Riley v. Riley, WD
| Decision Date | 30 November 1982 |
| Docket Number | No. WD,WD |
| Citation | 643 S.W.2d 298 |
| Parties | Jayne Elizabeth RILEY, Appellant, v. Neil Fisher RILEY, Respondent. 33232. |
| Court | Missouri Court of Appeals |
William A. Mallory, Columbia, for appellant.
Gary Oxenhandler, Marvin E. Wright, Columbia, for respondent.
Before SOMERVILLE, C.J., and CLARK and TURNAGE, JJ.
Appellant wife appeals a post-judgment order modifying custody provisions as to children born of her marriage to respondent husband. The original decree of dissolution entered March 24, 1980 awarded custody of the children to the wife and the current order, the subject of this appeal, transfers custody to the husband.
The points on appeal contend first, that evidence as to conduct of the parties subsequent to the original decree but prior to entry of an intervening custody order was erroneously admitted and second, that the evidence failed to demonstrate a substantial and continuing change in circumstances warranting a modification of existing custody provisions. The first point cannot be adequately discussed without some review of the unusual history of the custody dispute as the parties have presented the case in an earlier phase.
At the time the dissolution decree was entered, the parties lived in Columbia, Missouri, the wife and children occupying the family home and the husband living in other quarters. In May, 1980, the wife decided to relocate in California where a man with whom she had been associating was then living. The husband thereupon returned to the family home and has continued to reside in Columbia with the children from that time to the present.
During the summer of 1980, while the wife was uncertain about her personal affairs, the parties entered into an agreement regarding custody of the children. The agreement was reduced to writing and signed July 22, 1980. The agreement purported to be an addendum to the separation agreement made while the dissolution action was pending. The substance of this addendum was recognition of the tacit transfer of custody accomplished by reason of the wife's removal to California. Because the wife was yet unsettled, however, the agreement provided for custody to be in the husband only until May 15, 1981 with restoration of custody to the wife prior thereto on the occurence of various events. If the wife remarried by August 31, 1980, the custody change was to be inoperative. If she remarried by January 1, 1981, custody would revert to her on that date. Regardless of her remarriage, if she returned to live in Columbia, the children were to be restored to her. No provision was made as to custody after May 15, 1981.
The July, 1980 agreement assigned to the husband the responsibility for petitioning the court to modify the dissolution decree respecting custody of the children, as the parties had agreed, and "to obtain the approval and order of the Court therefor." The wife agreed to execute an entry of appearance, waiver of personal service, consent to trial and entry of decree without further notice so that the husband could obtain the approval of the court to the agreement.
On August 6, 1980, the husband filed a motion to modify the decree as to child custody and attached the addendum agreement. The motion was called up for hearing September 8, 1980. The wife was not present or represented and the record is silent as to any notice to her of the hearing. On the same date, apparently based solely on the addendum agreement, the trial court entered an order approving the addendum which the court "found not to be unconscionable." The parties were ordered to perform the terms of the agreement. No modification of the original decree was declared and no express custody placement was ordered.
In December, 1980, the wife had not yet remarried. She moved back to Missouri from California, but located in Kansas City, rather than Columbia and thus was not entitled to regain custody under the terms of the agreement. She made no claim to custody but did exercise opportunities for visitation. In June, 1981, the wife married her present husband and was living in California at the time the present modification motion was heard. That motion, filed in April, 1981 and heard August 25, 1981, sought modification of the original dissolution decree by a transfer of custody of the children from the wife to the husband.
The first point on this appeal contends the trial court erred when it considered evidence as to conduct of the parties between March, 1980, the date of the original decree, and September, 1980, the date of the court's order approving the addendum agreement, as bearing on changed circumstances warranting a change in custody. The wife argues that evidence of changed circumstances should be limited to events after the last custody order which she contends to have been the order made September 8, 1980. She cites Brand v. Brand, 534 S.W.2d 628 (Mo.App.1976) for the proposition that each custody order settles the state of affairs to that date and only events occurring thereafter may be considered relevant to a subsequent motion. The trial court did not agree and admitted evidence of the wife's conduct from and after the date on which the original dissolution decree was entered. The point is material because much of the evidence relied on by the court as demonstrating changed circumstances requiring a change in custody concerned the wife's conduct while the children were in her care from March until May, 1980.
The fallacy in the wife's contention is that the order of September 8, 1980 did not modify the custody provisions of the original decree. It could not have done so because the trial court has no jurisdiction to award custody based only on a stipulation. Despite the agreement, the court was obligated to receive evidence and award custody as appeared to be in the best interests of the children. A stipulation by the parties does not relieve the court of this responsibility.
The court derives its jurisdiction to determine custody of children in marriage dissolution cases from §§ 452.375 and 452.410, RSMo 1978. The trial judge entertains a special obligation as to orders pertaining...
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In re Marriage of Hendrix
...Rule 68.10; Twenty-Ninth Judicial Circuit, Rule 68.11; Thirty-Second Judicial Circuit, Rule 68.08. 9. See, e.g., Riley v. Riley, 643 S.W.2d 298, 300 (Mo.App. W.D.1982) (court "must conduct a hearing and can only act upon presentation of facts from which it may be determined that a change in......
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In re the Marriage of Hendrix v. Hendrix, No. 26470 (MO 6/30/2005)
...of facts from which it may be determined that a change in custody would be in the best interests of the children." Riley v. Riley, 643 S.W.2d 298, 300 (Mo.App. W.D. 1982). There, the court said that an order "based as it was on an agreement by the parties and not on evidence of changed circ......
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State ex rel. Perrella v. McGuire, 15575
...Even a stipulation by the divorced parents with respect to the modification of a child custody decree is insufficient. Riley v. Riley, 643 S.W.2d 298, 300 (Mo.App.1982). Unless and until the decree of May 6, 1987, is validly modified, relator is entitled to custody of Jennifer. In re Cook, ......
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Marriage of Patroske, In re
...a child and great deference is granted to the lower court's determination when custody of a minor child is involved. Riley v. Riley, 643 S.W.2d 298, 301 (Mo.App.W.D.1982). In reviewing an award of custody, the appellate court presumes all evidence was considered by the trial court and custo......