Marriage of Dempster, In re

• Decision Date: 20 May 1991
• Docket Number: No. 17101,17101
• Citation: Marriage of Dempster, In re, 809 S.W.2d 450 (Mo. App. 1991)
• Parties: In re the MARRIAGE OF Daniel R. DEMPSTER and Dianne L. Dempster. Daniel R. DEMPSTER, Appellant, v. Dianne L. DEMPSTER, Respondent.
• Court: Missouri Court of Appeals

Page 450

809 S.W.2d 450

In re the MARRIAGE OF Daniel R. DEMPSTER and Dianne L. Dempster Daniel R. DEMPSTER, Appellant, v. Dianne L. DEMPSTER, Respondent.

No. 17101.

Missouri Court of Appeals,

Southern District,

Division One.

May 20, 1991.

Janet K. Brown, Poplar Bluff, for appellant.

Robert L. Smith, Kennedy & Kennedy, Poplar Bluff, for respondent.

PER CURIAM.

Daniel R. Dempster ("Daniel") appeals from a decree dissolving his marriage to Dianne L. Dempster ("Dianne"). He claims the trial court erred in (a) awarding the parties joint legal and physical custody of the two youngest children of the marriage, and (b) awarding Dianne the marital real estate.

The parties married each other November 6, 1971. The union produced three daughters: Stacey, born April 10, 1972; Marla, born September 16, 1980; and Codi, born March 19, 1985.

The parties separated in October, 1989. Before the breakup, they were residing in a mobile home on a 16.5-acre tract they own in Wayne County. ¹ Dianne ² was teaching at Greenville Junior High School. Daniel was employed as a "community support worker" at the Piedmont office of Southeast Missouri Ozark Mental Health Center. Stacey was a senior at Greenville High School. Marla was a fourth-grader at Greenville. ³

Five or six weeks before the separation, Robert Smith, a former classmate of Dianne whom she had not seen "in twenty some years," returned to Greenville for his stepmother's funeral. Dianne saw Smith at a "reunion." Two days later Smith went back to his residence in California. Dianne began telephoning him. Smith returned to Missouri the "first week in October [1989]."

There was a conflict in the evidence regarding the date and circumstances of the separation. Daniel and Stacey testified Dianne loaded some of her belongings in her automobile and moved out of the marital residence October 3.

Dianne testified the separation occurred Friday, October 6, after she arrived home from school. According to Dianne, she was preparing to attend a retirement dinner for a teacher at Poplar Bluff. Daniel asked to accompany her. She refused his request, whereupon he accused her of "going to meet another man." Then, said Dianne, "[Daniel] shoved me out of the trailer and told me that he would beat my face if I ever came back." Dianne's testimony continued:

"Q. Where did you spend the evening of October 6th then?

A. At Puxico, Missouri.

Q. With whom?

A. With Robert Smith.

Q. And October 7th, where did you spend that?

A. With Robert Smith at Puxico."

Daniel recounted he spent October 7 looking for Dianne, going twice to the home of Smith's father and also checking motels. He took all three children with him on the search.

Dianne testified Daniel "packed all my stuff and dumped it in [my mother's] garage" October 8. ⁴

Before the separation the parties had agreed to buy a "double wide trailer home" to replace the mobile home in which they had lived seven years. ⁵ According to Daniel, the latter mobile home was to be used as part of the downpayment on the new one. Daniel explained that when "the marriage fell apart" the seller "wouldn't let us out of the deal." Realizing the seller would seize the mobile home, Daniel moved himself and the three children into a rented house in Piedmont. The parties' mobile home was seized around October 20, 1989. According to Daniel, it "was probably worth $1,500." In the aftermath of the transaction, said Daniel, "they brought charges against us." He added, "That was all settled through the attorney [who] represented us on that."

When Daniel and the children moved to Piedmont, Stacey began attending Clearwater High School there. Marla began attending Clearwater Elementary School. Codi began attending a program for four-year-olds two days a week.

Dianne moved for temporary custody and visitation rights. That motion was heard January 16, 1990. ⁶ At that time, according to Dianne, she was living with her parents. She added she had put "earnest money" down on the purchase of a house at Puxico.

Dianne told the trial court she was seeking temporary custody of only Marla and Codi. Dianne conceded Stacey "ought to be able to choose to reside with either [Dianne] or [Daniel] as she feels most comfortable."

Stacey, testifying at the temporary custody hearing, avowed she had no desire to live with Dianne or see her.

Marla, testifying in the presence of a guardian ad litem appointed for her and her sisters, ⁷ told the trial court she wanted to be with her sisters. She liked both parents and school in both Greenville and Piedmont. Marla preferred spending more time with Daniel than Dianne.

