Morrison v. Morrison, WD

• Decision Date: 28 August 1984
• Docket Number: No. WD,WD
• Citation: Morrison v. Morrison, 676 S.W.2d 279 (Mo. App. 1984)
• Parties: Willa MORRISON, Appellant, v. Jerry MORRISON, Respondent. 35025.
• Court: Missouri Court of Appeals

Page 279

676 S.W.2d 279

Willa MORRISON, Appellant, v.Jerry MORRISON, Respondent.

No. WD 35025.

Missouri Court of Appeals Western District.

Aug. 28, 1984.

John T. Kay, California, Mo., for appellant.

James F. Crews, Crews, Gaw & Pyle, Tipton, for respondent.

Before LOWENSTEIN, P.J., and MANFORD and BERREY, JJ.

LOWENSTEIN, Judge.

Willa Morrison(mother) appeals from a denial of her motion to modify a child custody award.Her former husband and the father of their two children, Jerry, will be referred to as "father."To facilitate setting out the facts, the following is a chronological list of relevant events:

August 10, 1979Parties living Versailles, Missouri separated; daughter, 12, and son, 10, remained with father.

August 22, 1979Mother filed petition for dissolution.

April 9, 1980 Docket entry that marriage was irretrievably broken, father awarded custody, division of marital property deferred; however, no order or judgment was signed.Mother moves to Eldon, Missouri.

August 18, 1981 Docket entry that real estate was to be sold and by order divided equally.

September 28, 1981 Judgment entered on real estate, but no judgment on the divorce or custody.

November, 1981 Daughter ran away from father's home, mother has had actual custody since.

July, 1982 Son requested mother to pick him up from summer camp and refused to go back to father's home.

August 26, 1982Mother filed this motion to modify the custody award, motion for temporary custody, and asked for child support.

November 3, 1982Mother files for default judgment on August 26th petition saying father has never filed answer.

November 12, 1982Father files response to motion, but only contests the son's custody.

June 20, 1983 Hearing on mother's motion to modify.Court makes nunc pro tunc order, retroactively entering a dissolution and custody (to father) decree as of August 18, 1981, then denies mother's motion.

The mother's only argument is that the trial court erred in holding that an actual change in the children's custody is "insufficient to be a substantial change in circumstances."Taken by itself, that statement is true.The trial judge indicated both parents were competent to be custodians.The children had done reasonably well in school while in the father's home, and had done well with the mother.The evidence was the mother's fiance lived in the home with her and the children--this court does not condone this fact.

The standard of review here is under Murphy v. Carron, 531 S.W.2d 30, 32(Mo. banc 1976), and Rule 73.01.

There are other factors to consider in this case, but the primary one is what is in the best interests of the children.There is value in a child's being kept with the parent who has had custody for a long period of time, as against uprooting him or her and transplanting that child in a new home.Schmidt v. Schmidt, 591 S.W.2d 260, 262(Mo.App.1979);Clouse v. Clouse, 545 S.W.2d 402, 407-08(Mo.App.1976).At the time of the 1983 hearing the son had lived with his mother for almost one year, and the daughter for a year and a half.The children had established themselves in a new school and community.It is in their best interests to avoid yet another move.

The father admitted in his responsive pleading that he had acquiesced in the children's decision to move.At trial he said, "They didn't really talk it over to me.They just done it on their own ... An so I thought, well I'll try it ... see if it was better for them ... I didn't want to fight."The father made no effort to get the children back.In Knoblauch v. Jones, 613 S.W.2d 161(Mo.App.1981), there was similar evidence that the father permitted the children's move and took no action for two years.The court said that "while there can be no estoppel in determining the best interests of the children, his acquiescence in permitting this adjustment must be considered.After such an adjustment has been made there should be compelling circumstances to find that a modification necessitating another adjustment is in their best interests."Id. at 166.

When the mother filed her motion for change of custody, the father was late in filing a response and then only contested the custody of the son.At trial husband said, "Sandra Kay is 16 years old and her ability and everything, if she wants to live down with her mother ... I wouldn't go against it."Later he added, "Well, I'd say most girls would want to be around their mother than be around their dad.Q.And your daughter is no exception?A.I would say no."The custody of the daughter should not have been at issue.

Another factor to be considered is the preference of the children.Knoblauch, 613 S.W.2d at 167.The Knoblauch court said that its record did not reveal a well-reasoned and unequivocally expressed preference nor an extensive conversation between the court and children.Id.Just the opposite is true here.The judge questioned the children at length about details of family life in both households.Both children, ages 16 and 14, confirmed without hesitation that they wanted to live with their mother.Both children described the father's unpredictable temper and the constant fighting, and numerous beatings.Both children left the father's house on their own accord, and even the trial court's decision alludes that the children will live with the mother regardless of which parent has legal custody when it said, "now what the parties agree to on the visitation, or on custody is up to them but this court cannot do anything until it finds a substantial change in circumstances."

Other factors to be considered are the increased ages of the children, and the deteriorated nature of the relationship with the father, and the deterioration of the son's behavior and performance at school while living with his father.Minton v. Minton, 639 S.W.2d 640, 643(Mo.App.1982);McBride v. McBride, 579 S.W.2d 388, 390(Mo.App.1979).

Finally there are Missouri cases which hold that when the custodial parent relinquished the real and actual care and custody of the children to the grandparents that this would be sufficient to authorize a change of custody to the non-custodial...