the trial court's custody award because it was against the weight of the evidence. We affirm.

The evidence in support of the custody order is as follows. Roberto Lacadin and Dyandra Herron married in November of 1990. They had two children, Roberto, Jr. and Christina, who are now ages 6 and 5 respectively. In 1992, a third child was born during the marriage. The court found "There are two (2) minor children born of the marriage," Roberto Jr. and Christina. The couple separated in January of 1993.

On February 10, 1995 the trial court entered a decree which awarded legal and primary physical custody of both children to Mother. It awarded father temporary physical custody at all reasonable times or during designated times if the parties were unable to agree on what constituted "reasonable" times.

Father relies on three points, all of which dispute the award of custody to Mother. He first argues the trial court's custody award will cause a separation of the children without the required finding that exceptional circumstances existed for the separation. He contends Mother's lifestyle will impermissibly separate the children. She did not deny that she once separated the children. In the spring of 1992, before Father filed for dissolution in April of 1993, she left the state with her daughter and without her son. However, she stated she left with her daughter and not her son because he was not home at that time. Later, Father and his family denied her access to her son. On the evidence, it is speculative to conclude she would choose to separate her children.

Father's fear is not substantiated and will not support a conclusion Mother will separate the children. We afford trial courts greater discretion in determining child custody than in other matters. Flieg v. Flieg, 884 S.W.2d 347, 348 (Mo.App.E.D.1994). While a court will not separate children unless exceptional circumstances exist which warrant the separation, Vaught v. Vaught, 755 S.W.2d 375 (Mo.App.1988); In re the Marriage of Newberry, 745 S.W.2d 796 (Mo.App.1988), a trial court is presumed to have considered all of the evidence and awarded custody in the best interest of the children. In re Marriage of Stuart, 805 S.W.2d 309, 313 (Mo.App.1991). The trial court was not obligated to conclude Mother's conduct before the dissolution proceeding would continue if granted custody.

Second, Father disputes the award of custody to Mother because he argues the evidence demonstrates an extreme lack of judgment on the part of Mother in caring for the children. He relies on Rodenberg v. Rodenberg, 767 S.W.2d 594 (Mo.App.1989). In Rodenberg, the mother had drug and alcohol problems. She allowed male friends to spend the night...