Marriage of Bennett, In re, 20572

• Decision Date: 28 February 1997
• Docket Number: No. 20572,20572
• Citation: 938 S.W.2d 952
• Parties: In re the Marriage of Robert Murray BENNETT and Marie Jerline Bennett. Robert Murray BENNETT, Petitioner-Respondent, v. Marie Jerline BENNETT, Respondent-Appellant.
• Court: Missouri Court of Appeals

Page 952

938 S.W.2d 952

In re the Marriage of Robert Murray BENNETT and Marie

Jerline Bennett.

Robert Murray BENNETT, Petitioner-Respondent, v. Marie Jerline BENNETT, Respondent-Appellant.

No. 20572.

Missouri Court of Appeals,

Southern District,

Division One.

Feb. 28, 1997.

Ralph W. Muxlow, II, Richland, for respondent-appellant.

James D. Sickal, Waynesville, for petitioner-respondent.

GARRISON, Judge.

In this dissolution of marriage action, Marie Bennett (Mother) appeals from a decree that awarded primary custody of their only child (Jonathan) to Robert Bennett (Father), and ordered her to pay child support of $500 per month. We affirm.

The applicable standard of review in a court-tried case requires that the judgment be affirmed if it is supported by substantial evidence, it is not against the weight of the evidence, and it neither erroneously declares nor applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). In reviewing the record on appeal, "[w]e accept as true the evidence and inferences therefrom that are favorable to the trial court's decree and we disregard all contrary evidence." Chapman v. Chapman, 871 S.W.2d 123, 124 (Mo.App. E.D.1994). Viewed in that light, the pertinent facts in this case are as follows:

Mother and Father were both on active duty in the military at Fort Leonard Wood, Missouri, when they were married on March 11, 1989. Four months after their marriage, Mother was assigned to Honduras for six months, and Father remained at Fort Leonard Wood and cared for Mother's children from two earlier marriages (Daniel, born November 14, 1973, and Travis, born January 29, 1979). ¹

After discussions in February, 1991, the parties decided that Father would accept an optional one-year tour of duty in Korea. In preparation for that assignment, he was transferred to Fort Benning, Georgia, in May, 1991, and left for Korea in August. Father remained in Korea until November, 1991 when he submitted his resignation from the service and was shipped to Hawaii to be "processed" out. While in Hawaii, Father was notified that Jonathan had been born on November 28, 1991, nine weeks prematurely.

Father eventually received a "compassionate reassignment" to Fort Leonard Wood in the middle of January, 1992 so he could be with his family while he was being processed out of the army. Jonathan was released from the hospital at the end of January, and in March, Mother returned to work. Father, who took advantage of leave he had accumulated while on active duty, was then able to stay at home with Jonathan.

Mother volunteered for a one-year unaccompanied tour of duty in Korea. ² In preparation for that tour, she left for Fort Benjamin Harrison in July, 1992, and left for Korea in August. Father remained in Missouri, caring for Travis and Jonathan, who was then eight months old.

During her one-year tour, Mother came home once, in February, 1993, on a fifteen-day leave. In August, 1993, she finished her tour in Korea and returned home, informing Father that she had volunteered for a three- Father filed this dissolution action in Pulaski County in February, 1994, requesting that the court award him primary physical custody of Jonathan. In April, 1994, Father and Jonathan moved to Florida. According to Father, Mother suggested such a move prior to her departure so that he and Jonathan would be closer to his family who resided there.

year tour in Japan. During their discussions, Father indicated that he did not want to move to Japan. Mother said that she had anticipated that decision, and told Father that in fact she did not want him to move to Japan, preferring instead that they spend time apart. Mother left for Japan on September 1, 1993, about fifteen days after returning from Korea, and again left Jonathan with Father. ³

Mother did not receive an anticipated promotion, and she voluntarily separated from the military in July, 1994. When she returned to the United States, she filed an answer and counterclaim in which she also sought a dissolution of their marriage and primary physical custody of Jonathan. She also accepted a six-month contract to work for General Dynamics in Troy, Michigan.

