Marriage of Berger, In re

• Decision Date: 22 August 1997
• Docket Number: Nos. 21427,21447,s. 21427
• Citation: 950 S.W.2d 307
• Parties: In re the MARRIAGE OF Rita K. BERGER and Kent N. Berger. Rita K. BERGER, Plaintiff-Appellant, v. Kent N. BERGER, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 307

950 S.W.2d 307

In re the MARRIAGE OF Rita K. BERGER and Kent N. Berger.

Rita K. BERGER, Plaintiff-Appellant, v. Kent N. BERGER, Defendant-Respondent.

Nos. 21427, 21447.

Missouri Court of Appeals,

Southern District,

Division One.

Aug. 22, 1997.

Mark D. Calvert, Carnahan, Carnahan & Hickle, Rolla, for Plaintiff-Appellant.

Edward D. Hoertel, Hoertel & Hoertel, Rolla, for Defendant-Respondent.

GARRISON, Judge.

Rita Berger (Mother) and Kent Berger (Father) each appeal from a decree dissolving their marriage. Mother contends that the trial court erred in awarding Father primary physical custody of their two minor children. Father contends that the trial court abused its discretion in awarding Mother the marital home and 20% of his military pension. We affirm.

Father was on active duty in the military at Fort Leonard Wood, Missouri, when he married Mother on February 14, 1987. Two children were born during the marriage: Jessica, born on January 12, 1988, and James, born on September 18, 1991. The parties separated on December 15, 1993, and Mother filed a petition for dissolution of marriage on January 19, 1994. A temporary order was entered on February 25, 1994, in which primary custody of the children was granted to Mother, with Father having specified visitation rights. Father later filed an answer and counterclaim in which he sought primary physical custody of the children. He was subsequently transferred by the military to Virginia in February or March, 1995.

Mother and Father agreed about the division of the majority of their property. Two items of property on which they could not agree--the marital home and Father's military pension--are the subjects of Father's appeal. The case was heard on March 29, 1995, and August 25, 1995. The trial court, inter alia, awarded primary physical custody of the children to Father, and awarded Mother the marital residence and 20% of Father's military pension to Mother. Both parties appeal.

The trial court's judgment must 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). We view the evidence and all permissible inferences therefrom in the light most favorable to the decision of the trial court, disregarding all contrary evidence and inferences. Sinclair v. Sinclair, 837 S.W.2d 355, 357 (Mo.App. W.D.1992).

In Mother's sole point on appeal, she contends that the trial court's award of primary physical custody of the children to Father was against the weight of the evidence. In our review of Mother's claim, we are mindful that "[a]ppellate courts should exercise the power to set aside a decree or judgment on the ground that it is 'against the weight of the evidence' with caution and with a firm belief that the decree or judgment is wrong." Murphy v. Carron, 536 S.W.2d at 32.

The trial judge has broad discretion in determining the best interests of a child and great deference is granted to the lower court's decision when custody of minor children is involved. In re Marriage of Patroske, 888 S.W.2d 374, 383 (Mo.App. S.D.1994). It is presumed that the trial court awarded custody in accordance with the childrens' best interests because of its superior position to judge the credibility of witnesses, as well as their character, sincerity, and other intangibles that might not be completely revealed by the record. In re Marriage of Bennett, 938 S.W.2d 952, 954 (Mo.App. S.D.1997). 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). Greater deference is afforded to the trial court's decision in child custody determinations than in other cases. In re Marriage of Sisk, 937 S.W.2d 727, 730 (Mo.App. S.D.1996). "[A]n 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).

Section 452.375.2, RSMo 1994, ¹ directs the trial court to make its custody determination based on the best interests of the children and, in doing so, to consider "all relevant factors," including eight which are specifically enumerated. In granting primary physical custody of the children to Father, the trial court noted that it did not believe Mother was a bad parent. It was concerned, however, with Mother's judgment in several areas. There was evidence that Mother had not been cooperative with Father concerning his visitation with the children. For instance, the trial court noted that she had denied Father visitation the day before trial because she was having dresses seamed for their daughter. One of the factors specifically listed in the statute is "[w]hich parent is more likely to allow the child frequent and meaningful contact with the other parent." See § 452.375.2(8).

Mother also admitted at trial that there had been occasions when her boyfriend spent the night with her in her trailer with the children present. The trial court expressed concern not only with this arrangement, but also with the boyfriend's character, in light of the fact that he had a criminal record which included a conviction for assaulting his ex-wife. Although not specifically listed as a factor in § 452.375, "morals are a pertinent factor to be taken into account in determining whose custody will serve the best interests of the child." Hartig v. Hartig, 738 S.W.2d 160, 161 (Mo.App. E.D.1987); see also Rodenberg v. Rodenberg, 767 S.W.2d 594, 596 (Mo.App. W.D.1989). "A trial court may properly consider moral fitness in determining child custody issues. A mother's conduct of affairs with the knowledge of children and while they are present in the house has been held to be a critical factor in denying her custody. Private personal conduct by a parent which could well have an effect on children during the years in which their character, morality, virtues and values are being formed cannot be ignored or sanctioned by courts." Jones v. Jones, 937 S.W.2d 352, 356 (Mo.App. S.D.1996) (citations omitted).

The trial court was obviously concerned about the boyfriend's influence on the children. At the same time, it was "comfortable that the children in Virginia will have good schooling and have an appropriate home." We recognize that Father now resides in Virginia, and that "[t]he intention of either parent to relocate his residence outside the state" is a factor to be considered. See § 452.375.2(7). However, after a careful review of the entire record, we are not firmly convinced that the welfare of the children mandates some other custodial disposition. We are unable to conclude that the trial court abused its discretion in awarding primary physical custody of the children to Father. Mother's point is denied.

In Father's point on appeal, he alleges that the trial court abused its discretion when it awarded Mother the marital home, as well as 20% of Father's nondisability military pension. A trial court has considerable...