Taylor v. Taylor, s. 37327 and 37338

• Decision Date: 15 March 1977
• Docket Number: Nos. 37327 and 37338,s. 37327 and 37338
• Citation: 548 S.W.2d 866
• Parties: Toby N. TAYLOR, Appellant-Respondent, Respondent-Appellant, v. Ella Van TAYLOR, n/k/a Ella Van Nesiba, Respondent-Appellant, Appellant-Respondent. . Louis District, Division Four
• Court: Missouri Court of Appeals

Page 866

548 S.W.2d 866

Toby N. TAYLOR, Appellant-Respondent, Respondent-Appellant, v. Ella Van TAYLOR, n/k/a Ella Van Nesiba Respondent-Appellant, Appellant-Respondent.

Nos. 37327 and 37338.

Missouri Court of Appeals, St. Louis District, Division Four.

March 15, 1977.

Jack Gallego, Troy, for appellant-respondent, respondent-appellant.

Niedner, Moerschel, Ahlheim & Bodeux, Reginald P. Bodeux, St. Charles, for respondent-appellant, appellant-respondent.

NORWIN D. HOUSER, Special Judge.

Appeal by Ella, natural mother of Todd and Christopher, aged 8 and 10 years, respectively, from an order modifying the custody provisions of the original decree of February 13, 1970 divorcing Ella and Toby.

The 1970 decree awarded Ella primary custody of the children, giving Toby temporary custody on alternate weekends from Saturday morning until Sunday evening and two weeks in the summer. Both parents lived in Missouri. Toby remarried in 1970. Ella remarried in 1973. Both new spouses came to these marriages with children from former marriages. Ella's second husband graduated from a chiropractic college in Missouri in September, 1974. Having vacationed in Maine in July, 1974 and having then investigated the possibilities of practicing in that state he took the Maine qualifying examination shortly after graduation, passed it, bought a house in Maine and established himself there in the practice of chiropractic. When the couple moved to Maine they took Todd and Christopher with them without Ella having first obtained a court order authorizing her to take the children outside Missouri. From Maine Ella wrote Toby, telling him of her move. He promptly filed a motion to modify the custody decree, seeking an order transferring custody to him. Ella filed a countermotion, seeking modification to grant her permission to remove the children from the state.

Extensive testimony was heard on the motions, which were consolidated for trial. Toby, Ella, their present spouses, and the two children testified at length. Toby's home in O'Fallon and Ella's home in Ellsworth, Maine, both of which are adequate and comfortable for their respective families, were described. The history of the case, the lives and relationships of the parties, spouses and children and their interactions and attitudes, before and after the move to Maine, were testified to in some detail. The pluses and minuses of the two homes, the children's associates and friends, and the schools, churches and communities, were explored.

At the conclusion of the hearing the court made an order continuing primary custody in Ella, granting her the right to remove the children from Missouri, and awarding Toby rights of visitation and temporary custody as follows: (a) custody for ten days following the trial; temporary custody during (b) the Thanksgiving school vacation, (c) one-half the Christmas-New Year vacation, but not less than 5 days, (d) the spring vacation, (e) the Easter vacation, (f) any other traditional school vacations exceeding four days in length, and (g) six consecutive weeks during the summer vacation. The order provided that Ella "pay all costs of transportation to and from (Toby's) residence, for all such periods of temporary custody in (Toby) as set forth in (the) Court's order; said costs are to be paid in advance to (Toby) and if said costs have not been paid in advance, petitioner shall have the right to deduct any such costs from the child support payments." (The child support required by the original 1970 order, not changed in 1975, requires Toby to pay Ella $25 per week for each child.) The airplane transportation costs between Maine and Missouri are "about $400" (per trip). Toby, a carpenter and house builder, averages approximately $300 per week net wages plus 10% profit when he sells a house. Ella's husband's gross revenue in June, 1975 was $1900; in July, 1975 it was $2500. Ella is an experienced legal secretary. Toby's wife is a licensed beautician. Neither woman was working at the time of the hearing; each spends her full time at home in her capacity as housewife and mother.

The propriety of the primary award of custody to Ella and the amounts awarded for child support are not in contention. The only issues for consideration on this appeal are the number of times per year the court allowed Toby temporary custody, and the assessment of all transportation costs against Ella.

Ella's first point: "The trial court erred in granting (Toby) temporary custody five times during the year since the best interests of the two minor children are not served by such frequent shifts of custody from Maine to Missouri and back." This point is sustained. This provision of the decree erroneously applies the law, which declares that "the frequent and constant shuttling of children between divorced parents residing in separate nonadjoining cities does not advance their welfare but rather tends to provoke feelings of instability and insecurity." Stockton v. Stockton, 459 S.W.2d 532, 535(1) (Mo.App.1970); Wood v. Wood, 400 S.W.2d 431 (Mo.App.1966); Kimble v. Kimble, 399 S.W.2d 630 (Mo.App.1966); JGW v. JLS, 414 S.W.2d 352, 359(3) (Mo.App.1967); ML v. MR, 407 S.W.2d 600, 604(11) (Mo.App.1966). As the Court pointed out in Stockton v. Stockton, frequent trips from the home of one parent to the other, even for small boys riding jet airplanes, soon "lose the spice of adventure and degenerate into disquieting chores that unduly disrupt what otherwise would be orderly home and school schedules." As there noted, air travel entails the expenditure of more time than is consumed in flight "and serves to disassociate the boys from desired routines and regular companions", and "these incessant journeys deprive the children of participation in * * * organizational activities in their home community", and are too disruptive for all concerned. In Stockton v. Stockton, the court was considering air flights from Columbia, Missouri to Springfield, Missouri. We are here considering five or more round-trip air flights between Maine to Missouri, entailing travel from Ellsworth, Maine to the nearest airfield booking transcontinental flights, and from Lambert Airport at St. Louis to O'Fallon, Missouri, a considerable distance, and then retracing the three legs of the journey. In Wood v. Wood, supra, 400 S.W.2d l.c. 437, the Court referred to the numerous benefits to a minor child who is afforded a regular and orderly schedule, without undue interruption, thus providing him with an atmosphere in which he can grow and develop in a normal and wholesome manner, whereas constant and...