Marriage of B------ A------ S------, In re, 37127

• Decision Date: 21 September 1976
• Docket Number: No. 37127,37127
• Parties: In re the MARRIAGE OF B_ _ A_ _ S_ _, Petitioner-Appellant, and G_ _ R_ _ S_ _, Respondent. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 762

541 S.W.2d 762

In re the MARRIAGE OF B_ _ A_ _ S_ _, Petitioner-Appellant and G_ _ R_ _ S_ _, Respondent.

No. 37127.

Missouri Court of Appeals, St. Louis District, Division Three.

Sept. 21, 1976.

Ellsworth Cundiff, St. Charles, for petitioner-appellant.

Charles P. Todt, Clayton, for respondent.

RENDLEN, Judge.

This appeal is from the custody award of three minor children incident to a judgment dissolving the parties' marriage and from denial of appellant's claim for attorney's fees.

Appellant contends that young children, especially girls, are best placed with the mother, that the custody award was not to the best interests of the children and was against the greater weight of the evidence. Section 452.375 RSMo 1969, Laws 1973 (effective January 1, 1974) presents a nonexclusive mandatory list of relevant factors for the court's consideration in custody cases. It is argued the trial court failed to properly weigh these factors particularly the wishes of the children, the interaction and interrelationship of the children with their parents and the children's adjustment to their home, school and community.

We review the case on the law and the evidence under Rule 73.01 giving due regard to the trial court's opportunity to adjudge the witness' credibility and aware that the judgment may not be set aside unless it is against the weight of the evidence, wrongly declares or applies the law, knowing that our power to set aside a decree as against the weight of the evidence must be exercised with caution and on 'a firm belief that the decree or judgment is wrong.' Murphy v. Carron, 536 S.W.2d 30, 32(2) (Mo. banc 1976). It is clear from the record both parents manifest a deep interest in the welfare of their children and each express an earnest desire to serve as custodian.

The parties, married in 1961, have three children, a daughter C_ _ 12, and two sons, B_ _ 11 and E_ _ 8. We find no indication of marital strife prior to 1970 when they purchased a home in St. Peters, Missouri. Personal discord soon surfaced, followed by marriage counselling, reconciliation efforts and finally a March 1973 agreement to separate in June at the end of the school term.

Appellant, by prearrangement, moved the children and some furniture to St. Charles. Some quarreling occurred concerning temporary custodial arrangements; but the children, living principally with their mother through the summer of 1973, stayed five nights and two days each week with their father, under a plan designed to accommodate the parents' working hours. After September the children remained in the general custody of their mother, staying Tuesday through Thursday nights with her and three weekends per month with the father until the divorce in May 1975.

For eight months following the separation the husband, though requested, provided little or no support for appellant or the children, while with her stating: 'He didn't see any reason why he should.' In April 1974 he was ordered to pay child support of $60 per week ¹ but from time to time arbitrarily deducted amounts from the weekly payments for items such as car insurance premiums for the automobile in appellant's possession and the cost of shoes or similar purchases for the children.

In February of 1974 appellant moved to a more suitable apartment less than one-half mile from her place of employment.

While at work, appellant could conveniently communicate with the children by phone and sometime before the divorce changed her hours to 6:30 a.m. through 2:30 p.m. permitting her to be with the children on return from school. The respondent-husband points out she could not be with the children at breakfast but the evidence shows breakfast for the children was arranged each morning before she left, the children's clothes laid out and plans made for the day. Further, as the mother explained, the money she received was insufficient to adequately care for the children and she needed to work. It seems unbecoming to fault appellant for this effort; and if the father feels strongly she should not work, which requires her to be away during the children's breakfast time, this could be readily remedied by increased support payments. As the husband also works, neither can legitimately argue the other's disqualification as custodian because of their respective employment.

The living accommodations of each are suitable for the children; and while the jointly-owned home in St. Peters occupied by the husband is more commodious than appellant's apartment, the court has ordered the home 'divided equally between the parties,' presenting a problem for his custodial claim.

