P.L.W. v. T.R.W.

• Court: Missouri Court of Appeals
• Writing for the Court: PER CURIAM; PREWITT
• Citation: P.L.W. v. T.R.W., 890 S.W.2d 688 (Mo. App. 1994)
• Decision Date: 30 December 1994
• Docket Number: No. 19278,19278
• Parties: P.L.W., Petitioner-Appellant, v. T.R.W., Respondent-Respondent.

Page 688

890 S.W.2d 688

P.L.W., Petitioner-Appellant, v. T.R.W., Respondent-Respondent.

No. 19278.

Missouri Court of Appeals,

Southern District,

Division Two.

Dec. 30, 1994.

Steven Privette, Willow Springs, for petitioner-appellant.

Dale R. Engelbrecht, Henry, Henry & Engelbrecht, P.C., West Plains, for respondent-respondent.

PER CURIAM.

On September 30, 1992, the trial court entered a decree dissolving the marriage of Appellant, P.L.W. (Mother), and Respondent, T.R.W. (Father). In its decree, the trial court adopted the child custody provisions of the parties' separation agreement. As a result, the parties were awarded joint legal custody of the one minor female child, born July 7, 1991, with Mother to have primary physical custody and Father to have visitation rights from 9:00 a.m. until 5:00 p.m. each Saturday, and between the same hours on alternating major holidays. It also provided that when the child reached four years of age Father would have visitation every other weekend from Friday at 6:00 p.m. until Sunday at 6:00 p.m., two separate two-week visitation periods during the summer months, and alternating major holidays.

Mother filed a motion to modify the dissolution decree on January 20, 1993 in which she alleged that there had been a continuing and substantial change in circumstances, together with facts and circumstances which had been unknown to the trial court at the time of the decree, requiring a modification so as to restrict or eliminate Father's visitation with the child. In support, Mother alleged that Father "engages in the wearing of women's clothing, sometimes in the presence of third persons and frequently soils same with semen stains."

At the hearing on the motion, Mother described instances during their marriage when she discovered Father masturbating while wearing her dresses, and she also described his admissions about having done so on other occasions. ¹ Another woman testified that Father borrowed one of her dresses and returned it with semen stains. Although it is not clear from the record, we gather that this occurred after the parties separated but prior to the dissolution of their marriage.

Father admitted the occurrences involving women's clothing described by Mother and the other female witness but contended that it had never occurred in the child's presence. He also testified that the instant motion was filed after he indicated to Mother that he would not consent to the child's adoption by her boyfriend in the event they were married.

Mother admitted that she had known of this behavior prior to the dissolution of their marriage, but that it had not been presented to the court when the dissolution was heard because of her attorney's insistence that it was unnecessary. ² She also testified that the provisions in the separation agreement concerning child custody, which were ultimately incorporated into the decree, reflected a compromise based upon her knowledge of Father's conduct, and that in presenting that agreement to the dissolution court, she had testified that the visitation privileges provided for Father were in the child's best interest.

The evidence indicated that the incidents involving Mother's clothing, although having occurred in the family home, were not in the child's physical presence because she was usually in another room asleep. Mother testified that she was unaware of any effect Father's conduct had had on the child and had not taken the child to a psychologist, physician or counselor. There also was no evidence that Father had committed acts of this nature since the dissolution or that any behavior had occurred when he was with the child which could be considered detrimental to her welfare.

The trial court denied Mother's motion to modify, finding that Mother had known of these incidents at the time of the dissolution and had testified that Father's visitation would be in the best interests of the child; that there was no evidence that Father's visitation with the child since the dissolution had in any way harmed her; that the evidence indicated the child had a good relationship with Father and enjoyed spending time with him; and that "there is no evidence that respondent's sexual behavior, which occurred outside the presence of the child, has endangered the child's physical health or impaired her emotional development." It also ordered that Mother pay Father $500 toward his attorney fees.

Mother contends on this appeal (1) that the trial court erred in not restricting Father's visitation privileges because no negative effect on the minor child is required as a prerequisite for doing so, and (2) that it was an abuse of discretion to enter an award of attorney fees.

