Marriage of Powers, In re

• Decision Date: 16 September 1975
• Docket Number: Nos. 36328 and 36345,s. 36328 and 36345
• Citation: 527 S.W.2d 949
• Parties: In re the MARRIAGE OF Patricia POWERS, Appellant-Respondent, and Robert Powers, Respondent-Appellant. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 949

527 S.W.2d 949

In re the MARRIAGE OF Patricia POWERS, Appellant-Respondent and Robert Powers, Respondent-Appellant.

Nos. 36328 and 36345.

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

Sept. 16, 1975.

Paul Brackman, Brackman, Copeland, Oetting, Copeland, Walther & Schmidt, Clayton, for respondent-appellant.

Maureen Swihart, Klamen, Summers & Compton, Norman W. Drey, Jr., Clayton, for appellant-respondent.

DOWD, Judge.

Both parties to a suit for dissolution of marriage appeal the trial court's amended decree of June 17, 1974 as it relates to various aspects of a maintenance award, division of marital property, child custody and allocation of attorney fees.

The wife objects to the trial court's decree on three grounds: 1) that the husband was given an excessive amount of temporary custody; 2) that the amount and duration of the maintenance awarded was unreasonable, and 3) that the husband was awarded an excessive amount of marital property. The husband, in turn, argues that the trial court erred by including as marital property his interest in his company's profit-sharing plan, his stock interest in the company, and, finally, in failing to rule that a loan made by his mother was a lien against the marital home for which the wife should be responsible. He also objects to the award to the wife of $8,000 in attorney fees. We decide on appeal whether the trial court abused its discretion in ordering any of these provisions. Hinson v. Hinson, 518 S.W.2d 330 (Mo.App.1975); Page v. Page, 516 S.W.2d 537 (Mo.App.1974). We also consider the adequacy of the award. Phillips v. Phillips, 219 S.W.2d 249(10) (Mo.App.1949); Jenkins v. Jenkins, 396 S.W.2d 268(7) (Mo.App.1965).

The wife filed suit for divorce against the husband, on May 8, 1972, after 10 years of marriage. The proceedings, which began February 14, 1974, are governed by the new Missouri dissolution of marriage statute, §§ 452.300-452.415, RSMo.Supp.1973, ¹ since a judgment had not been rendered prior to January 1, 1974. ²

The record is complete as to the financial conditions of both parties. The husband's gross income, primarily from the company he operated with two partners, had exceeded $90,000 for each of the preceding three years. In addition, he enjoyed certain fringe benefits such as payment of 90% of his car expenses and 60% of his membership in a tennis club. The husband estimated his expenses to be $15,600. The wife had sold her house shortly after the marriage and used the proceeds to help her husband start an import business. The business was unsuccessful and closed within two years after its beginning. The wife had had some experience in the fashion field, but had not worked except for an occasional, special job, since the birth of the parties' son, a year after the marriage. The wife testified she was working at the time of the trial as a fashion coordinator and earned $800 a month after working for one year. She also testified that she did not want to work and preferred to stay home with her son, who was nine years old at the time of trial. She estimated her monthly expenses to be $2,320. A substantial amount of such expenses represent costs for her son including music, sport lessons and private schooling.

The trial court modified its original decree of dissolution of marriage after considering motions by both parties. The amended decree awarded maintenance of $300 a month to the wife until her son reached the age of 16 (a period of 7 years) and $700 a month in child support. The trial judge divided the various pieces of real estate, personal property and intangibles which were deemed marital property and awarded property valued at $95,811 to the wife, including the marital home valued at $42,000. The husband was awarded marital property worth $107,500. The husband was also directed to pay the wife's attorney's fees in the sum of $8,000. Finally, the modified decree awarded primary custody of the couple's child to the wife with the husband having temporary custody as follows: 1) from 4 p. m. each Tuesday until 9 a. m. each Wednesday; 2) from 5 p. m. Friday until 7 p. m. Sunday on the 1st and 3rd weekends of every month; 3) from 2 p.m. Saturday until 7 p. m. Sunday on the fourth weekend of each month; 4) three weeks each summer; 5) on Christmas Eve each year, on Thanksgiving Day in even numbered years and on Easter on odd numbered years.

