Schmidt v. Schmidt, KCD
| Decision Date | 03 December 1979 |
| Docket Number | No. KCD,KCD |
| Citation | 591 S.W.2d 260 |
| Parties | Alice M. SCHMIDT, Plaintiff-Respondent, v. Robert J. SCHMIDT, Defendant-Appellant. 30565. |
| Court | Missouri Court of Appeals |
Douglas A. Dowell, Independence, for defendant-appellant.
Richard J. Southall, Kansas City, for plaintiff-respondent.
Before DIXON, P. J., and TURNAGE and KENNEDY, JJ.
The present case is an appeal from an order of the Circuit Court of Jackson County changing the custody of 11-year-old Victoria Lynn Schmidt from her father, Robert J. Schmidt, to her mother, Alice M. Urena. The order of the court also fixed child support payable by the father to the mother at $150 per month, and provided for visitation to the father. The hearing was held October 2, 1978, and the order was entered that day.
Robert and Alice were divorced October 15, 1973, and Victoria Lynn's custody was given to her mother at that time. Then in the spring of 1975 Alice was suffering from a period of depression, connected with alcoholism, and Victoria Lynn's custody was transferred to Robert upon his motion to modify. That modification was not contested by Alice and the order was entered on June 10, 1975. More of that modification later.
On November 18, 1976, Alice married Richard Urena, a retired, partially disabled former member of the United States Marine Corps. He was 46 years old at trial time. Mr. Urena had an 11-year-old son by a previous marriage who lived with him and Alice. He received retirement and disability pay which totals approximately $840 a month.
About three weeks before the trial, Alice and Mr. Urena, along with David, had moved to a 20-acre tract near El Dorado Springs, Missouri, where they had some hogs and chickens. Alice was not employed outside the home and intended to spend full time at home. Mr. Urena expected to devote his full time to the operation of the farm. El Dorado Springs is 100 miles from Kansas City.
They had a six-room house on the farm, where Vickie, if she came to live with them, would have her own bedroom. It had modern facilities. She would attend the El Dorado Springs public schools. Alice said the school system had a Triple-A rating. Vickie would be transported to school, a distance of eight miles, by the school bus.
Before moving to the farm, Mr. Urena and Alice had operated a bar in Kansas City, Kansas. Alice had worked full time in the bar. They had sold the bar and had nothing further to do with it. The proceeds from the sale of the bar were used to purchase the farm. They had paid $6,000 down and owed between $18,000 and.$19,000 on the farm, payable in monthly payments of $200.
Although the Urenas had no church affiliation, they had been attending a Church of God located near the farm, Alice said. She also said she would take Vickie to the Catholic Church at El Dorado Springs on Sunday "if she wanted to continue to go to the Catholic Church".
Alice testified that she had had an alcohol problem. She had gone through an alcoholic center in January of 1978, and had not been intoxicated since that time. Until a time about three months before the trial, she had been on Antibuse. She had also attended Alcoholics Anonymous meetings, although not since their move to El Dorado Springs. She had gone at some time to a marriage counselor because of the strain her drinking was putting on her relationship with Mr. Urena. Alice is 41.
Mr. Schmidt lived in Independence, Missouri, with his parents. He worked for General Motors in Leeds, a night shift, and his net earnings were a little over $250 per week. When he got Vickie's custody in 1975, her teeth were in bad condition and he had to spend $750 in dental costs for retainers. Robert took her to Girl Scouts, bowling, volley ball, skating, and to occasional shows of the Walt Disney variety. She was doing very well in school, although she had been doing poorly before the 1975 transfer. She attended Holy Family School in Independence. In caring for Vickie, Robert was assisted by his mother. During the previous summer 1978 Robert had built a swimming pool for Vickie, as a reward for her wearing the retainer on her teeth. Robert explained, "I felt that this would show her that doing the right thing she can have a few things".
Alice testified to some difficulties and frustrations in seeking to exercise her visitation rights. Some tension developed over the fact that Alice would take the child with her to the bar where she worked, a practice which Robert objected to. Vickie, in an in-camera conference with the court, said that on those occasions she would stay behind the counter "nobody could get to me", Vickie said or in a back room or in the bathroom. A second cause for disagreement was Alice's not getting Vickie off to church on Sunday mornings. Alice, according to Vickie's report to her father, would sleep until noon and Vickie would miss church. At one time during the summer of 1978 a quarrel over this subject took place when Alice came to pick up Vickie for visitation. Robert undertook to deny permission for Vickie to accompany her mother, and he twisted Alice's arm. Vickie's tears caused him to yield and the visitation was permitted.
Both Robert and his mother testified that Alice was sporadic in her contacts with Vickie, sometimes going three or four weeks without calling or seeing her. Alice would sometimes call for visitation on short notice when Vickie had other plans, Robert said, and sometimes Vickie herself would fail to return her mother's calls. They insisted that they had not purposefully stymied Alice's visitation with Vickie.
Robert, as earlier stated, lived with his mother and father in a two-bedroom home. His parents occupied one bedroom and Vickie the other, while Robert slept in the basement. His mother was 67, his father 71. Both worked part-time outside the home, the mother at a convent and the father at St. Mary's School. His mother testified at the trial. She spoke of helping Vickie with her homework and of sponsoring a birthday party for her. Evidently the general management of the household fell to her.
Robert said that Vickie was doing well in school, and has a number of friends and has "all kind of girl friends". Nine of them had attended a birthday party for her on the day before the trial, and eight or nine were often at her house playing...
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...must be such as to give definite promise that the custody change will benefit the child in a substantial way." Schmidt v. Schmidt, 591 S.W.2d 260, 262 (Mo.App.1979). "The change required by this statute must relate to a change in circumstances of the children or of their custodian, not the ......
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