Marriage of Chilton, In re, 10486

Decision Date18 January 1979
Docket NumberNo. 10486,10486
Citation576 S.W.2d 584
PartiesIn re the MARRIAGE OF James Cecil CHILTON and Kathy Lorine Chilton. Kathy L. Chilton, Appellant, and James C. Chilton, Respondent.
CourtMissouri Court of Appeals

Donald E. Lamb, Centerville, for appellant.

David G. Neal, Eminence, for respondent.

BILLINGS, Judge.

This appeal arises from the decree entered in a dissolution of marriage proceeding. Appellant-wife seeks reversal of the award of custody of the minor son to respondent-husband, and contends the court erred in the division of the parties' property and denying her attorney fees and costs to prosecute this appeal.

We first consider the custody award. The parties were married September 1, 1971, when James was 31 and Kathy was 17. Their only child was born in 1972 and at time of trial was nearly four years of age. The decree awarded James primary custody, with Kathy having custody every other weekend.

Kathy contends that because she is the mother of the child and because of his age, she is the preferred custodian under the law. We are cited to cases which recognize there is a presumption that the mother of a child of tender years is the preferred custodian, all things being equal. James, on the other hand, asserts that the record does not support a showing of abuse of discretion by the trial judge and that his determination of custody should not be lightly overturned.

We have read the transcript and are convinced the experienced trial judge who presided considered the guidelines for the award of custody contained in § 452.375, RSMo 1969, as well as the presumption mentioned above. Consequently, we will defer to the trial court's determination of this difficult and soul-searching matter unless we are firmly convinced that the welfare of the child requires some other disposition. C""" v. B""", 358 S.W.2d 454 (Mo.App.1962). Here, we conclude the trial judge "was in a better position not only to judge the Credibility of the witnesses and the persons directly but also their Sincerity and Character and other trial intangibles which may not be completely revealed by the record." E""" (S""") v. E""", 507 S.W.2d 681 (Mo.App.1974). (Emphasis theirs).

In a similar situation, the St. Louis District of this court said in Johnson v. Johnson, 526 S.W.2d 33 (Mo.App.1975):

"We agree that such a presumption (in favor of the mother) exists, but we do not find it to be conclusive. Each case must be decided on its own facts. In Brand v. Brand, 441 S.W.2d 750 (Mo.App.1969), there...

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28 cases
  • Korn v. Korn, 10771
    • United States
    • Missouri Court of Appeals
    • June 29, 1979
    ... Page 179 ... 584 S.W.2d 179 ... In Re the Marriage of Sharon K. KORN, Appellant, ... Michael B. KORN, Defendant ... No. 10771 ... Missouri ... 's favor make our decision "difficult and soul-searching," as in our In re Marriage of Chilton, 576 S.W.2d 584, 585 (Mo.App.1979). Our review, including a consideration of the extent to which ... ...
  • Marriage of Myers, In re, 17810
    • United States
    • Missouri Court of Appeals
    • December 10, 1992
    ...of the parties, their sincerity, character and other trial intangibles which may not be shown by the record. In re Marriage of Chilton, 576 S.W.2d 584, 585 (Mo.App.1979). The trial judge, as the trier of fact, can disbelieve testimony even when uncontradicted. Robinson v. Estate of Robinson......
  • Marriage of Gardner, In re, 19091
    • United States
    • Missouri Court of Appeals
    • November 8, 1994
    ... ... character and other trial intangibles which may not be shown by the record. In re Marriage of Chilton, 576 S.W.2d 584, 585 (Mo.App.1979). The trial judge, as the trier of fact, can disbelieve testimony even when uncontradicted. Robinson v. Estate of ... ...
  • Marriage of Lewis, In re
    • United States
    • Missouri Court of Appeals
    • April 2, 1991
    ... ... In re Marriage of Chilton, 576 S.W.2d 584, 585 (Mo.App.1979). The trial judge, as the trier of fact, can disbelieve testimony even when uncontradicted. Robinson v. Estate of ... ...
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