McDowell v. McDowell, 46874

• Decision Date: 27 March 1984
• Docket Number: No. 46874,46874
• Parties: Jane C. McDOWELL, Appellant, v. James A. McDOWELL, Respondent.
• Court: Missouri Court of Appeals

Page 518

670 S.W.2d 518

Jane C. McDOWELL, Appellant, v. James A. McDOWELL, Respondent.

No. 46874.

Missouri Court of Appeals,

Eastern District,

Division Six.

March 27, 1984.

Motion for Rehearing and/or Transfer to

Supreme Court Denied May 17, 1984.

Application to Transfer Denied

June 19, 1984.

Kenneth S. Lay, Clayton, for appellant.

John D. Gumersell, St. Louis, for respondent.

Before REINHARD, P.J., and CLARK and MOORE, Special Judges.

DONALD B. CLARK, Special Judge.

Jane C. McDowell appeals from the decree entered in a dissolution of marriage case and, in five points, challenges each component of the judgment except the finding the marriage was irretrievably broken. We find no error and affirm the judgment.

Relevant facts appearing in the record will be set out in the discussion of each point with which they are associated.

The first two points concern child custody. Three children, all minors at the time of trial, were born of the marriage. The issue of custody was sharply contested with evidence presented as to the fitness of both parents. Two psychiatrists, a psychologist and a family therapist testified. The decree placed custody of the children in the husband but granted liberal visitation and periods of temporary custody to the wife. In her first point, the wife now contends the court erred in not appointing a guardian ad litem for the children, as authorized by § 452.490.4, RSMo Supp.1981, before deciding the custody issue.

There is no indication in the record that appellant made any request for appointment of a guardian before or during the progress of the trial. After the decree was announced, the wife filed a motion for a new trial or to amend the decree, but again there was no mention of the failure to appoint the guardian. The subject is raised for the first time in this appeal. The point has not been preserved for appellate review. Jones v. Jones, 658 S.W.2d 483, 488 (Mo.App.1983). Appellant urges consideration of the point by this court sua sponte and refers to S. v. S., 595 S.W.2d 357 (Mo.App.1980) as authority. The cited case was one in which the legitimacy of a child born during the marriage was placed in issue by the husband's allegation of misconduct by the wife. We there held appointment of a guardian to be prospectively mandatory if a child's paternity was to be adjudicated incident to the contest between husband and wife in a divorce case. An award of custody does not present a comparable situation. Here, there was ample evidence presented to the trial court upon which the custody issue was decided and we find no aspect warranting sua sponte intervention to rule an issue not presented or considered at trial.

In her second point, also associated with the award of child custody, appellant wife contends there was no substantial evidence to support the finding that the award of custody to the husband was in the children's best interests. The wife points to evidence from the husband himself that she was qualified and capable to follow her profession of elementary school teacher and that no competent evidence from medical witnesses showed her disqualified as parental custodian on mental or emotional grounds. She argues that denying her custody because of evidence she used profane language in front of the children and denigrated respondent in their presence impermissibly punishes her for her bad acts and ignores other evidence of appellant's fitness, including her competence as an elementary school teacher.

The thrust of appellant's contention centers on her qualifications as a custodian and suggests that evidence of her unfitness was not of the substantial nature justifying denial of her request for custody. Even assuming the evidence to be so characterized, however, appellant has not directed attention to any evidence which showed respondent to be unfit. At best, then, the qualifications of both parents under appellant's thesis would be equally balanced. If, in fact, the evidence touching on custody of children does not clearly preponderate in favor of either party, the case is one for exercise of the trial court's discretion to which deference will be given on appeal. In re Marriage of Shepherd, 588 S.W.2d 174 (Mo.App.1979); In re Marriage of Pehle, 622 S.W.2d 711 (Mo.App.1981).

Review of the record consisting of more than 300 pages of trial transcript suggests that the custody award to respondent is well grounded. There was testimony appellant suffered from mood disorders manifested by irritability, anger and irrational behavior, all of which held the potential for adverse effects on the children. It has frequently been said that the trial judge is in a better position to evaluate the credibility, sincerity and character of witnesses and other trial intangibles not completely revealed by the record. In appellate review, this court presumes the trial court studied all the evidence thoroughly and decreed custody in the manner it believed would be in the best interest of the children. Galeener v. Black, 606 S.W.2d 245, 247 (Mo.App.1980). This case is appropriately ruled by that doctrine.

The wife's third point deals with the award of maintenance in the amount of $1000.00 per month for two years. Appellant charges the award was erroneous in respect to imposition of the two year limitation. Although appellant does not take issue with the amount of the award or the authority of the trial court to limit the duration of maintenance in a proper case, she contends the imposition of the limitation was error here because there was no evidence of a reasonable probability of impending change in her financial circumstances.

The facts were essentially not in dispute. At the time of trial, appellant was 38 years old and in good health. She possessed a bachelor of arts degree and a masters degree in elementary education. She had been an active school teacher for six years in the public school system and held a Missouri State Teacher's Certificate. Although she testified at trial that she did not at that time have any current plans for future employment, the reason was her then responsibility for the children at home. That responsibility ended with the award of custody to the husband.

The argument by appellant that she was entitled to an unlimited award of maintenance is based on a mistaken interpretation of § 452.335, RSMo 1978 and the cases which have defined the scope of the trial court's authority to limit the duration of maintenance. While it is true that limitations on the period for payment of maintenance may not be imposed by speculation and conjecture, an award of limited duration is proper if the trial court has before it evidence warranting a reasonable expectation of some impending change in the financial conditions of the parties. In re Marriage of Powers, 527 S.W.2d 949, 956 (Mo.App.1975). If the evidence supports the finding that the wife is qualified for employment by physical ability and training and there is a...