Winters v. Winters

• Decision Date: 04 May 1981
• Docket Number: No. WD,WD
• Parties: In re the Marriage of Jack WINTERS, Appellant, v. Jacqueline C. WINTERS (Barnetski-Gepford), Respondent. 31993.
• Court: Missouri Court of Appeals

Page 585

617 S.W.2d 585

In re the Marriage of Jack WINTERS, Appellant, v. Jacqueline C. WINTERS (Barnetski-Gepford), Respondent.

No. WD 31993.

Missouri Court of Appeals, Western District.

May 4, 1981.

Motion for Rehearing and/or Transfer to Supreme Court Denied

June 2, 1981.

Application to Transfer Denied July 14, 1981.

Charles W. Gardner, Lee's Summit, for appellant.

Richard Rose, Kansas City, for respondent.

Before PRITCHARD, P. J., and TURNAGE and CLARK, JJ.

PRITCHARD, Presiding Judge.

The dispute between the parties concerns the award of custody of three sons born of the marriage, who were born, respectively, December 4, 1963, May 24, 1965, and November 22, 1967. The custody matter was presented on a motion to modify the original 1969 decree.

The parties were divorced on July 9, 1969, and the custody was awarded to respondent mother, subject to appellant father's temporary custody for a period of three months each summer, alternate holidays and all weekends during the school year. Shortly after the divorce, respondent married a person by the name of Barnetski, that marriage being dissolved on October 23, 1979. She then married Gepford, and that marriage subsisted at the time of the hearing.

For some six months prior to March, 1979, respondent was having problems with alcohol. Out of concern for her children, she requested appellant temporarily to take care of the sons, which he did. Respondent then entered Truman Medical Center for treatment of the alcoholic problem, and it was there that she met her present husband, Gepford. Prior to that time, according to respondent, there had been no marital relations between her and Barnetski since October 1977.

The present husband of respondent, Gepford, admitted that he is an alcoholic, and had problems for the last ten years. He underwent treatment for that ailment at several hospitals and facilities. He was self-employed in remodeling, worked also as an employee of a sewer service company, and had earned over $3,000 gross in the past two months. It was his testimony that he had not been drunk for four months prior to the instant hearing, which began on November 21, 1979.

Appellant's wife, Mary Winters, testified that they have three children born of their marriage, ages 6, 4, and 22 months. The three sons of the parties here get along well with those children. She saw Gepford on one occasion in respondent's home lying on the floor embracing one another, and it appeared that they had been drinking. The fourteen year old son had gone up to his room, and she supposed he walked right past respondent and Gepford. Respondent was then married to Barnetski. Mary saw appellant kick in a car radio because it was set on a religious station. He has a temper, and kicks or strikes things when he is angry. He knocked Mary down one time. He drinks about a six pack of beer a week.

Respondent testified that she had not lived with Barnetski as husband and wife for over two years before they were divorced, which occurred in October, 1979. She had a problem with alcohol about the first of 1979, and went twice to Truman East Medical Center for detoxification, 16 days the first time and 12 hours the second. She afterward went twice to Western Missouri Mental Health Center voluntarily for alcoholism. She was drunk for one night in July, 1979, but had not been drunk in the last four months before trial, nor had her husband, Gepford. She was not at the time of trial dependent on alcohol; she has the problem very well in hand, and there was no doubt in her mind that she would ever start drinking as before. "(T)he thought of a drink would practically make me physically ill, just to think of it." In November, 1978, when she started depending upon alcohol as a crutch, she "had not a second" to herself going to school full time; she was having an affair and did not know how to handle it; she was caring for three children; she taught 7 children piano, and she just cracked. Appellant also had her babysit his children 2 or 3 times during the week. Respondent also testified to having an affair with a music instructor from Longview College. According to respondent, appellant paid only a total of $20.00 child support in 1978. Barnetski testified he paid about 10% of child support. There was an answer to interrogatories signed by respondent that appellant had paid $14,940 total toward child support obligations, but she testified that she did not know where that figure came from. The original decree provided for $45.00 per week child support to be paid by appellant except for the summer months when he had custody. That would have been in the neighborhood of $23,000 for the ten year period.

