Roark v. Harvey, 27927
| Decision Date | 29 November 1976 |
| Docket Number | No. 27927,27927 |
| Citation | 544 S.W.2d 287 |
| Parties | Leslie Junior ROARK II, Respondent, v. Patricia Ann Mary HARVEY, Appellant. |
| Court | Missouri Court of Appeals |
Daniel M. Czamanske, Parkville, for appellant.
Benny J. Harding, Kansas City, for respondent.
Before TURNAGE, P.J., and WELBORN and HIGGINS, Special Judges.
Following divorce, granting father reasonable visitation privileges with minor son whose custody was awarded to mother, father sought to modify decree to grant specific visitation privileges. Mother filed cross-motion, seeking to further limit father's visitation and seeking increase in support for child from $20 to $40 per week. After a hearing, trial court granted father's motion and denied mother's. She appeals.
Leslie Junior Roark II ('Jay') and Patricia Ann Mary Roark ('Pat') were divorced by decree entered in the Platte County Circuit Court, February 10, 1972. Custody of the couple's three-year-old son, Leslie Junior Roark II ('Les'), was awarded to Pat. On February 7, 1972, the parties had entered into an agreement by which they agreed to recommend to the court that custody of the child be given to the mother and that the husband pay $20 per week for his support. The agreement further provided:
The decree of divorce did not incorporate the agreement and provided only for reasonable visitation by the father.
Visitation by Jay proceeded generally in accordance with the agreement until August, 1974, when Pat, for reasons discussed below, decided that the prior visitation arrangement was no longer reasonable and sought to limit the child's visits with his father to five hours once every three weeks. The father's motion to modify was filed September 12, 1974.
At the hearing on the motion in February, 1975, Jay testified that he was a switchman for the Missouri Pacific Railroad. He was earning $44 per day compared with $36 per day at the time of the divorce but had been on the extra board and worked less frequently. In February, 1973, he had remarried. His present wife, Linda, had a five-year-old daughter (Marla Sue Hopple) by a previous marriage. The child got along well with Les, some 6 1/2 years old at the time of the hearing. Linda and Les also got along well. Jay testified that he loved his son and wanted to see him at every opportunity.
Pat's decision that the visitation arrangement was no longer reasonable was reached in August, 1974, after Les returned following the two-week vacation visit with Jay. Jay worked much of the time during the period and Les spent considerable time with Jay's mother. According to Pat, when Les returned he had bruises on his back, buttocks and legs and scratches on his arms and hands. The child said a cat had scratched him and he said he hadn't fallen. Pat asked Jay about the boy's condition and he said he didn't notice anything. When Les went on his next regular visitation, he again returned with scratches. Pat decided that Les wasn't being watched properly and she 'stopped reasonable visitation.' Jay attributed the scratches to a cat which slept with them. He said he saw no bruises. Mrs. Roark, Jay's mother, said she never struck Les.
Shortly after the divorce, it was discovered that Les was anemic and he was placed on medication. According to Pat, when he would visit Jay, she would send his medication along, but often when Les and the medication returned home there was no evidence that any medication had been used. Jay said that whenever he brought medication, it was given as called for.
According to Pat and her witnesses, Les would return from visitation with Jay hungry, tired, nervous, inattentive and stuttering. Attempts by Jay to see the boy at school made him upset and nervous. According to Pat, when the visitation became limited, Les became 'more at ease.'
As evidence that Jay's conduct created an unsuitable moral environment for the child, appellant relied upon a series of occurrences. There was general agreement that the events cited did occur but the evidence was in dispute as to who was at fault and who was present at the time. A summary of the occurrences follows.
Sometime before the divorce Jay went to Pat's mother's house where Les was. Jay had a tape recorder and he attempted to induce Les to say that he wanted to go with Jay. Jay admitted the visit, but said he just wanted to record his son's voice.
Again, shortly before the divorce, Pat and Les were in an auto, Pat noticed Jay following in his auto. She tried to elude him but could not do so and drove to a police station. Jay came up to her car, grabbed Les and said he was going to take him. Pat protested and a policeman interceded. Jay acknowledged the incident and that he took Les from the seat of Pat's car but denied there was a 'physical argument.'
At around the time of the divorce, Pat, her father and her uncle came to the Roark residence to get Pat's and the boy's belongings. An argument with Jay developed and Jay discharged a shotgun in the air. According to Pat she told Jay she wanted to go in the house and get some of her belongings. Jay told her that all of her things were on the front porch and she wasn't going into the house. When Pat and her uncle insisted, Jay fired the gun. According to Jay, he fired the gun when Pat's father insisted he was going into the house after Jay told him he didn't want him in the house. The police were called in connection with this incident.
Pat testified to Jay's coming to her place of employment at a grocery store and threatening her. Jay said he went to the store in order to talk to Pat about a reconciliation.
According to Bud Harvey whom Pat married in February, 1973, Jay accompanied by Les came to the store where Bud worked in the summer of 1972 and Jay threatened him. Jay said that he was in the store buying groceries and Les wanted to say hello to Bud and no threats were made.
Jay acknowledged that, in the summer of 1972, he went to Bud's apartment. Bud was not there but his roommate was and Jay asked him whether or not Pat spent the weekend there with Bud. Les was along but according to Jay was out in the hall at the time of the conversation.
Again in the summer of 1972, a problem arose when Jay arrived on a motorcycle to take Les on the visitation.
On Christmas Day, 1972, a difference arose about the time for Jay to return Les to his mother. According to Jay, he took Les to Pat's and when she wasn't there went to Pat's mother's and didn't find anyone. He then went to Pat's uncle Gus Dobbelaire. According to Jay, Gus invited him in and he asked Gus to get hold of Pat and tell her that if she was not home shortly, he would take Les home and return him the next morning. According to Jay an argument developed and Gus hit him and kneed him and threw him out the door. According to Gus, Jay just walked into the house. An argument developed and Gus got mad, 'took a swing at him and throwed him out the door.'
According to Pat's mother, in March (sic) 1973, Linda was driving an ice cream truck and she and Jay would come past her house, stop and ring the truck bell five or ben minutes, trying to lure Les outside. She also testified to harassing calls and visits from Jay and his mother.
In the summer of 1974, Jay and Linda separated for about 60 days. According to Jay, the separation was the result of the problem about Les's visits. During the separation, Jay, with Les along, took a woman to a drive-in movie. According to Jay, the woman was an old friend ant the movie was all there was to it, but he could not recall her name. There was also testimony regarding an encounter between Jay and Linda's ex-husband at which Jay displayed a pistol. Jay said the pistol was unloaded. He was uncertain as to whether Les was present. There was also evidence that, during the separation, Jay and Linda...
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