Marriage of J-- H-- M--, In re, s. 37801 and 37762

• Decision Date: 19 October 1976
• Docket Number: Nos. 37801 and 37762,s. 37801 and 37762
• Citation: 544 S.W.2d 582
• Parties: In re Marriage of J_ _ H_ _ M_ _, Petitioner-Appellant, and E_ _ C_ _ M_ _, Respondent. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 582

544 S.W.2d 582

In re Marriage of J_ _ H_ _ M_ _, Petitioner-Appellant and E_ _ C_ _ M_ _, Respondent.

Nos. 37801 and 37762.

Missouri Court of Appeals, St. Louis District, Division One.

Oct. 19, 1976.

Motion for Rehearing and for Transfer to Supreme Court

Denied Dec. 20, 1976.

Dowd & Oates, Francis M. Oates, St. Louis, for petitioner-appellant.

Gunn & Gunn, Donald Gunn, Jr., St. Louis, for respondent.

RENDLEN, Judge.

This appeal is from the custody award of three minor children and denial of appellant's claim for maintenance incident to a judgment dissolving the parties' marriage. We affirm.

Considering first appellant's motion to strike respondent's brief for alleged inadequacies of the statement of fact and points relied on, we have examined respondent's brief and while it is less than model, we find it adequate and the motion is denied.

Appellant contends the custody award is erroneous because: (1) it does not serve the best interests of the children; (2) custody was awarded to the respondent-father as punishment for the appellant-mother's conduct; (3) the father is not a fit custodian; (4) custody of the oldest child to respondent is not in her best interest because though respondent is the legal parent, he is not the natural father of the child; (5) the two oldest children stated their preference to live with the mother and minor children especially girls should normally be awarded to the custody of the mother; and (6) appellant's adulterous relationships were not shown to have produced a harmful effect on the children.

In this nonjury case the judgment of the trial court will be sustained unless there is no substantial evidence to support it or is against the weight of the evidence or erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32(1) (Mo. banc 1976), and we set aside a decree as against the weight of the evidence only 'with a firm belief that the decree . . . is wrong,' Murphy v. Carron, supra at 32(2); 'giving deference to the trial court's findings and its ability to have judged the credibility of the witnesses,' L.H.Y. v. J.M.Y., 535 S.W.2d 304, 305--6(1) (Mo.App.1976).

The parties were married on September 19, 1962, and have three daughters, D_ _ A_ _ age 13, D_ _ L_ _ age 11, and D_ _ G_ _ age 6. They separated October 25, 1974, and three days later appellant filed this suit, rented a U-haul, 'packed everything up' and took the children to New Lenox, Illinois, about forty-five miles south of Chicago. Shortly thereafter respondent moved for an order directing appellant to return the children, money and property, alleging appellant left the state with the minor children, stripped the home of furniture and approximately $5,000 cash.

On December 13 of that year, appellant was ordered to bring the three minor children 'to the jurisdiction of Missouri' and return $2,500 cash to the joint control of the parties. Appellant, who had filed her motion for allowances pendente lite, was awarded the right to reside in the family home during the pendency of the action and was allowed to retain custody of the children subject to respondent's 'temporary custody of three children at reasonable times and alternating weekends from 6 p.m. Friday to 6 p.m. Sunday and during Christmas week from 4 p.m. Christmas Day to 4 p.m. New Years Day.'

Respondent next filed a motion for contempt charging appellant 'willfully failed and refused' to return the children to Missouri, notwithstanding the fact respondent, complying with the court's order had moved from the family home making it available to appellant. On March 14 the respondent filed a second motion for contempt, following appellant's willful frustration of his rights of visitation and temporary custody. This motion was sustained April 4, 1975, directing appellant's compliance with the temporary custodial order. At the conclusion of trial, judgment was entered awarding respondent custody of the children and the family home, ¹ providing a proper environment for the children. It is generally recognized a mother is deemed best suited to care for a child of tender years, Johnson v. Johnson, 526 S.W.2d 33, 37(7) (Mo.App.1975), and this is 'not a presumption of law but a recognized fact of life based on human experience,' McCallister v. McCallister, 455 S.W.2d 31, 34(2) (Mo.App.1970). However, this attitude is not inflexible and courts are not reluctant to entrust custody to the father when the best interests of the children will be served thereby. Suddarth v. Suddarth, 515 S.W.2d 817, 820(3) (Mo.App.1974); Leaton v. Leaton, 435 S.W.2d 408, 412(4) (Mo.App.1968). Where the evidence does not preponderate in favor of either party, 'the trial court is vested with broad discretion in awarding custody . . .' Johnson v. Johnson, supra at 37(7).