At the close of the initial hearing, the trial court ordered a home study by the Juvenile Court "to see what their thought is on the situation." The hearing resumed on April 18, 1980, and William J. Weiler testified: He was a deputy juvenile officer specializing in custody investigations. He had been employed in that capacity since November 13, 1979. His educational background consisted of a Master's Degree in philosophy, a Master's Degree in theology. He had three years of high school teaching and about eight years of college teaching experience, and twelve years of individual and family counselling. He interviewed appellant twice, once at the latter's home. He also interviewed the 3 children in the large, lower bedroom level of appellant's home separately and privately. He described that home as being in better than average condition. He also visited the very large, old farmhouse in which respondent resided when he interviewed her. He interviewed also those persons who were given as references by both parties. Respondent's information about her medical history corresponded with her medical records which he had. His recommendation to the court was that the children be returned to the custody of their mother, and that the father be given generous visitation rights but not for long periods of time, his concern being that long periods of time might involve appellant's using the children for long periods of hard work. The climate in appellant's home was one of tension and fear, but there were no signs of that in respondent's home.

The children were interviewed separately by the trial court in chambers. One, who would have been 16 years old in two weeks, told the court that he had been with appellant since two weeks before school was out. Living in appellant's home were his two younger brothers, two little stepbrothers, a stepsister and a grandfather spent a lot of time there, besides appellant and his wife. He and his brothers had to live in the rec room, and he did not get along with appellant at all. He whipped the boys when they did not need it with a belt or across the face with his hand. He got mad when the older boy asked him about child support and started whipping him. The boy told him it was a year and a half that he remembered that appellant had paid child support. He whipped the boys because they did not do homework, but according to the boy there was no time to do it because they were out hauling firewood, which appellant sold from his ranch near Butler, Missouri, until 11:00 or 11:30 p. m. He would rather be with respondent, even knowing about Gepford. He told the court that appellant drank as much as respondent.

The son, aged 14, wanted to go with his mother, "(B)ecause from what I have heard she's a lot better." He knew that when he moved in with appellant, respondent had gone to the hospital for "detox". This son was getting along with his father "so-so". "A. Every now and then he gets drunk or something and makes us work. I figure a little too much. Like, you know, his business is mainly real estate, but we have a farm and ranch, and we have to go down there and work a whole lot, and really, you know, I was born in the city and raised in the city. I don't especially care for farm work." His version was that both parties whipped them when they needed it as discipline. He told the court that he was not the type who got in trouble, but his two brothers tended to get in trouble a little more than he, so the smaller brother had been whipped with a belt. Although the boys had to awaken respondent when she slept late, she always fixed breakfast for them. The youngest son also expressed a preference to be with respondent.

At the close of all the evidence, the trial court allowed $500.00 attorney's fees to respondent and remarked, "* * * It's remarkable how well the children have done under the conditions in which they have lived in both the mother's and father's homes. Neither home has anything positive to recommend it. One gets to the question of which is worse. The mother appears to be loving and caring for the children, but is apparently an alcoholic and in a very questionable moral situation. The father of the children never supported them, appears cold, and the children claim he uses them, and this appears true. He also has a violent temper. My observation at the time (original hearing) was, the children should be with the mother if she gets her act together, but in my opinion this probably will not happen. The father is a second choice. Then after that is the time that I ordered the home study which indicates, in the juvenile court worker's opinion, that the mother is in satisfactory condition to take care of the children now, and those are the reasons that I'm entering the judgment that I am." (Brackets added.) The court then entered a judgment finding, "(A)fter hearing the evidence finds that a modification of child custody is not necessary; in that there has not been a substantial and continuing change of circumstances since the original decree of divorce; * * *." Appellant's temporary custody rights were reduced to one month per year during the childrens' summer vacation, to be agreed to by the parties.

Appellant's Point I, in essence, is that the evidence that his having...