Appellant permits the children to have friends in the home for meals and overnight stays. Appellant entered both sons in little league baseball and attended most if not all of their games. She also enrolled the younger son in cub scouts, bought his uniform and furnished the monthly dues.

The children keep numerous animals and the only difficulty in this area developed when, without consulting the mother, the father delivered a rabbit that was unsuitable as a pet. A more serious problem occurred when the father, aware of the children's love for their pets, attempted to poison their minds against their mother, saying if the children lived with her they would not be permitted to have animals and she will marry somebody who is 'real bad.'

Witnesses for appellant included the fifth grade teachers who testified that B_ _ was punctual, as clean and neat as other children, participated well in activities, was well-disciplined, courteous and respectful and although at the beginning was not working up to his grade level, improved after appellant's conference with the teachers. Neither of these teachers and ever seen the child's father.

E_ _'s third grade teacher described his manner of dress and personal appearance as much like other children in the class, and though he had been below his grade level in some areas, several months after the conference with his mother E_ _ also improved academically. Further, he was not a discipline problem, treated the teachers with respect and was apparently a very normal child.

An employee of the Howard Johnson Restaurant had seen the children on numerous occasions and stated they appeared normal, clean and neat. Having observed the children with their mother, the witness testified: 'She disciplined them but never mistreated' them.

The minister of the Calvary Evangelical Methodist Church of St. Charles where appellant had attended for a year confirmed that the children attended Sunday school and church regularly when with the mother and she attended regularly at other times. He also testified the mother and the three children were clean and neat in their appearance. This testimony concerning the children's appearance and conditions in appellant's home were generally corroborated by the father's witness, Mr. Darrill Beebe, a social worker for the St. Charles County Family Services.

Though the husband charged the children were dirty and their clothes torn when they came to him on weekends, this evidence came exclusively from him and his mother who admitted attempts to persuade the children to choose her son, the respondent-husband as custodian. Respondent and his mother produced a number of articles of dirty and torn clothing claiming they were those of the children but appellant stated she had not seen most of the items and the clothing she provided the children was usually kept at her home and that provided by the father at his.

During the trial, in March 1975, the parties agreed the court should examine the 12 year old daughter and the 11 year old son. The 8 year old child did not appear in the chambers. The testimony of that examination is most revealing and important to our decision.

TRIAL COURT'S INTERVIEW OF THE CHILDREN

The 12 year old daughter explained she was doing better in school as time went on and described living conditions at the home. She stated a part of her job was to take the clothes to the laundromat, fold them and bring them home where her mother usually ironed them.

She testified her brothers played outside a good deal and would get dirty and this was true whether at her mother's or father's home. The clothes the children wore at the mother's or father's house were the same or similar.

She also described matters of grave concern to this court. The father-respondent has repeatedly attempted to poison the minds of the children against the mother. The following responses to the court's non-leading questions tell us much about the parties:

Q. 'Has anyone tried to influence you as to whose custody you should be in?'

A. 'Yes.'

Q. 'Who has done that?'

A. 'My father.'

Q. 'What has he done in that respect?'

A. 'He tells us that my mom is no good and if we live with her I won't have any animals and she will marry somebody real bad and they will beat us and everything and stuff like that.'

Q. 'How often does he do this?'

A. 'Mostly every weekend when we come out there.'

Q. 'What are your feelings toward your father and your mother?'

A. 'Well, I like them both and everything. It's just I get sick of hearing my dad talk about my mom, criticizing her and stuff and I don't like it.'

Q. 'Does your mother or anyone in the household than your mother say anything critical of your father?'

A. 'Never. Sometimes, you know, say something like tell her that he called her a name or something and she will say, 'I don't want you talking about your father like that.' She won't let me talk about it.' (Emphasis ours.)

The child stated that she would prefer to stay with per mother and felt that spending three weekends a month with the father was too much as she would prefer to spend more free time with the mother.

The court then asked her if she had seen anything improper at the mother's or father's home to which she answered that at the father's home the grandmother 'has taken over the place of a mother and I...