Weinbaum v. Weinbaum

• Decision Date: 10 September 1984
• Docket Number: Nos. 13446,13549,s. 13446
• Citation: 679 S.W.2d 384
• Parties: Beth WEINBAUM, Petitioner-Respondent, v. David WEINBAUM, Respondent-Appellant.
• Court: Missouri Court of Appeals

Page 384

679 S.W.2d 384

Beth WEINBAUM, Petitioner-Respondent, v. David WEINBAUM, Respondent-Appellant.

Nos. 13446, 13549.

Missouri Court of Appeals,

Southern District,

Division Two.

Sept. 10, 1984.

As Corrected Oct. 1, 1984.

Motion for Rehearing or Transfer

Denied Oct. 3, 1984.

Application to Transfer Denied

Nov. 20, 1984.

Frank Susman, Roselee Adlin, Michael Waxenberg, Susman, Schermer, Rimmel & Parker, St. Louis, for petitioner-respondent.

Harvey M. Tettlebaum, Jefferson City, Harold F. Glass, Springfield, for respondent-appellant.

MAUS, Presiding Judge.

The decree dissolving the marriage of the parties to this appeal placed the primary custody of their two young children with the wife. By his second motion to modify the husband seeks primary custody of those children. The trial court denied that relief and entered a judgment defining in detail periods of temporary custody and visitation by the husband. The husband appeals.

A general outline of the facts will be sufficient as background for the initial consideration of those points. The parties were married in September, 1970. Two children were born to the marriage. At the time of trial, Aaron Ross was nine years old and Amy Ellen was five years old. They moved to Rolla in 1975. The husband is a successful businessman. The wife has a degree in elementary education but since the birth of the children has not been employed outside the home.

The marriage was dissolved on March 21, 1980. A separation agreement was approved. As stated, the wife was awarded the primary custody of the children. The husband was "to have right to have children visit him on reasonable occasions." Soon thereafter, the wife filed a motion to modify to permit her to move with the children to Florida. It is apparent from the record she had relatives living in that state. In turn, the husband filed a motion to modify seeking custody of the two children. On July 25, 1980, both motions were denied.

In June, 1980, the mother sold her home in Rolla. In July, 1980, the mother moved to St. Louis. For a short time, she and the children stayed in a motel. In August, 1980, she moved to a townhouse. On August 29, 1982, the wife married Leslie Tzinberg. Mr. Tzinberg has periodic custody of three daughters by his prior marriage. The wife and Mr. Tzinberg purchased and live in a home in Chesterfield. The post dissolution relationship between the wife and husband was described as "strained", "kind of nasty." This relationship apparently exacerbated problems concerning visitation and temporary custody. In turn, those problems caused a further deterioration of the relationship between wife and husband.

Upon moving to St. Louis, the wife had Aaron evaluated by a psychologist. This psychologist commenced treating Aaron. From the fall of 1982 to April, 1983, when it was terminated, that treatment was rendered by twice weekly phone calls. In addition to that treatment, the psychologist acted as mediator between the parties in regard to their differences concerning visitation and periods of temporary custody. The psychologist prepared written plans or schedules for the parties to follow in this regard. For a time, the recommendations of the psychologist concerning visitation and custody were generally followed.

While the wife lived in Rolla, the husband attempted to visit the children every day. After the hearing of July 25, 1980, the husband had custody of the children on alternate weekends. He also had temporary custody for two months in the summer of 1981 and for two months in the summer of 1982. There is some reference in the transcript that these periods of temporary custody were pursuant to a court order. However, no such order is a part of the record. There was also an indication from the transcript these periods of temporary custody were in accordance with the plans of the psychologist. In August, 1982, the wife agreed that Aaron could stay with his father that fall on a temporary basis. The husband contended she agreed that his custody could be transferred to the husband.

On August 31, 1982, the husband filed a motion to modify that instituted this proceeding. That motion was accompanied by an application for a temporary restraining order preventing the wife from removing Aaron from the physical custody of the husband. That application was supported by an affidavit of the husband and an affidavit of the psychologist. A temporary restraining order was entered that day. On September 8, 1982, by stipulation, a temporary injunction to the same effect was entered. The latter provided for each parent to have temporary custody of both children on alternate weekends. This custody arrangement continued to the date of the decision of the trial court. Concerning the husband's continued custody, the wife testified, "I think--my consideration of him being down there was the biggest mistake of my life that I have ever made."

