Marriage of Amos, In re, 17849
| Citation | 843 S.W.2d 946 |
| Decision Date | 21 December 1992 |
| Docket Number | No. 17849,17849 |
| Parties | In re the MARRIAGE OF Robbie M. AMOS and Brenda F. Amos. Robbie M. AMOS, Respondent-Appellant, v. Brenda F. (Amos) EVANS, Movant-Respondent. |
| Court | Missouri Court of Appeals |
Richard L. Schnake, Neale, Newman, Bradshaw & Freeman, Springfield, Harry Rupert Stafford, Jr., Hartville, for respondent-appellant.
J. Christopher Allen, O'Neil & Allen, Lebanon, for movant-respondent.
Robbie M. (Mike) Amos appeals from an order of the Circuit Court of Laclede County, entered September 24, 1991, modifying a decree of dissolution entered in that court on December 22, 1987. The modification was entered pursuant to a motion filed by Brenda F. (Amos) Evans on April 12, 1989. This opinion, like appellant's brief, will refer to appellant as Mike and movant-respondent as Brenda.
By the original decree, Brenda was awarded custody of the two children born to the marriage, Lauren, who was born September 18, 1982, and Cory, who was born December 31, 1984. Mike was awarded visitation rights to the children as follows: On all reasonable occasions; on Tuesday and Thursday; every other weekend; alternating holidays; and three non-consecutive two-week periods in the summer.
The instant order modified the original decree in the following respects: (a) Joint legal custody of the two minor children was awarded to Mike and Brenda, with Brenda to be the sole physical custodian; (b) Mike's visitation with the children on Tuesdays and Thursdays, which was overnight when exercised, was terminated. Other visitation rights accorded Mike by the original decree were left intact or clarified in a manner not complained of; (c) Mike's obligation to pay child support for each child was increased from $120 per month to $288.41 per month, with the increase to be retroactive to April 14, 1989, the date on which the motion to modify was served on Mike.
On this appeal Mike contends that the trial court erred in terminating his Tuesday and Thursday visitation, in increasing the amount of his support, and in making the increase retroactive.
Mike's first point is that the trial court erred in terminating his Tuesday and Thursday visitation, because the evidence does not support the trial court's finding that continuation of that visitation would impair the emotional development of the children in that Brenda's reason for termination of that visitation does not show such impairment, and her willingness to permit Mike to visit the children at other times during the week shows that no such impairment could exist.
Lauren and Cory reside with Brenda at her home in Lebanon. Mike lives on a farm approximately 15 miles south of Lebanon. Mike is an employee of the Social Security Administration, and he runs a livestock operation at the farm.
At the hearing on the motion to modify, held June 25, 1991, Brenda testified that both children attend elementary school in Lebanon. In the fall, Lauren will enter the third grade and Cory will enter the first grade. The children have activities during the week. Lauren is playing softball, and both children have swimming lessons during the day. Last year they had Spanish lessons after school. They participate in gymnastics after school. Gymnastic classes are available for the children only on Tuesdays and Thursdays. Lauren attends gymnastics class from 4 p.m. to 6 p.m., and Cory attends from 5 p.m. to 6 p.m. Last year the children participated in community theater, which involved practicing every night and which conflicted with Mike's Tuesday and Thursday visitation. During the week the children follow a set schedule, arising at 6:30 a.m. and retiring at 8:30 p.m.
Brenda testified that Mike stopped exercising his Tuesday and Thursday visitation in September 1990. Before he did that, Mike would return the children at 6:15 a.m. the next morning, often before Brenda was out of bed. Prior to September 1990, Mike did not always exercise his Tuesday and Thursday visitation, which was at his discretion. Brenda did not know until 4 p.m. or later whether he was going to pick them up. The weekday visitation was disruptive to Brenda. She was enrolled in a college class on Thursday night, and she did not know whether Mike would pick the children up or whether she would have to find a baby-sitter at the last moment.