Following trial of the case on December 5 and 6, 1994, the court dissolved the marriage but took all other issues under advisement. On January 3, 1995, Mother filed a motion to reopen the evidence or, in the alternative, a motion to modify the judgment pursuant to Supreme Court Rule 75.01. The motion was noticed up for hearing on January 12, at which time the trial court overruled the motion to reopen the evidence. According to Mother's brief, the trial court did not rule on the motion to modify the judgment because a judgment had not yet been entered.

On September 6, 1995, the trial court advised the attorneys of its preliminary findings and entered its formal judgment on September 15, 1995. ⁴ On October 3, 1995, Mother filed an amended motion pursuant to Rule 75.01 requesting the trial court to modify its judgment. On October 6, 1995, the trial court, over Father's objections, heard Mother's amended motion and amended the judgment to show Missouri as Mother's residence, but otherwise denied it. Mother appeals the trial court's amended judgment.

POINT I

In her first point on appeal, Mother contends that the trial court erred in awarding primary physical custody of Jonathan to Father. She argues that the judgment was contrary to the greater weight of the evidence, contrary to the child's best interests, and constituted an abuse of discretion.

In reviewing an award of custody, we are mindful that "an appellate court will not disturb a trial court's custody award unless it is manifestly erroneous and the welfare of the child requires some disposition other than that made by the trial court." In re Marriage of V --A --E --, 873 S.W.2d 262, 266 (Mo.App. S.D.1994). It is presumed the trial court awarded custody in accordance with the child's best interests, because of the trial court's superior position in judging credibility of the witnesses, along with their character, sincerity, and other intangibles which might not be completely revealed by the record. Sinopole v. Sinopole, 871 S.W.2d 46, 48 (Mo.App. E.D.1993). We are mindful that in reaching its decision the trial court is free to believe or disbelieve all, part or none of the testimony of any witness. In re Marriage of Campbell, 868 S.W.2d 148, 150 (Mo.App. S.D.1993). Therefore, we afford greater deference to the trial court's decision in child custody determinations than in other cases. Cornell v. Cornell, 809 S.W.2d 869, 873 (Mo.App. S.D.1991). We should exercise the power to set aside a child custody decree on the ground that it is against the weight of Section 452.375.2, RSMo 1994, mandates that custody decisions be made in accordance with the best interests of the child. The legislature has established eight factors which must be considered in determining the child's best interests. Hamilton v. Hamilton, 886 S.W.2d 711, 714 (Mo.App. W.D.1994). The eight factors of § 452.375.2 include the following:

the evidence with caution and with the firm belief that the decree or judgment is wrong. In re Marriage of Campbell, 868 S.W.2d at 153.

(1) The wishes of the child's parents as to his custody;

(2) The wishes of a 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, including any history of abuse of any individuals involved; ...

(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;

(7) The intention of either parent to relocate his residence outside the state; and

(8) Which parent is more likely to allow the child frequent and meaningful contact with the other parent.

As to factor (1), both Mother and Father clearly expressed their desire to have primary physical custody of Jonathan. Factor (2) was not relevant because Jonathan was only three years old at the time of trial. As to factor (3), there was evidence that Jonathan appeared more comfortable with Father than with Mother, and that a close bond had been established between Jonathan and Father. Due to Jonathan's age, factor (4) is not relevant here. As to factor (5), the evidence showed that Father had been hospitalized in 1991 for what was described as major depression, but there was no evidence that he had any continuing problems of that nature, or that any physical or mental condition of Father had any adverse impact on Jonathan. As to factor (6), Father showed an "ability and willingness ... to actively perform" his function as father for the needs of the child by acting as Jonathan's primary, if not sole, caretaker since he was six months old. As to factor (7), the trial court found that "there is no evidence to indicate [Father's] move to Florida with the child was for the purpose of denying [Mother] visitation and contact with the child, nor has it had that effect. The Court finds that the move to Florida was for the purpose of finding full time employment to enable [Father] to provide for the child's support." Finally, as to factor (8), both parents expressed a desire for the other parent to have frequent and meaningful contact with Jonathan.

"[T]his court is presented with the review of a case involving that most difficult question--which of two competing parents should have custody of children. It is axiomatic to say the question must be answered not on the basis of a reward to or punishment of either parent. The ultimate and sole test is what will be in the best interests of the children." Knoblauch v. Jones, 613 S.W.2d 161, 165 (Mo.App. S.D.1981) (citations...