N. J. W. v. W. E. W., KCD
| Citation | 584 S.W.2d 148 |
| Decision Date | 29 June 1979 |
| Docket Number | No. KCD,KCD |
| Parties | N.J.W., Appellant, v. W.E.W., Respondent. 29930. |
| Court | Court of Appeal of Missouri (US) |
Ken P. Seck, Kansas City, for appellant.
Charlotte P. Thayer, Thayer, Gum, Ernst & Wickert, Grandview, for respondent.
Before SHANGLER, P. J., and WASSERSTROM and CLARK, JJ.
This case was brought to dissolve a marriage of eight years duration, to which three daughters were born. The trial court decreed dissolution, awarded custody of all three children to the husband and ordered a division of the marital property. The wife appeals, claiming error as follows: (1) that the court made no findings of fact and conclusions of law although requested to do so; (2) that the court abused its discretion in awarding child custody to the husband; (3) that the court failed to exhaust its jurisdiction because it made no disposition of marital debts and obligations; and (4) that the court abused its discretion by not making a just distribution of property and by not allowing maintenance and attorney's fees to the wife.
The wife's brief states that "the Trial Judge failed to provide Findings of Fact and Conclusions of Law concerning his rulings on custody although requested to do so." The quoted statement is not accurate. At the time the court awarded custody, it made the following oral finding: Subsequently, as part of the formal judgment entry, the court found "that the Respondent (the husband) is entitled to the care, custody and control of said minor children and that their best interests will be served by such award of custody."
The wife cannot legitimately complain of lack of any greater particularity by way of findings. Rule 73.01-1(b) requires only that a court trying a case without a jury make "findings on such controverted fact issues as have been specified by counsel." The wife's counsel never did request any particular findings on specified issues. His request was limited to the statement: "I would ask for a findings of fact and conclusions of law." Beyond this the only request by the wife's lawyer was the further statement, "Your Honor, I did ask for findings of fact and conclusions of law." Immediately after the request just quoted, the court suggested "submit me proposed findings of fact and conclusions of law, and I will go from there." The record does not show any proposed findings submitted on behalf of the wife nor any other further request in this regard. The wife's first point has no merit.
The wife anchors her position with respect to custody of the children in the legal presumption that all other factors being equal, the best interest of children of tender years is to be in the custody of the mother. However, that presumption is by no means conclusive, and each custody case must be decided as a factual matter on all of the evidence presented. In re Marriage of Bussman, 572 S.W.2d 228 (Mo.App.1978); In re Marriage of H.B., 559 S.W.2d 73 (Mo.App.1977); R.G.T. v. Y.G.T., 543 S.W.2d 330 (Mo.App.1976); Johnson v. Johnson, 526 S.W.2d 33 (Mo.App.1975).
In the present case there was evidence of several other relevant factors. By way of background, the evidence shows without dispute that the wife left her home and children in 1973 to make a trip to California with two truck drivers, at which time she was gone for a period of from about two weeks to a month. That might possibly be considered as closed ancient history, except for more recent conduct on her part of a somewhat comparable nature. Thus, after the final separation from her husband, she confessedly began living with her male friend on a regular basis in his apartment, and she continued to do so up to the time of the final hearing of this case. Along with the admission of this relationship, she brazenly stated in her testimony that she had no intention of marrying this man, although she introduced her children to him. Also to be considered is the fact that the wife has been pursuing part time employment at night as a disco dance instructor for which she is paid in part by an allowance for her bar bills. Although sexual misconduct has frequently been held not sufficient in and of itself to deprive a mother of the custody of her child or children, her morals nevertheless remain a pertinent factor which can and should be taken into account in determining whose custody will serve the best interest of the child. J.L.W. v. D.C.W., 519 S.W.2d 724 (Mo.App.1975); V.M. v. L.M., 526 S.W.2d 947 (Mo.App.1975).
The evidence also shows that during the period of time that the wife had custody of these children immediately after her separation from her husband, she neglected the children by leaving them with a young babysitter for extended periods of time. On some of these occasions the children had the babysitter call their paternal grandmother, they were crying and saying they had not seen their mother for a long period of time, that there was no food in the house and that they were hungry. In those situations the grandmother had to come to the rescue.
Moreover, after the husband had taken over custody, the wife failed to make known her whereabouts, and the husband was able to locate her address and phone number only by following her from her place of employment at a discotheque to the apartment of her male friend.
Still further, the wife made no effort to talk to the teachers of any of the children or participate in any of the school activities. There were considerable lengths of time during which she made no effort to see or inquire about the children. On many occasions when it had been arranged for her to pick up the children for visitation, the husband and his mother got the children ready, but the wife never appeared.
Placement of child custody turns in considerable measure on an evaluation of the qualifications of the respective parents, and as to this evaluation deference is due to the trial court. R.G.T. v. Y.G.T., supra; Shannon v. Shannon, 550 S.W.2d 601 (Mo.App.1977). Based on the evidence just summarized, the evaluation made by the trial court does not constitute an abuse of discretion.
The wife complains that the trial court failed to consider certain additional evidence which she tried to get...
To continue reading
Request your trial
-
Costley v. Costley
...the court 'divide the marital property.' A debt owed by the spouses does not constitute 'property' owned by them." N.J.W. v. W.E.W., 584 S.W.2d 148, 151 (Mo.App.1979). Also see In Re Marriage of Kluba, 647 S.W.2d 920 (Mo.App.1983); Hurtgen v. Hurtgen, 635 S.W.2d 69 (Mo.App.1982); Waitsman v......
-
Stitt v. Stitt, WD
...the relative economic position of the parties, but the circuit court must and does have broad discretion in such matters, N.J.W. v. W.E.W., 584 S.W.2d 148 (Mo.App.1979). In the context of our dissolution statute, circuit courts are not bound by counsel's testimony regarding the claimed valu......
-
Frederick v. Frederick
...(Mo.App.1978) and no complaint can lie for the lack of particularity of findings and conclusions absent such requests. N.J.W. v. W.E.W., 584 S.W.2d 148 (Mo.App.1979). On July 19, 1971, Janis Pickens (hereinafter referred to as the mother) and Ricky Frederick (hereinafter referred to as the ......
-
Nowels v. Nowels, 43336
...Admittedly, the boys are of "tender" years. But whether the "tender years presumption" is a legal presumption, e.g., N. J. W. v. W. E. W., 584 S.W.2d 148, 150 (Mo.App.1979) or an inference of fact based upon perceived human nature, e.g., McCallister v. McCallister, 455 S.W.2d 31, 34 (Mo.App......