By subpoints, the husband contends the judgment of the trial court is against the weight of the evidence and is against the best interests of the children. While this statement does not comply with Rule 84.04(d), because of the issues involved, the subpoints will be accepted as a contention the trial court erred in not granting the modification prayed. Neither party requested findings of fact under Rule 73.01(a)(2). None were made. In considering this point, this court must consider the fact issues as having been found in accordance with the result reached. Rule 73.01(a)(2).

To support these subpoints, in argument the husband stresses the following. The wife's acquiescence in his custody of Aaron. Aaron's happiness and improvement in school in Rolla. The wife's remarriage to a man with whom Aaron did not get along. Aaron's pleasant surroundings and associations in Rolla. During the trial, the husband, by extensive questioning, attempted to establish his devotion to the children by visitation and daily phone calls. He emphasized the fact the wife and the step-father listened to and taped some of those phone calls. He presented in detail his activities and close association with Aaron. Neither child testified. However, by cross-examination of the wife, the husband placed before the court the fact Aaron preferred to live with him.

The husband's reliance on this evidence discounts evidence which would support the following findings and inferences by the trial court. The temporary injunction continuing the husband's physical custody of Aaron was entered upon a stipulation that it would not waive any position either party might have in connection with the motion pending before the court. The husband agreed it was undesirable to separate the children. Aaron did well in school in St. Louis. He had friends in the St. Louis school and in his home neighborhood in St. Louis. He was well prepared for the third grade when he entered school in Rolla. The step-father testified that he did not really know Aaron. He did stop Aaron from strangling his sister and promised to spank him if that happened again. That conduct stopped. The husband's phone calls included repetitive entreaties and questions such as: "Do you love me;" "do you miss me;" "I wish you were here;" "what did your mother do today;" "are you having a good time in St. Louis?" After the calls, the children would be upset. The husband also taped calls between himself and the children and the wife and the children. The husband brought a witness each time he returned or picked up the children in St. Louis. According to Aaron, this was so the husband could get Amy. Following association with the husband, Aaron was hostile to the wife. Following the husband's temporary custody of Aaron, Aaron announced to his mother, "We're going to get Amy, it's just a matter of time, Dad talked to the Judge, and we're going to get her."

The burden was upon the husband to establish "a substantial change of conditions which necessarily requires a change of custody to serve the best interests of the child." Cole v. Cole, 664 S.W.2d 653, 655 (Mo.App.1984). The evidence did not compel the trial court to find the husband met that burden.

By a related subpoint, the husband contends the trial court did not follow the law in measuring the sufficiency of the evidence. Upon the conclusion of the trial on July 12, 1983, the trial court took the case under advisement. On August 10, 1983, the trial court made an extensive docket entry which included the following language: "Court finds there has been no significant change of circumstances since the previous order of this court entered 7-25-80 to warrant a change in custody of the minor children of this marriage to wit: Amie [sic] and Aaron Weinbaum." The docket entry also contained detailed provisions concerning visitation and temporary custody by the husband. It did not include an express finding concerning the best interests of the children.

On August 12, 1983, a formal judgment was signed by the trial judge and placed upon the record. The formal judgment contained the following language: "No change as envisioned by Mo.R.S. § 452.410 has occurred in the circumstances of the parties' children or Petitioner [Beth] since the Court's order of July 25, 1980 and modification of custody is not necessary to serve the best interests of the children."

The husband contends the docket entry is a judgment. He further argues that he had no notice of the entry of the formal judgment as required by Rule 75.01 and cases such as Byrd v. Brown, 613 S.W.2d 695 (Mo.App.1981). Therefore, he concludes, the formal judgment entry is void.

The husband is correct in saying that a judgment may be rendered by a docket entry. Sears v. Norman, 543 S.W.2d 300 (Mo.App.1976). In this case there was no expressed reservation of finality pending the preparation of a formal judgment. Compare Orgill Bros. and Co., Inc. v. Rhodes, 669 S.W.2d 302 (Mo.App.1984); Munn v. Garrett, 666 S.W.2d 37 (Mo.App.1984). It was not a statement of intention to...