Significant factors which led to the court's custody award include the following:

Appellant entered into a continuing open adulterous relationship with one K_ _ K_ _. ² At trial appellant admitted having sexual intercourse with K_ _ K_ _ at his home and hers while the children were present in each place. The two older daughters stated they were aware their mother was sleeping with K_ _ K_ _ and lamentably have been somehow convinced this is acceptable conduct. The eldest daughter, D_ _ A_ _, testified:

Q. 'Where does K. K. sleep when he speeds weekends (with your mother)?'

A. 'Sometimes with my mother.'

Q. 'Do you have any feelings about that?'

A. 'No. Because I know they are just friends and she don't really like him that much.'

Q. 'Does she discuss with you things about sleeping with men friends?'

A. 'No.'

Q. 'Do you think that is all right?'

A. 'Yes. Because they have known each other for a long time.'

The 11 year old D_ _ L_ _ testified:

Q. 'Where did you go see him (K.K.) . . .?'

A. 'At his house.'

Q. 'How much did you stay overnight?'

A. 'Maybe two times a week.'

Q. 'Where did your mom sleep?'

A. 'In his '(K.K.'s) bedroom.'

Q. 'Are you sure of that?'

A. 'Yes.'

Q. 'Do you think that is all right?'

A. 'Yes. I guess.'

Adultery is usually insufficient, without more, to 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 adulterous and immoral contacts. This is not to say that moral considerations are not factors in awarding custody, V. M. v. L. M., 526 S.W.2d 947, 949--50(6) (Mo.App.1975); M.L. v. M.R., 407 S.W.2d 600, 602(1) (Mo.App.1966), but critical here is that the mother's affairs were conducted with the children's knowledge and while they were present in the house.

Another factor weighing heavily in favor of the trial court's decree was the mother's attempt to poison the children's minds toward the father. Although the eldest daughter was apparently not respondent's natural child, as appellant was pregnant at the time of marriage, respondent did marry her, knowing of the pregnancy, and raised the child as his own. It is regrettable his chivalrous act was so basely repaid some twelve years later. Respondent gave the child his love and his name, established a home and raised her as his daughter; yet appellant admitted that following the separation she told the child respondent was not her natural father. ³ Notwithstanding her attempts to justify having so done, there can be little doubt and the record abundantly reveals the mother's action had a damaging effect upon the father-daughter relationship to say nothing of the emotional effect on the child.

Asked by the court why she had done this, appellant responded as follows:

THE COURT: 'Yet you are telling this Court that you have decided to tell this child a year after he has been her father for 12 years it was in her best interest to tell her he was not the father. Was that your motive or motives, just what was your motive when you told her that?'

A. 'My motive right after we got married to have this understanding we would tell her as young child. He always told me, 'No'; so, when I did leave Ed I considered it may be more understanding with her and me about the problem that had occurred.'

She was willing to take respondent as her husband, have him raise the child and assume the role of father; but contrary to his wishes when the separation occurred, she told the child these things which she must have known would affect the child's attitude toward the father. Yet when it came time to ask for money appellant made clear her willingness that respondent should provide support.

Q. 'Are you asking this Court to order support for that child? Order your husband to pay support for that child?'

A. (Appellant) 'He says he cares for her.'

Q. 'He has no legal obligation in your judgment?'

A. (Appellant) 'He is her legal father.'

Q. 'He is?'

A. (Appellant) 'Under law he is.'

The damaging effect on respondent's relationship to his children became apparent in the marked change in their attitudes following the separation. In his words: 'We got along well and since then (the separation) there has been drastic change. They are, I don't know how to put it, they have no respect to duty or family or anything else.' The described the home relationship prior to the separation, explaining the children were assigned simple chores from time to time and the family seemed to do well as a unit. The children were paid allowances and disciplined if they failed to do their chores by restricting their 'T.V.' time 'or something like that.' The children responded well to this discipline.

The testimony as to the treatment of the children differs in that appellant contends respondent was cold and indifferent toward the children, respondent testified he treated them with affection. In this regard neither was shown unfit.

On some occasions respondent brought police officers with him to maintain the peace when he attempted to exercise...