V.L.P. v. J.M.T., 65262
| Decision Date | 31 January 1995 |
| Docket Number | No. 65262,65262 |
| Citation | 891 S.W.2d 577 |
| Parties | V.L.P., Appellant, v. J.M.T., Respondent. |
| Court | Missouri Court of Appeals |
G. Jeffrey Lockett, St. Charles, for appellant.
Rebecca A. Kaley, Clayton, for respondent.
V.L.P. (Mother) appeals from a judgment of the Circuit Court of St. Charles County, Missouri modifying child custody provisions of a divorce decree by transferring primary custody to J.M.T. (Father). We affirm.
Mother and Father were married in May, 1977. Two children were born of the marriage, J.T., born July 4, 1980, and N.T., born April 16, 1982. The marriage was dissolved February 27, 1987 and primary custody of the children was granted to Mother, subject to reasonable visitation rights and temporary custody to Father.
On July 18, 1988, Father filed a Motion for Contempt against Mother claiming she was depriving him of his temporary custody time with the children and threatening to leave Missouri with them. On August 11, 1988, Mother filed a Motion to Modify Father's temporary custody rights and requested the court's permission to remove the children from Missouri. In October, 1988, Mother and the children moved to Iowa to reside with her new husband, Martin Peterman. Father then filed a cross-motion requesting full custody of the children.
The parties entered into a settlement agreement on July 27, 1989 giving Mother permission to remove the children to Iowa and modifying Father's temporary custody rights. Father was granted visitation on the third and fifth weekends of each month, alternate holidays, Christmas vacation and eight consecutive weeks each summer. The agreement was incorporated into a court order of modification on April 17, 1990.
In October, 1990, Mother, her husband, and the children moved to Milwaukee, Wisconsin without the court's or Father's permission and without filing a Motion to Modify the April 17, 1990 court order. In April, 1991, Mother removed the children from Wisconsin and returned to St. Charles County, Missouri. She then initiated divorce proceedings against her second husband. Mother testified the return to St. Charles and divorce were caused by the discovery of her husband's drug addiction and abuse.
On August 20, 1991, Mother filed a Motion to Modify Father's temporary custody arrangements. She also filed a Motion for Contempt against Father, alleging he owed back child support, had not provided her with information on health and life insurance, refused to pay his share of travel costs for the children, and failed to return the children's clothing and other items at the end of their visit with Father in the summer of 1990. Father filed an answer and cross-petition for full custody of the children. Mother amended her Motion to Modify in November, 1991 and in August, 1992.
Then, on March 29, 1993, Mother amended her motion again and stated she planned to raise the children to observe the traditions, requirements, practices, and observances of the Jewish Orthodox faith, including observation of the Sabbath. 1 Consequently, she wanted to have the children every Friday night at sunset through sunset on Saturday night and limit Father to having the children from sunset Saturday to 8:30 p.m. Sunday. She also stated her plans included placing the children in a private school which would teach and encourage the observance of the traditions and practices of the Orthodox Jewish faith. Father answered the motion by renewing his request for primary custody of the children and alleging Mother was attempting to and continuing to interfere with his time with the children. Father also indicated his belief it was not in the best interests of the children to remain with Mother, to remove them from the St. Charles School District, and to place them in a Hebrew school. Additionally, although he had agreed to raise the children in the Jewish faith, he did not believe it was in their best interests to raise them according to the strict practices of Orthodox Judaism as contemplated by Mother.
In July, 1993, Mother and the children moved from St. Charles County to University City in St. Louis County. Mother testified the move was made so she and her children could follow closely the observant traditions of the Orthodox Jewish faith, including not riding in cars from sunset Friday night to sunset Saturday night. She also placed the children in the Epstein Hebrew Academy, a private school located near Mother's apartment, and arranged for the children to be tutored in Hebrew.
On July 26, 1993 and August 4, 1993, a hearing was held on the issues presented by the motions. 2 Testimony of the parties indicates the oldest child, J.T., suffers from attention deficit disorder and takes medication for the condition. He has bronchial problems, is not doing well in school, and suffers from depression for which he has been going to counseling.
The court allowed both children to testify in chambers. They each testified they cared for both parents and their step-mother, JoAnn Tinsley. They testified the parents and JoAnn Tinsley did not denigrate the other parent to them. They also indicated both parents and JoAnn Tinsley properly disciplined them, urged them to take baths, brush their teeth, and take their medicine.
Additionally, J.T. repeatedly stated to his parents, step-mother, step-sister, step-brother, the Division of Family-Services' Social Worker, and the trial court his unequivocal wish to live with his father. J.T. testified he did not want to live with his mother even if it meant separating from his brother. He also stated he did not want to participate in the Orthodox Observant Jewish traditions and did not want to go to the Hebrew School in University City. J.T. also expressed his dissatisfaction with being tutored in Hebrew twice a day. The younger child, N.T., did not want to choose between his parents and did not have any feelings about attending or not attending the Hebrew School. Both Mother and Father agreed it was in the children's best interest to be kept together.
Based on the above evidence and testimony, a decree modifying the former custody orders and granting Father primary custody was entered on August 30, 1993. This appeal followed.
In her first point on appeal, Mother argues the trial court abused its discretion in determining the children's best interest would be served by awarding primary custody to Father. We disagree.
This court will uphold the trial court's order if it is based on...
To continue reading
Request your trial
-
Ijames v. Ijames
...be fit, appellate courts generally defer to the judge's superior opportunity to see, hear, and evaluate the witnesses. V.L.P. v. J.M.T., 891 S.W.2d 577, 580 (Mo.App.1995). On a motion to modify, the noncustodial parent has the burden of establishing a substantial change of condition which r......
- Midwest Precision Casting Co. v. Microdyne, Inc.
-
Guier v. Guier, WD
...the weight of the evidence, and only then upon a firm belief that the judgment of the trial court was incorrect. V.L.P. v. J.M.T., 891 S.W.2d 577, 579 (Mo.App.1995). In child custody matters the trial court's determination must be given greater deference than in other cases. Humphrey, 888 S......
-
Senciboy v. Thorpe, s. WD
...877 S.W.2d 229, 231 (Mo.App.1994), such that the child will "substantially benefit" from the transfer of custody. V.L.P. v. J.M.T., 891 S.W.2d 577, 580 (Mo.App.1995). Thus, custody modification will be granted only where the child's welfare so requires and not upon a showing of slight chang......