Marriage of Zigler, In re, 36375

• Decision Date: 28 October 1975
• Docket Number: No. 36375,36375
• Citation: 529 S.W.2d 909
• Parties: In re the MARRIAGE OF Sandra Lee ZIGLER, Petitioner-Appellant, and Terry Lee Zigler, Respondent. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 909

529 S.W.2d 909

In re the MARRIAGE OF Sandra Lee ZIGLER, Petitioner-Appellant and Terry Lee Zigler, Respondent.

No. 36375.

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

Oct. 28, 1975.

Speer, Herzog & Ponfil, Theodore D. Ponfil, Alan G. Gerson, John J. Gerst, Evans & Dixon, Henry D. Menginin, St. Louis, for appellant.

William R. Gartenberg, Clayton, for respondent.

RENDLEN, Judge.

This appeal is from the award of custody of a minor child incident to a judgment dissolving the parties' marriage. Neither challenges the judgment of dissolution; however, petitioner-mother appeals from that portion of the judgment awarding custody of the four year old son to the respondent-father.

Appellant's assignments of error may be summarized as follows: The trial court erred in (1) granting custody of the child of tender years to the father as there was insufficient credible evidence to find the mother lacked emotional or mental stability to serve as custodian; (2) admitting portions of the Physician's Desk Reference and allowing testimony relative thereto without proper identification or foundation; and (3) giving insufficient weight to the testimony of the social worker whose child custody study was made and submitted under § 452.390, RSMo 1973.

As provided by Rule 73.01(3), V.A.M.R., on appellate review in this non-jury case, '(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.' While the judgment of the trial court should not be set aside unless erroneous, 'such is not a mandate prescribing judicial 'blindness' because in reviewing this case de novo this court must be cognizant of the further duty to reach its own conclusions based on the law and the evidence presented by the case.' Powers v. Powers, 527 S.W.2d 949 (Mo.App.1975). The court is to enter such judgment as the trial court should have entered. Glaves v. Glaves, 523 S.W.2d 169, 172(8) (Mo.App.1975). In this frame of reference we examine the evidence.

Appellant Sandra Zigler, 18 years of age, and respondent Terry Lee Zigler, 21 years of age, sometimes referred to herein respectively as mother and father, were married in St. Louis County in September, 1969, and to that marriage a son Casey Lee was born March 10, 1971. In January, 1973, the couple separated and suit for dissolution was filed in April of that year. The court, with the parties' consent, issued an order pendente lite, granting the mother custody of the child with temporary custody to the father every other weekend. The mother was awarded $30 a week for temporary child support. At all times since birth, except for periods of visitation, the child has been with his mother.

At trial the parties stipulated to a division of marital property and though the mother asked maintenance for herself of one dollar per year, the father sought none. They agreed the father would pay child support of $30 per week for child support if the mother were awarded custody of their child. The comments of respondent's attorney indicated the suggested weekly payment was based upon certain financial statements, which unfortunately were not made part of the record.

Appellant, 23 years of age at the time of trial, was employed as a medical secretary in the Department of Preventive Medicine at the Washington University School of Medicine where she has worked for two years. She earns a monthly gross of $475, from which she nets $342. Temporarily residing with her parents she leaves the child with a regular babysitter during working days and plans to rent to a two bedroom apartment in St. Louis County in the Kirkwood-Webster Groves area if awarded custody of the child. She has arranged to send him to Jack and Jill Nursery, a Montessori school on the outskirts of Kirkwood. The child is in good health and appellant personally supervises his diet, tends his personal needs, and provides his daily care, including religious and secular instruction.

Respondent, 25 years old at the time of trial, is employed as a draftsman by Federal Pacific Electric where he was worked for eight years. His salary is $528 per month gross; in addition, he received overtime pay of approximately $1,500 in 1973, which may not repeat in subsequent years. Respondent's Exhibit 1, a financial statement and income-expense statement, was not submitted to us on appeal.

Though each party accused the other of fault in the marriage and questioned his or her suitability to care for this child, the record discloses both manifest a sincere interest in the child's well-being and proof of misconduct or unsuitability was insufficient to disqualify either as custodian.

Appellant's claims of respondent's excessive drinking and lack of attention to the health and other needs of the child during visitation periods are somewhat vague. She asserts his drinking frequently culminated in drunkenness which he admitted happened on several occasions. Nevertheless, this and evidence of other misconduct was insufficient to show respondent unsuitable as a parent and custodian. Similarly respondent's complaints against appellant as an overpossessive wife and mother, jealous of any activity on his part with other women or his friends, are insufficient to show her unsuited as custodian of the child. The evidence indicated respondent's parents and immediate family were more supportive and closely knit than appellant's; yet both homes are acceptable environments for the child.

The trial court awarded custody of the child to respondent finding 'that the credible evidence showed that respondent was a much more stable person than petitioner.' This brings us to the only substantial challenge to appellant's fitness as custodian; namely, respondent's allegation as to her mental and emotional condition. Respondent complained that appellant displayed fits of temper, sometimes shouting or screaming at the child, was depressed and cried on numerous occasions, especially in the final months of the marriage. Respondent's other witnesses testified appellant was possessive and jealous of her husband's actions toward other women and seemed to transfer her affections to the child. Appellant on the other hand testified that her mental and physical health was good and this was corroborated by her doctor and her mother.

Respondent stated his wife seemed tense, upset and nervous, but then conceded she was 'more or less shy,' admitting that the parties had arguments regarding money matters that got out of hand. He stated 'They could have been settled easily but I guess, we're hardheaded.' (Emphasis added). He acknowledged there was a failure of communication and he did not know how to reach his wife, which as he described 'was probably my fault, I don't know.' According to respondent, during this period appellant stated she wished she were dead, though this was the only instance in which she made such statement. It is significant that when prompted by leading questions of his attorney, suggesting that his wife's mental health was the reason he wanted custody of the child, respondent drew back from that position and stated 'I really can't say mental health.' (Emphasis added).

Respondent's allusions to appellant's so-called mental health problems were substantially refuted by subsequent professional testimony. In January, 1973, appellant quite understandably sought the marriage counseling service of Dr. Fritz Henn, psychiatrist at Barnes Hospital. During that initial visit he suggested the husband as well as the wife should come to see him. The doctor contacted respondent-husband but they could not agree on a time for an appointment and his office notes showed 'the husband will not come in.' Immediately thereafter the parties separated. Respondent conceded the appointment was not kept and that the subsequent separation and dissolution ended the effort.

Dr. Henn testified as to Sandra Zigler's condition, describing it as 'situational distress' which he said was 'in essence, (a) normal reaction to the stress situation' she was then experiencing. He further testified 'She did not suffer, in my opinion, any depressive reaction of any kind at that point.' The doctor and Sandra Zigler agreed that since the parties had separated there was no further need for consultation. In January, 1974, before the trial in April, he found she was 'concerned about the court trial, feeling somewhat anxious of the circumstances surrounding this proceeding' and she 'suffered from no psychiatric illness.' (Emphasis supplied). The doctor saw Sandra again February 24, 1974, and found though she was concerned about the pending...