Becker v. Becker

745 S.W.2d 229, 1987 Mo. App. LEXIS 5110, 1987 WL 3243
CourtMissouri Court of Appeals
DecidedDecember 22, 1987
DocketNo. 52739
StatusPublished
Cited by1 cases

This text of 745 S.W.2d 229 (Becker v. Becker) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Becker v. Becker, 745 S.W.2d 229, 1987 Mo. App. LEXIS 5110, 1987 WL 3243 (Mo. Ct. App. 1987).

Opinion

GRIMM, Judge.

Father appeals the denial of his motion to remove the minor children from Missouri to Texas; and the transfer of their custody to mother, as well as the award of child support and attorneys’ fees to mother. We affirm.

Father raises three allegations of error. First, that the trial court erred in denying his motion to remove the parties’ minor children from the state and in transferring custody of the children to mother, saying that the trial court ignored the best interests of the family and focused solely on the preferences of the minor children. We disagree, because there was sufficient evidence for the trial court to find a change of circumstances and that transfer of custody was in the children’s best interests. Second, that the trial court erred in ordering father to pay mother $400 per month per child for child support since mother introduced no evidence of the expenses for the children and she was able to contribute to their support. We disagree, because the amount of child support to be awarded rests within the sound discretion of the court, its judgment must be affirmed unless the evidence is “palpably insufficient” to support it, and the evidence was not “palpably insufficient.” Third, that the trial court erred in ordering father to pay $1,600.00 toward mother’s attorney’s fees because she is better able to pay her own fees and she failed to establish the necessary circumstances to support such an award. We disagree, because awards of attorneys’ fees are in the broad discretion of the trial court, may be overruled only if there is a manifest abuse of discretion, and we do not find such abuse. Kieffer v. Kieffer, 590 S.W.2d 915 (Mo. banc 1979).

The 1979 dissolution decree awarded custody of the couple’s two children, a son born in 1972, and a daughter bom in 1974, to mother. Father was awarded visitation and temporary custody and was ordered to pay $250 per month per child for support.

In 1981, mother filed a motion requesting permission to remove the children from Missouri and take them to Florida with her and her husband. Father, in response, filed a motion seeking custody of the children. In denying mother’s request and granting father’s motion, the court, in its findings of fact, stated that both children are good students, “both maternal and paternal grandparents of the children live in the St. Louis area and both sets of grandparents have a close relationship with the children, seeing them frequently and caring for them from time to time,” and that it was not in the best interests of the children for them to move to Florida.

Later, mother moved back to St. Louis from Florida so she could be close to and spend more time with the children, and in February, 1983, she filed a motion seeking custody of the children. In its December, 1984, order denying her request, the trial court determined that there had not been a change of circumstances to justify the transfer of custody. However, it is noted that the court found both mother and father are “fit parents” and “though the minor children wish to live with [mother], their wishes are only a single factor and not controlling, especially in view of their present ages and the reasons expressed by them.” Specific visitation periods were established for mother.

In April, 1986, father, a former associate professor at the University of Missouri at St. Louis, filed a motion seeking permission to remove the children from Missouri to Texas, where he had taken a position with North Texas State University. Mother, in response, filed a motion which requested custody of the minor children.

[231]*231At trial, father testified that he wanted the children to move to Texas because he believes it is important to keep the family unit together. He explained that the family participated in many activities together, attends church regularly, and that his second wife has a good relationship with the children. Father said that his children get along well with his wife’s daughter who was born in 1978, as well as their son, who was bom in November, 1984. Father participated in numerous activities with the children.

Dr. Ann Dell Duncan, a licensed clinical psychologist, to whom father had been referred by his attorney, described tests and the results of interviews conducted with father, his wife, and the children. As to the children of the parties, Dr. Duncan described them as being normal in intelligence, as well as flexible. Both children expressed to her their desire not to go to Texas, but rather to stay in St. Louis. They gave as reasons the desire to be with their friends, relatives, and mother, as well as that théy like St. Louis. Dr. Duncan thought both children could handle the move to Texas, and that it would be in their best interests to move because the daughter is emotionally bonded to father’s family unit and the son needed a male to whom he has an emotional attachment and who also sets rules and boundaries.

The court interviewed both children. Both children advised the court that they wanted to stay in St. Louis. If father had stayed in St. Louis, daughter would not want to change her living arrangement. However, the son gave conflicting answers about whether he wanted to remain with his father if his father was not moving to Texas.

On behalf of mother, Dr. Roger L. Gen-nari, a licensed clinical psychologist, testified about interviews he conducted with mother and the two children. Both children expressed their desire to remain in St. Louis. He expressed the opinion that it would be in the best interest for them to remain in St. Louis with their mother, which would promote stability in their lives.

Mother testified that she would be able to be at home with the children and would not need to work because of her estate from her late husband. She would have the daughter attend a nearby parochial grammar school, while the son would attend a parochial high school.

Father, when he left UMSL, was earning approximately $45,000.00 a year, assuming he taught both the regular school year and summer. At North Texas State, for a similar period, he will receive $72,000.00.

Mother, although not employed outside the home, has earnings from municipal bonds of approximately $18,000.00 a year. She also expects to receive about $225,-000.00 from her deceased husband’s estate.

Murphy v. Carron, 536 S.W.2d 30, 36 (Mo. banc 1976), established that, in court tried cases, the judgment of the trial court will be sustained by an appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Appellate courts were admonished to “exercise the power to set aside a decree or judgment on the ground that it is ‘against the weight of the evidence’ with caution and with a firm belief that the decree or judgment is wrong.”

Father first claims that the trial court erred in denying his motion for permission to remove the parties’ minor children to Texas and in transferring custody of the children to mother. Father specifically argues that the court erroneously focused solely on the preferences of the children and ignored the best interest of the family.

Section 452.410 RSMo 1986 controls changes of custody and provides that a trial court “shall not modify a prior custody decree unless ... it finds, upon the basis of facts that have arisen since the prior decree ...

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Bluebook (online)
745 S.W.2d 229, 1987 Mo. App. LEXIS 5110, 1987 WL 3243, Counsel Stack Legal Research, https://law.counselstack.com/opinion/becker-v-becker-moctapp-1987.