The trial court awarded Daniel primary custody of Marla and Codi pendente lite. Dianne was granted temporary custody from 5:00 p.m., Friday to 5:00 p.m., Sunday on the first and third weekends each month, and also from 6:00 p.m., to 8:00 p.m., each Wednesday. No pendente lite order was entered regarding Stacey.

At time of trial, ⁸ all three children were residing with Daniel in the rented house at Piedmont. Stacey had evidently graduated from high school, as (according to Daniel) she had received a tuition scholarship at Three Rivers Junior College for the fall semester, 1990. Daniel asked for permanent custody of Marla and Codi. He testified no custody order was needed for Stacey, as she had reached age 18 two months earlier.

Dianne was residing at Puxico in a house she intended to buy for $21,500. Dianne acknowledged Stacey's custody should be exclusively Stacey's decision. Dianne asked for primary custody of Marla and Codi.

Marla told the trial court she loved both parents but preferred living with Daniel. Regarding visitation with Dianne, Marla liked "the way we've been doing it."

Codi said little, but did indicate a preference for living with Daniel.

The custody order in the dissolution decree awarded the parties joint legal custody ⁹ and joint physical custody ¹⁰ of Marla and Codi pursuant to a "Plan of Joint Actual Custody" spelled out in the decree. § 452.375.7, RSMo Cum.Supp.1989.

The plan stated Dianne would have actual custody of Marla and Codi beginning September 1 and continuing through May 31 annually, from 6:00 p.m., Sunday through 6:00 p.m., Friday each week. During those months, Daniel would have actual custody of Marla and Codi from 6:00 p.m., Friday to 6:00 p.m., Sunday each week.

From June 1 through August 31 each year, Daniel would have actual custody of Marla and Codi from 6:00 p.m., Sunday through 6:00 p.m., Friday each week. During those months, Dianne would have actual custody of Marla and Codi from 6:00 p.m., Friday to 6:00 p.m., Sunday each week.

The plan also identified sundry holidays and provided Dianne and Daniel would have actual custody of Marla and Codi on those days on an alternating basis.

Except for ordering each party to "bear the cost and support of the minor children during that period in which the party is exercising actual custody or visitation," the decree made no provision for child support for Marla and Codi, and said nothing about custody or support for Stacey. There was, however, a provision requiring the parties to "reasonably consult and mutually agree as to matters significantly affecting the children" in the areas of education, religious training, elective surgery, orthodontics and discipline.

Daniel's first three points relied on attack the custody order. We address the points in the sequence presented.

The first point maintains the custody order is not based on substantial evidence in that "both parties demonstrated that they have no ability to deal with one another."

In support of the point, Daniel reminds us § 452.375.2, RSMo Cum.Supp.1989, states the court shall determine custody in accordance with the best interests of the child. Daniel cites Brisco v. Brisco, 713 S.W.2d 586, 590 (Mo.App.1986), where the Western District of this Court held that before a joint custody plan can be said to be in the best interests of a child, there should be some evidence in the record to support a finding that the parents are emotionally equipped to deal with each other as equal partners in the care of the child. Brisco observed it is not in the best interests of a child to allow him to become a pawn between parents who are consciously or subconsciously using the child to vent their frustrations at each other.

In the instant case each side's evidence demonstrated the marriage was turbulent. Dianne testified she had been subjected to physical abuse by Daniel since the second year of the marriage. This included "[s]lapping, punching, kicking, dragging around." According to Dianne, on one such occasion her ear bled and "there was a hole in the eardrum". She added: "I've had bloody noses, bruises on my arms and I had a black eye once. I also have an indentation in my leg where I was kicked repeatedly and nerve damage and massive scar tissue." Asked how frequently such abuse occurred, Dianne replied at least once a month early in the marriage. Later, she said, there was verbal abuse in addition to physical abuse. She avowed she fought back "[o]nly in the last three to four years."

Dianne testified the last episode of physical abuse was about a week before the separation. Dianne recounted Daniel "shoved me out of the trailer and shoved me across the yard, slapped me around and knocked me down in the grass." The fracas followed an argument about the purchase of the "double wide" trailer. A year earlier, said Dianne, she and Daniel "had an argument and he had beaten me with a belt."

Daniel admitted kicking, punching and slapping Dianne, but avowed it was self-defense. Daniel acknowledged he "started a lot of the arguments," but denied initiating the violence. According to Daniel, Dianne "would strike me, she would grab me between the legs, she'd do anything." Daniel testified Dianne "jerked" his neck in February, 1987, rupturing a disc and requiring surgery.

Daniel described himself as six feet one inch tall,...