Brenda testified that the weekday visitation was disruptive for the children when Mike did not pick them up. If Mike didn't show on Tuesday or Thursday night, they would say, "Where's Dad." "It was very unsettling for them to be told something and then it not happen." Brenda asked Mike to be consistent in exercising the Tuesday and Thursday visitation, but he failed to do so.
Brenda testified that terminating the Tuesday and Thursday visitation would allow her to monitor the children's progress in school and their homework better. Brenda did not request modification of Mike's weekend visitation or summer visitation. She testified, on cross-examination, that she had no objection to Mike seeing the children any night of the week when they didn't have something scheduled or when he could take them to a scheduled activity, so long as they were in bed by their usual time.
Mike testified that the Tuesday and Thursday visitations ceased in September 1990. He said, "I experienced all kinds of problems, all activities were scheduled on Tuesday and Thursday nights, and when there were no activities they simply weren't home." He also testified that he was able to handle the children, help them with their homework, and get them to bed on time. He said it would be a hardship for him to try to exercise his Tuesday and Thursday visitation if he had to wait until after the children's activities ended. He gets off work in Lebanon at 4 p.m. and then has regular farm chores to do. To exercise Tuesday and Thursday visitation, he would have to go home "and drive 30 miles to come back and pick them up" or wait until after they got off and then be late in getting home and doing the chores. He also testified that he thought it was important for the children to be able to take part in gymnastics during the school year.
The findings of the trial court included: The children attend elementary school and have scheduled activities on Tuesday and Thursday after school, including gymnastics, which are only available on Tuesday and Thursday after school; since September 1990, Mike has failed to exercise Tuesday and Thursday visitation;
Section 452.400, 1 as amended in 1989, reads, in pertinent part:
1. A parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger the child's physical health or impair his emotional development. The court shall define the noncustodial parent's visitation periods in detail at the request of either party.
2. The court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child, but the court shall not restrict a parent's visitation rights unless it finds that the visitation would endanger the child's physical health or impair his emotional development. When a court restricts a parent's visitation rights or when a court orders supervised visitation because of allegations of abuse, a showing of proof of treatment and rehabilitation shall be made to the court before unsupervised visitation may be ordered. "Supervised visitation", as used in this section, is visitation which takes place in the presence of a responsible adult appointed by the court for the protection of the child.
Review of the instant order is governed by Rule 73.01, as construed in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Flaton v. Flaton, 777 S.W.2d 948, 951 (Mo.App.1989); Keith v. Keith, 708 S.W.2d 350, 352 (Mo.App.1986); Gayman v. Gayman, 559 S.W.2d 617, 618 (Mo.App.1977). The trial court's judgment will be affirmed unless it is not supported by substantial evidence or is against the weight of the evidence or erroneously declares or applies the law. Murphy, 536 S.W.2d at 32.
In matters pertaining to visitation rights, this court should accord due deference to the trial court's assessment of what serves the best interests of the child. Keith, 708 S.W.2d at 352. A determination of visitation rights will not be overturned unless the appellant demonstrates that the order was not in the best interests of the child. Id. Where both parties are proper parents, each has a right to reasonable access to the children. Id. Overnight visits may be a part of reasonable visitation rights within the meaning of § 452.400, Id. at 352-353, and thus not governed by the provision of § 452.410 which requires certain proof before a prior custody decree is modified. Id. The trial court may believe all, part or none of the testimony of a witness. Id.
The best interest of the child is the principal factor. Winters v. Winters, 617 S.W.2d 585, 590-591 (Mo.App.1981); Gayman, 559 S.W.2d at 618.
Mike's first point, previously stated, challenges the finding of the trial court that Mike's Tuesday and Thursday visitation would impair the emotional development of the minor children. Mike argues that the evidence is insufficient to support that finding and that such a finding was a statutory prerequisite to withdrawal of Mike's Tuesday and Thursday visitation. For the reasons which follow, this court holds that the challenged finding was not a statutory prerequisite to withdrawal of Mike's Tuesday and Thursday visitation. Mike's argument that the challenged finding was...
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