Marriage of Cook, In re, s. 36477
| Court | Court of Appeal of Missouri (US) |
| Citation | 532 S.W.2d 833 |
| Docket Number | 36675,Nos. 36477,s. 36477 |
| Parties | In re MARRIAGE OF Judy Lee COOK, Petitioner (Appellant), and Jerry Blanton Cook, Respondent (Respondent). . Louis District, Division Three |
| Decision Date | 16 December 1975 |
Page 833
and
Jerry Blanton Cook, Respondent (Respondent).
Rehearing Denied Jan. 23, 1976.
Page 835
Fred Roth, Clayton, for petitioner-appellant.
Love & Lacks, Chester, A. Love, Thomas K. Edelmann, St. Louis, for respondent.
McMILLIAN, Judge.
This appeal is taken from an order of the Circuit Court on a Motion to Modify a Divorce Decree. The parties were divorced on February 28, 1972 and Petitioner Judy Lee Cook was awarded custody of the couple's two children, Gina, now age 5, and Jerry, now age 9. Respondent Jerry Blanton Cook was ordered to pay $25 per week as support for each child and $1 per year alimony.
On February 20, 1974, petitioner brought an action against respondent to increase the child support and maintenance payments and to be awarded suit money and attorney's fees. Respondent filed a cross motion on April 10, 1974, seeking custody of the two children. After a hearing on the motions, the trial court granted respondent's motion for change of custody and terminated the child support payments. Petitioner was denied an increase in maintenance, suit money and attorney's fees. The court assessed costs against respondent.
Thereafter, on August 30, 1974, petitioner filed a motion for attorney's fees and costs on appeal. The court sustained the motion in part by ordering respondent to pay for the cost of the transcript on appeal but deferred the awarding of attorney's fees and cost of printing a brief pending the determination of the appeal.
In the present action petitioner appeals from the determination made by the trial court. She alleges that the evidence presented to the trial court was insufficient to award custody of the children to respondent, that their custody should be returned to her, that the court should have granted her motion to increase child support and alimony payments, and the court should have awarded her suit money and attorney's fees. For the reasons stated below, we reverse the order to transfer child custody to respondent, affirm the denial of an increase in child support and maintenance, and remand to the trial court the determination of whether to grant petitioner's motion for suit money and attorney's fees.
Our scope of review on appeal from this non-jury case is set out in Rule 73.01(3), V.A.M.R., which provides that '(t)he court shall review the case upon both the law and the evidence as in suits of an equitable nature. Due regard shall be given to the opportunity of the trial court to have judged the credibility of witnesses.' We have a duty to reach our own conclusions based on the law and evidence, In re The Marriage of Zigler, 529 S.W.2d 909 (Mo.App., St. Louis 1975); Powers v. Powers, 527 S.W.2d 949 (Mo.App., St. Louis 1975) but should give due deference to the trial court's judgment unless it is clearly erroneous. R.L.S. v. J.E.S., 522 S.W.2d 5 (Mo.App.1975).
The new Missouri Dissolution of Marriage Statute 1 is applicable here as the proceeding for modification was commenced after January 1, 1974. Section 452.415(3). The statute provides that:
'The court shall not modify a prior custody decree unless it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child.' (Section 452.410) 2
In his pleadings, respondent alleged that the petitioner had failed to exercise
Page 836
proper care and supervision and had left the children in the care of others for protracted periods of time and that since the decree of divorce the aforesaid children had developed severe emotional problems. He further alleges that he has remarried and is now capable of providing the children with a wholesome and adequate home environment. These alleged changes in circumstances were not sufficiently proven at the hearing to warrant a change in custody.The evidence set forth demonstrates that petitioner has provided the children with adequate care. The children were given frequent medical and dental examinations. The daughter's corrective shoes and the son's eye glasses were regularly adjusted, and the son was being treated by a psychologist. No evidence indicated that proper care was lacking.
Nor was it established that petitioner left the children for such protracted periods of time as to warrant a change of custody. The record reveals that petitioner had a steady 'baby sitter' stay with the children while she was at work. When she took an occasional short vacation, she left the children in the care of others. The one time she was gone for more than a week she left the children with their father. For a few months Gina stayed...
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Korn v. Korn, 10771
...S.W.2d 949, 952 (Mo.App.1975). The respondent urged at trial that he had remarried (such alone is not sufficient In re Marriage of Cook, 532 S.W.2d 833, 836 (Mo.App.1976) and was able to provide Travis with a stable home life. These changes in His circumstances may be considered even though......
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...to stigmatize a mother as an unfit custodian. The relevance of such activity is its effect if any upon the child. In re Marriage of Cook, 532 S.W.2d 833, 837(9) (Mo.App.1975); McClarnon v. McClarnon, 528 S.W.2d 795, 796(2) (Mo.App.1975); Klaus v. Klaus, 509 S.W.2d 479, 481(9) (Mo.App.1974).......
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...stigmatize a mother an unfit custodian, as the principal relevancy of such activity is its effect upon the child. In re Marriage of Cook, 532 S.W.2d 833, 837(9) (Mo.App.1975); Klaus v. Klaus, 509 S.W.2d 479, 481(9) (Mo.App.1974). What we may not condone is exposing the children to adulterou......
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