Wilhelmsen v. Peck, 15065

• Decision Date: 31 December 1987
• Docket Number: No. 15065,15065
• Citation: 743 S.W.2d 88
• Parties: Debra L. WILHELMSEN, Respondent, v. Frederick C. PECK, Appellant.
• Court: Missouri Court of Appeals

Page 88

743 S.W.2d 88

Debra L. WILHELMSEN, Respondent, v. Frederick C. PECK, Appellant.

No. 15065.

Missouri Court of Appeals,

Southern District,

Division One.

Dec. 31, 1987.

Wayne Gifford, Waynesville, for appellant.

William W. Hoertel, Hoertel & Hoertel, Rolla, for respondent.

CROW, Chief Judge.

On December 20, 1983, the Circuit Court of Fairfax County, Virginia, entered a "decree of divorce a vinculo matrimonii," awarding Frederick Chapman Peck ("Fred") a divorce from Debra Lynn Peck ("Lynn"). The decree affirmed and incorporated a separation agreement between Fred and Lynn dated August 5, 1983. Pertinent to the issues in the instant appeal, the agreement provided that Lynn should have "sole care, custody and control" of the parties' two sons, Ryan Andrew Peck, born August 17, 1978, and Joshua Robert Peck, born July 17, 1980, "subject to the right of reasonable visitation vested in [Fred]."

On March 19, 1986, Lynn--who had acquired the surname Wilhelmsen by virtue of her marriage to Edwin Lee Wilhelmsen ("Ed") on January 26, 1986--filed in the Circuit Court of Pulaski County, Missouri, a motion to modify the Virginia decree. Lynn's motion averred that Missouri had been the home state of the two children since August 16, 1984, that during the summer of 1985 Fred had exercised his visitation privileges by transporting the children to his home in the state of California, that he had thereafter refused to return the children to Lynn in Missouri, and that he had told her he had authority to keep the children in California because of the word "reasonable" in the Virginia decree. Lynn's motion prayed for an order allowing Fred "specific visitation privileges" and requiring him to pay the children's transportation costs to and from his home when they visit him.

Fred responded to Lynn's motion by filing his own motion to modify averring among other things, that since their divorce Lynn had "openly and notoriously cohabited with one or more men to whom she was not married," and that she had "forced" the two children to live with her during such cohabitation. Fred's motion prayed that the divorce decree be modified by (a) awarding custody of the children to him, subject to reasonable and specific visitation rights in Lynn, and (b) granting him authority to remove the children from Missouri "without further order of this Court or consent of [Lynn]."

On January 21, 1987, the Circuit Court of Pulaski County entered an amended decree providing that primary custody of the children would remain with Lynn. The decree further provided:

"The Court ... orders that [Fred] be allowed visitation with said two minor children for one month each summer, the month to be the month of July in odd numbered years and August of even numbered years.

Further, [Fred] is granted visitation privileges with said two minor children during the Christmas vacation on even numbered years, the visitation to begin the day after the school Christmas vacation begins and is to terminate December 31st of the same year.

[Fred] is further allowed to visit said children and have said children with him during the Thanksgiving holiday in odd numbered years, the visitation to commence at 5:00 o'clock P.M. on the next preceding Wednesday before Thanksgiving, and is to continue until 3:00 o'clock P.M. the next following Sunday, and all such Thanksgiving visitation shall occur within the state of Missouri.

Further, [Fred] is allowed reasonable visitation with said two minor children at all other times.

....

[Lynn] allowed reasonable visitation when children are with [Fred].

[Fred] is hereby ordered to pay all transportation costs for both Ryan Andrew Peck and Joshua Robert Peck from their place of residence to the place of visitation with [Fred] and back again, on those dates and times stated heretofore in this decree."

Fred appeals, briefing four assignments of error. His first maintains that the trial court erred in denying his request that primary custody of the children be placed in him, in that Lynn admitted she had lived in a meretricious relationship with two different men and the children had lived in the same households, and Lynn admitted she had refused to allow Fred visitation with the children during the pendency of the modification proceeding.

Before considering Fred's first point, we note that no issue is raised regarding the jurisdiction of the trial court to make the custody determination, § 452.445(1), RSMo 1986, set forth in its amended decree. Accordingly, we shall assume, without deciding, that the trial court was vested with jurisdiction to do so under the Uniform Child Custody Jurisdiction Act, §§ 452.440.550, RSMo 1986.