The first point in issue, which is the extent of temporary child custody to the father, is governed by § 452.375 of the new Missouri divorce law. ³

The overriding consideration in determining child custody under the new law as well as the old, is the best interest of the child. It has been the rule that the appellate court will not disturb the trial court's custody order unless it is clearly erroneous and the welfare of the child requires a different disposition. Glaves v. Glaves, 523 S.W.2d 169 (Mo.App.1975); J.L.W. v. D.C.W., 519 S.W.2d 724, 729-730 (Mo.App.1975); Northrup v. Sieve, 517 S.W.2d 470, 473 (Mo.App.1974); Wood v. Wood, 400 S.W.2d 431, 436-437 (Mo.App.1966). Due regard must be given to the trial court's opportunity to judge the credibility of witnesses, R.L.S. v. J.E.S., 522 S.W.2d 5, 7 (Mo.App.1975), and to evaluate the intangibles which do not appear in the record in child custody cases. Graham v. Graham, 428 S.W.2d 941, 944 (Mo.App.1968). The wife argues that the trial court abused its discretion in granting the husband excessive temporary custody. The main thrust of her argument is that the son's best interests will not be served by having him frequently shift back and forth between his parents. We hold that the trial court did not abuse its discretion in awarding this extent of temporary custody to the husband. The wife refers us to the language of the Wood case, which says 'Generally speaking, except for good reason, the child should not be shifted periodically from one home to another and as in most instances the interest of the child is best served from a standpoint of stability if one or the other parent is given full custody with reasonable visitation rights to the other parent.' Wood v. Wood, supra, at 437.

The Wood case, however, is readily distinguishable from the instant case. In Wood, this court was reversing an order of the trial court which provided that exclusive and undisturbed custody would change from one parent to the other each year. The child would have been shifted back and forth for alternate periods of full custody. In the present case, the wife has full custody while the husband has limited, temporary custody on enumerated days, which might be compared to the 'reasonable visitation rights' referred to in the Wood case. Similarly in the case of M--- L--- v. M--- R---, 407 S.W.2d 600 (Mo.App.1966), there was a significant reduction in the amount of custody time awarded to the mother, including the elimination of one weekend each month. In that case, both parents had asked for an arrangement with less frequent changes of custody.

A child should ideally have well founded association with both of his parents. In Schumm v. Schumm, 223 S.W.2d 122 (Mo.App.1949), it was held that the rights of both parents must be respected with the court stating, l. c. 125:

'. . . that where both parents are proper persons, not only do both of them have the right to reasonable access to the child, but in fact the child's best interests will be served by making it possible for it to receive the benefits to be derived from association with both its parents.'

The appellate court will change the trial court's custody decree if it determines that the visitations with the father are of unreasonable frequency or duration. Wagner v. Wagner, 465 S.W.2d 655 (Mo.App.1971). In Wagner, the court decided that visitation with the father one weekend every two months, one week in the summer and three days in December was insufficient and increased it to one weekend a month, two weeks in the summer and three days in December. However, each child custody case must be decided on its facts, and it is difficult to compare the types of awards which are made. The wife refers us to several cases, including Wagner, to illustrate that the extent of the temporary custody in this case was unprecedented and unreasonably excessive. But in light of the testimony of the wife and husband at trial, we are not prepared to say that the trial court abused its discretion in awarding the husband the temporary custody of the son as set out above. There is evidence that the husband has a healthy, close relationship with his son and spends considerable time playing with and coaching him in sports. The son also has the occasional opportunity to see his older half-sisters and half-brother when he is at his father's home or in his father's custody. The husband also explained at trial his reasons for wanting custody of the son on Tuesday nights. The mid-week visit would provide the father and son relationship with needed continuity and allow the father to help his son with his homework on a regular basis. The wife argues that the extent of the husband's custody deprives her of her son's companionship on any permanent basis. But this is not true since she will have custody 1 1/2 weekends a month, four nights a week, all but three weeks during the summer and on most holidays. The allocation of custody time between the two parents, both of whom appear to be fit and proper persons, seems to be both a reasonable compromise and, most critically, in furtherance of the child's best interests.

The second issue concerns the wife's contention that the trial court abused its discretion in awarding her only $300 a month maintenance and terminating maintenance altogether when her son reaches 16 (7 years after the trial). The award of maintenance is governed by § 452.335. ⁴ The statute clearly gives the trial court a great deal of discretion. It may grant maintenance only if the two conditions specified are...