Our review of an order denying a motion to modify is governed by Rule 73.01, ³ as construed in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). In re Marriage of Amos, 843 S.W.2d 946, 950 (Mo.App.S.D.1992). Therefore, the trial court's judgment will be affirmed unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Id.; Wilhelmsen v. Peck, 743 S.W.2d 88, 94 (Mo.App.S.D.1987). In considering the sufficiency of the evidence, we accept as true the evidence and inferences therefrom that are favorable to the trial court's decree and disregard contrary evidence. In re Marriage of Johnson, 865 S.W.2d 412, 414 (Mo.App.S.D.1993).

The trial court has broad discretion in determining matters involving child custody and that decision will be affirmed unless the appellate court is firmly convinced that the welfare of the child requires some different disposition. T.C.H. v. K.M.H., 784 S.W.2d 281, 283 (Mo.App.E.D.1989). See also In re Marriage of Johnson, 865 S.W.2d at 414; In re Marriage of Amos, 843 S.W.2d at 950. We proceed on the presumption that the trial court studied all of the evidence thoroughly and decided the custody matter in the manner it believed would be in the best interests of the child. L.H.Y. v. J.M.Y., 535 S.W.2d 304, 306 (Mo.App.E.D.1976). The reason for this presumption is that the trial court is in a better position to judge the credibility of witnesses as well as their sincerity, character and other intangibles which may not be revealed by the record. Id. Section 452.410.1 ⁴ provides, in part:

[T]he court shall not modify a prior custody decree unless it ... finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child.

As recognized by the trial court, however, § 452.400.2 applies where, as in the instant case, the issue is whether visitation privileges should be restricted as opposed to whether custody should be transferred. See Feese v. Feese, 613 S.W.2d 882, 887 (Mo.App.W.D.1981); L.L.T. v. P.A.T., 585 S.W.2d 157, 159 (Mo.App.W.D.1979). It provides, in part:

The court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child, but the court shall not restrict a parent's visitation rights unless it finds that the visitation would endanger the child's physical health or impair his emotional development.

Modification of a visitation order by terminating it or requiring that it be supervised has been interpreted as a restriction, within the meaning of § 452.400.2, thereby requiring the endangerment-impairment finding. See In re Marriage of Amos, 843 S.W.2d at 951-953. This is consistent with a number of cases in Missouri where the appellate court noted either the existence or lack of evidence indicating that a minor child had been or would likely be adversely affected by the conduct of a parent. See Shoemaker v. Shoemaker, 812 S.W.2d 250, 255 (Mo.App.W.D.1991); Boschert v. Boschert, 793 S.W.2d 495, 497 (Mo.App.E.D.1990); Ryan v. Ryan, 652 S.W.2d 313, 315 (Mo.App.E.D.1983).

Mother argues in the instant case, however, that Father's behavior is a form of homosexuality and that Missouri courts have not required a showing that a child suffers from existing adverse effects before restricting a homosexual's visitation rights. She cites, as her only authority, J.P. v. P.W., 772 S.W.2d 786 (Mo.App.S.D.1989). In that case, a Texas court had awarded a homosexual father "possessory custody" of the child for ten days every other month. At the hearing on the mother's motion to modify, filed in Missouri, evidence was presented that the father and his homosexual lover not only continued to live together but also shared the same bed during the child's visits; that they would hold hands and kiss in her presence; and that the father believed it was healthy for the child to be exposed to his alternate lifestyle. There was also evidence that when the child returned from visits with her father, the mother noticed changes in her behavior described as a "clinging" and an unwillingness to let her mother leave the room. The trial court ordered that during the child's visits, neither the father's lover nor any other male with whom he might be residing could be present. This court, however, further modified the original decree by eliminating the temporary custody or visitation provisions, ordering that any visitation must be supervised, and remanding the case for a determination of the circumstances which would be appropriate for periodic, supervised visitation. In doing so, however, it said:

The father is an avowed and practicing homosexual who believes that it is in the best interests of the child that she be exposed to such activity. He believes that his homosexual lover should participate in the child's development. The father and his homosexual lover have displayed homosexual activities by holding hands and kissing in the child's presence. The condition of the child when returned from...