R.------ G.------ T.------ v. Y.------ G.------ T.------, KCD
| Decision Date | 01 November 1976 |
| Docket Number | No. KCD,KCD |
| Citation | 543 S.W.2d 330 |
| Parties | R___ G___ T___, Respondent, v. Y___ G___ T___, Appellant. 28463. |
| Court | Missouri Court of Appeals |
Louis Wagner, Kansas City, for appellant.
Vincent F. Igoe, Jr., Liberty, for respondent.
Before SHANGLER, P. J., and SWOFFORD and SOMERVILLE, JJ.
The wife has appealed from a decree entered in a dissolution of marriage proceeding. Her dissatisfaction with the decree is limited to that portion awarding custody of the two minor children born of the marriage to the husband. The children were girls, age 4 and 2 respectively.
The wife takes the position that the court erred in awarding custody of the two minor children to the husband because they were girls of tender years; particularly so, since the 'evidence failed to show that' she 'was unfit or that her misconduct had any effect on the welfare of the children'.
A brief recital of certain evidence is very telling as to why the trial court arrived at its decision to give the husband custody of the two minor children. Shortly before the parties separated the wife became enamored with another man. The amour was so overpowering that she left her husband and children. The children remained with the husband. After leaving, the wife made no effort to see the children for approximately six weeks. During the six week interim she told her husband that he could have custody of the children. She then began to vacillate and eventually concluded that she wanted custody of the children.
The husband evidenced the traits of a good parent throughout. He shouldered the responsibility of making a home for the children despite the wife's absence. A 'social service worker' from the Clay County Family Service Office conducted a 'home study' for the court regarding the type of home and care provided the children by the husband. She testified 'the house was well kept' and 'located in a neighborhood well adapted to young children', and that the little girls 'seemed to be normal, happy, little girls.'
The desirability of awarding custody of children of tender years, especially girls, to their mother should not be indulged to the extent of excluding consideration of all other relevant matters. Johnson v. Johnson, 526 S.W.2d 33, 37 (Mo.App.1975). The dominant concern when determining custody is the 'best interests' of the child or children. Section 452.375, RSMo Supp.1973; In re Marriage of Powers, 527 S.W.2d 949, 952 (Mo.App.1975); and Kanady v. Kanady, 527 S.W.2d 704, 707 (Mo.App.1975). Once the trial court has spoken on the subject, an appellate court should not disturb a...
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