Byars v. Byars

593 S.W.2d 656, 1980 Mo. App. LEXIS 2410
CourtMissouri Court of Appeals
DecidedJanuary 24, 1980
DocketNo. 10860
StatusPublished
Cited by9 cases

This text of 593 S.W.2d 656 (Byars v. Byars) 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
Byars v. Byars, 593 S.W.2d 656, 1980 Mo. App. LEXIS 2410 (Mo. Ct. App. 1980).

Opinion

MAUS, Judge.

The parties to this dissolution action were married March 31, 1963, in the City of St. Louis. They had two children, Timothy A. Byars, born November 23, 1963, and Melinda A. Byars, born December 20, 1964. Until their separation the parties resided in St. Louis. The husband has worked for Cocher Drayage in St. Louis since August 13, 1966. In 1975 he made $17,000 from his employment and in July, 1977, was earning $8.50 per hour. The parties were having domestic difficulties and separated on the evening of August 24, 1974, when the husband was escorted from the marital residence by police officers. The husband filed his petition to dissolve the marriage on September 6, 1974, in Dent County, Missouri. At the time of separation the children were in the custody of the wife and remained in her custody until the first hearing upon the petition. After a series of delays this first hearing, which was a plenary hearing, was held on August 4, 1976. At that time the trial court dissolved the marriage; took the question of the property division under advisement and directed the parties to submit proposed orders; awarded temporary custody of the children to the paternal grandparents and directed a home study. A second hearing was had on July 1, 1977, followed by a judgment dissolving the marriage, disposing of the issues of maintenance and property interests and awarding custody of the children to the father “provided they live in the home of the paternal grandparents”. The wife was granted reasonable visitation and temporary custody for 30 days each summer and, in alternate years, during the school Christmas vacation. The wife appeals.

In reviewing appellant’s points on appeal, “[w]e review the case on the law and the evidence under Rule 73.01 giving [658]*658due regard to the trial court’s opportunity to adjudge the witness’ credibility and aware that the judgment may not be set aside unless it is against the weight of the evidence, wrongly declares or applies the law, knowing that our power to set aside a decree as against the weight of the evidence must be exercised with caution and on ‘a firm belief that the decree or judgment is wrong.’ ” In re Marriage of B_ A_ S_, 541 S.W.2d 762, 763 (Mo.App.1976); Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). No findings of fact were requested under V.A.M.R. Civil Rule 73.01, Subd. 1(b). “[A]ll fact issues will be deemed found in accordance with the result reached and the judgment will be affirmed if it is correct on any reasonable theory supported by the evidence.” Roth v. Roth, 571 S.W.2d 659, 664 (Mo.App.1978).

The wife first argues the court erred in determining the husband was a resident of Dent County at the time he filed his original petition on September 6, 1974. Section 452.300, Subd. 1, V.A.M.S. in part provides: “[T]he proceedings shall be had in the county where the plaintiff resides”. The term “resides” is equivalent to being “domiciled in”. In re Marriage of Bradford, 557 S.W.2d 720 (Mo.App.1977). A domicile is “that place where a person has his true, fixed and permanent home and principal establishment to which, whenever he is absent, he has the intention of returning”. Fowler v. Clayton School District, 528 S.W.2d 955, 957 (Mo.App.1975). At the time of the separation the husband’s parents were living on 99 acres in Dent County titled in the names of the parents and the parties to this action. They were living in a mobile home purchased by the respondent. Upon the separation, the husband was in a position to select a domicile of his choice. Nichols v. Nichols, 538 S.W.2d 727 (Mo.App.1976). He returned to his parents’ home the weekend following the separation and did so each weekend, with the exception of three weekends, from that time to the time of the final hearing. The fact the respondent continued to work in St. Louis does not nullify a change in domicile. State ex inf. Reardon v. Mueller, 388 S.W.2d 53 (Mo.App.1965). In view of his testimony that upon the separation he intended to make his home with his parents, there was substantial evidence that at the time the petition was filed the respondent was a resident of Dent County. Nichols v. Nichols, supra.

The appellant then cites the fact the recitals in the final decree were to the effect the respondent was a resident of Dent County at the time he filed his first amended petition and argues there has been no determination of residence at the time the original petition was filed. The appellant in her answer denied the respondent was a resident of Dent County. The entry made at the conclusion of the first hearing includes the following: The “court finds that at the time the petition was filed, petitioner was a resident of Dent County.” Some five months later the appellant filed her motion to dismiss alleging the respondent was not a resident of Dent County. The court considered the motion and overruled it, noting that the court had found the petitioner a resident of Dent County at the time the petition was filed. If the final decree had contained no finding concerning residence, the decretal portion of that decree would have implied a determination of venue. Lee Holding Company v. Wentzville Oil Company, 409 S.W.2d 210 (Mo.App.1966). “ ‘An obscure judgment entry may, however, be construed with refer- . ence to the pleadings and record, and, where on the whole record its sense can be clearly ascertained, the judgment will be upheld.’ ” State ex rel. Whatley v. Mueller, 288 S.W.2d 405, 410 (Mo.App.1956). “Moreover, in construing a judgment, reference to the record as a whole, including any memorandum by the trial court, should be made in order to determine if the judgment has left any issues undecided.” Cady v. Hartford Fire Ins. Co., 554 S.W.2d 499, 501 (Mo.App.1977). The finding implied by the de-cretal portion of the final decree and expressly determined by the court in two occasions is not abrogated by the not conflicting, but superfluous recital in that decree. Donelson v. Board of Zoning Adjustment, [659]*659368 S.W.2d 728 (Mo.App.1963). The appellant’s point that the trial court did not find the petitioner was a resident of Dent County when the petition was filed is denied. Wegman v. Fendelman, 333 S.W.2d 290 (Mo.App.1960).

The appellant’s next point is that the trial court erred in placing the children in the custody of the respondent, provided they live with their grandparents. In determining custody, the trial court is directed to consider all relevant factors, including those specifically set forth in § 452.375, with primary concern for the welfare of the children. L. H. Y. v. J. M. Y., 535 S.W.2d 304 (Mo.App.1976).

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Bluebook (online)
593 S.W.2d 656, 1980 Mo. App. LEXIS 2410, Counsel Stack Legal Research, https://law.counselstack.com/opinion/byars-v-byars-moctapp-1980.