Ficker v. Ficker

62 S.W.3d 496, 2001 Mo. App. LEXIS 1883, 2001 WL 1262391
CourtMissouri Court of Appeals
DecidedOctober 23, 2001
DocketED 77871
StatusPublished
Cited by8 cases

This text of 62 S.W.3d 496 (Ficker v. Ficker) 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
Ficker v. Ficker, 62 S.W.3d 496, 2001 Mo. App. LEXIS 1883, 2001 WL 1262391 (Mo. Ct. App. 2001).

Opinion

WILLIAM H. CRANDALL, JR., Presiding Judge.

Husband, Dale Ficker, appeals from the judgment of the trial court dissolving his marriage to wife, Carroll Ficker. We affirm.

The parties were married in 1985 and separated in 1999. Four children were born of the marriage: Justin in 1987, Amy in 1989, Shawn in 1991, and Mary in 1995. Throughout the marriage, wife stayed at home and spent an extensive amount of time with the children. She home schooled the children and attended to all their needs, including medical. At the time of trial, the children were attending public school. Throughout the marriage, husband was employed outside the home, sometimes working six days a week. He was in charge of the children’s religious instruction. In a letter written to wife after she requested the divorce, husband apologized for his conduct during the marriage. The letter read in part:

Please forgive me for the total lack of compassion and love. I’m so sorry for cutting & putting you down so many times, complaining how you did things .... for thinking I knew what was always right and being so bossy always .... for being so controlling, I thought I new [sic] it all . •... for shouting and yelling so many times at you and the kids, ... being angry is so so [sic] very terrible .... for not taking time out alone with you personally and as a family.... I wish I would have tried alot [sic] more to build a loving caring relationship with you and the kids, boy I really messed up....

Prior to, and throughout most of, the marriage, the parties were involved in the Church Universal and Triumphant (hereinafter church). There was extensive testimony at trial regarding the beliefs and practices of the church. Over time, wife began to view the organization as a cult and curbed the family’s participation in the church. At trial, husband stated that he was no longer a member of the church. An expert, a psychologist and former church member, testified about the cult nature of the church and about the negative impact of religious cults on the development of the children. The expert also stated that in child custody cases, the church instructed its members to he about their affiliation with the church. The court appointed a Guardian Ad Litem (hereinafter GAL) to represent the interests of the children.

The Family Court Commissioner (hereinafter commissioner) entered findings and recommendations. The commissioner, among other things, awarded wife child support and maintenance; divided the marital property and debts; and awarded joint legal custody to both parties and primary physical custody to wife, with temporary custody and visitation to husband. Husband filed a motion to amend the judgment or, in the alternative, a motion for rehearing before an Article V judge pursuant to section 487.030.2, RSMo (2000). The trial court denied the motions and entered judgment, adopting and con *499 firming the commissioner’s findings and recommendations.

In his first point, husband asserts the trial court erred in admitting testimony about the beliefs and practices of the church. His challenge to the admission of such testimony is two-pronged: it not only was inadmissible evidence, but also played a critical role in the court’s decision.

Our review is governed by the principles enunciated in Murphy v. Car-ron, 536 S.W.2d 30, 32 (Mo. banc 1976). We do not retry the case, rather we accept as true the evidence and reasonable inferences therefrom in the light most favorable to the prevailing party and disregard contradictory evidence. L.J.B. v. L.W.B., 921 S.W.2d 23, 24 (Mo.App. E.D.1996). We recognize the superior position of the trial court to judge factors such as credibility, sincerity, character of the witnesses, and other intangibles that are not revealed in a trial transcript. Id.

In litigation involving the issue of child custody, the welfare of the children is the paramount consideration. Babe v. Babe, 784 S.W.2d 898, 899 (Mo.App. E.D.1990). Because the trial court has an affirmative duty to determine what is in best interests of the children, we presume that the custody decision is motivated by what the court believes is best for the children. Id. We therefore accord the court’s determination greater deference than in other cases. Id. Thus, an appellant faces a heavy burden to overturn the trial court’s decision relating to an award of child custody. Id.

A court’s inquiry into religious beliefs per se is unquestionably improper. Edwards v. Edwards, 829 S.W.2d 91, 93 (MoApp. E.D.1992). Any suggestion that a state judicial officer was favoring or tending to favor one religious persuasion over another in a child custody dispute would be intolerable to our system of law. Waites v. Waites, 567 S.W.2d 326, 333 (Mo. banc 1978). Judges should not even give the appearance of such preference or favor. Id. But, inquiry into matters of child development as impinged upon by religious convictions is permissible. Id. Moreover, the admission of improper evidence is not ordinarily a ground for reversal in a non-jury case where it does not appear to have played a critical role in the court’s decision. Edwards, 829 S.W.2d at 92.

In the instant action, there was substantial evidence that the church was not a religion, but was in actuality a cult. There also was evidence that religious cults have an adverse impact on the development of children. Based upon that evidence, the court did not err in admitting evidence regarding the church’s practices and beliefs. See Edwards, 829 S.W.2d at 93.

Even if we assume that the trial court improperly admitted evidence regarding religion, the record as a whole does not support the conclusion that such evidence played a critical role in the court’s decision to award wife primary physical custody. There was substantial other evidence in the record to support the court’s decision. At husband’s request, mother remained at home during the marriage until the pen-dency of this action. She spent an extensive amount of time with the children, caring for them and home schooling them. In contrast, husband was employed out of the home and sometimes worked overtime. The court concluded that wife had been “the caregiver to the children, ahnost exclusively, in regards to their schooling and rearing within the home, with [husband] setting many of the rules, which [wife] would then implement.” This is not a situation where the trial court’s reason for awarding custody was the religious persuasion of either party. But see Waites, 567 *500 S.W.2d at 326 (mother’s identity as a Jehovah’s Witness was basis for awarding custody of the children to father). Rather, there was sufficient evidence in the record that the best interests of the children would be served by awarding primary physical custody to wife.

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Bluebook (online)
62 S.W.3d 496, 2001 Mo. App. LEXIS 1883, 2001 WL 1262391, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ficker-v-ficker-moctapp-2001.