Fred, born September 25, 1948, is a graduate of the United States Naval Academy. He entered the United States Marine Corps June 3, 1970, and at time of trial ¹ was a lieutenant colonel assigned to the Marine Corps public affairs office in Los Angeles, California. He and Lynn married December 21, 1974. It was his second marriage, her first. His first marriage, which had ended in divorce, produced a son, Scott, age 18 at time of trial. Custody of Scott had been awarded to Fred's first wife in their divorce decree.

On January 19, 1984, thirty days after his divorce from Lynn, Fred married his present wife, Joanne Lynn Schilling ("Joanne"), a captain in the United States Marine Corps. It was Joanne's third marriage. Her first two produced no offspring.

Lynn, born February 8, 1955, moved into her parents' home in New Johnsonville, Tennessee, after her separation from Fred, taking her two sons with her.

In May, 1984, Lynn, accompanied by the two boys, drove from her parents' home to Virginia, where Joanne, who had wed Fred four months earlier, was finishing some military schooling at Quantico. Lynn's purpose was to enable Fred to pick up the boys there for summer visitation. Fred did so.

In August, 1984, while the boys were still with Fred and Joanne, Lynn moved from her parents' home to Waynesville, Missouri, where she took up residence with one James Stewart, with whom she had become acquainted at some undisclosed earlier time.

After Labor Day, 1984, Fred and the boys flew to St. Louis, where they were met by Lynn. She took the boys with her to the two-bedroom house she was occupying in Waynesville with Stewart, whom the boys had never met. During the quartet's residence there the boys slept in one bedroom; Lynn and Stewart slept in the other.

This arrangement ended in January, 1985, when Lynn and the boys moved into a "cabin" in Devils Elbow, Missouri. About June 4, 1985, Fred and Joanne arrived there and, with Lynn's consent, picked up the boys, taking them to California.

Around the first of August, 1985, while the boys were still with Fred and Joanne, Lynn moved into a "trailer" in Waynesville, owned and occupied by Ed, whom she had met at some unspecified earlier time. Ed, an "over-the-road" truck driver, was married when he and Lynn began cohabiting, but became "divorced" September 9, 1985.

Prior to the start of school in September, 1985, Lynn phoned Fred about returning the boys. At trial, Lynn quoted Fred as saying he "was not bringing them back." Fred testified he told Lynn, "I would send them back at Christmas time and in the summer we could turn our arrangements around."

About September 12, 1985, Lynn and Ed, unbeknown to Fred, arrived in Los Angeles by automobile. Enlisting the aid of the "District Attorney" and the "Sheriff's Department," Lynn secured custody of the boys. She and Ed then drove them back to Waynesville, stopping overnight at a motel. There, Lynn and Ed shared a bed; the boys shared another bed in the same room.

Lynn testified that the night they reached Waynesville she received a phone call from Fred. Lynn's testimony: "He [was] ... rather angry and hostile, and told me that because of the embarrassment I had caused him with the police being there, embarrassing him in front of his neighbors, that he would make me pay; he would get even and if he ever got the children, that I would never see them again."

Lynn, it will be recalled, married Ed January 26, 1986, some seven weeks before she commenced this modification proceeding. Lynn conceded that Fred had asked for visitation during the summer of 1986, while the proceeding was pending, and that she had refused.

In considering Fred's first point, we are mindful that it was his burden to show that a change had occurred in the circumstances of the boys or Lynn since the Virginia decree, and that modification was necessary to serve the best interests of the boys. Ryan v. Ryan, 652 S.W.2d 313, 315 (Mo.App.1983); Knoblauch v. Jones, 613 S.W.2d 161, 165-66 (Mo.App.1981); § 452.410, RSMo 1986.

The first case cited by Fred in support of his first point is In re Marriage of P.I.M., 665 S.W.2d 670 (Mo.App.1984). There, it is said that where there are charges and proof of gross immorality on the part of a custodial parent, and such immorality takes place in the home in which the child is kept, it is unnecessary to await manifestation of harmful consequences to the child before action is taken; it is more sensible to change a child's custody when there is a reasonable likelihood of an adverse effect on the child if he is kept in his present surroundings than to wait until damage is done and then attempt to repair it. Id. at 672.

Fred also directs our attention to H--- v. H---, 637 S.W.2d 432, 434 (Mo.App.1982), for the proposition that in determining whether to modify a custody provision it is proper for a trial court to consider the morals and mode of life of the parties.

The final case on which Fred relies to support his first point is M.L.G. v. J.E.G., 671 S.W.2d 312 (Mo.App.1984), which teaches that while no court can force a parent to observe any particular moral code, the moral fitness of a person seeking custody of a child is a proper subject for a court's consideration, and a critical factor is whether a parent's immoral...