Gant v. Gant

923 S.W.2d 527, 1996 Mo. App. LEXIS 987, 1996 WL 309526
CourtMissouri Court of Appeals
DecidedJune 11, 1996
DocketWD 51555
StatusPublished
Cited by10 cases

This text of 923 S.W.2d 527 (Gant v. Gant) 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
Gant v. Gant, 923 S.W.2d 527, 1996 Mo. App. LEXIS 987, 1996 WL 309526 (Mo. Ct. App. 1996).

Opinion

SMART, Judge.

The issues presented in this dissolution action concern the award of child custody and the visitation schedule. April Gant appeals from the trial court’s award of child custody in which the court awarded joint legal custody of the minor children and named Frank Gant as the primary residential custodian. On appeal, April Gant claims that (1) the trial court abused its discretion by awarding primary physical custody to Frank Gant in light of the evidence of domestic violence; and (2) the trial court abused its discretion in its order of visitation.

Judgment is affirmed.

Frank (“husband”) and April (“wife”) Gant were married on February 28, 1991. They already had one child, a son, “Frankie,” at the time of their marriage. On December 30, 1992, they had their second child, a daughter. The parties separated on June 10, 1993. At that time the children were approximately three and one years of age. On August 9, 1993, wife filed her petition for dissolution. Husband filed his answer and counter petition on September 2, 1993. On September 9, 1993, the trial court entered a temporary visitation order stating that the parties would have shared custody of the children alternating every two weeks until the hearing. A hearing was conducted on November 22, 1993. The sole issue before the trial court was the custody of the minor children. Prior to the hearing, the parties resolved all other issues, including marital property division and debt apportionment.

At the hearing, wife testified that she was living in St. Paul, Minnesota with her parents. She stated that she intended to move into an apartment as soon as she could find a job in her field of training. Wife is a recent college graduate and she works for the Riv-ertown Trading Company. Wife’s mother is a licensed day care provider and runs her own day care center out of her home. During wife’s two week visitation periods, her mother cared for her children, while wife worked. Wife’s father has been a fire fighter for eleven years. Her parents previously had a drug problem, but the testimony was that they sought professional help and have not used drugs since 1988.

Wife maintained that husband was not a fit and proper person to have custody of the children. Wife stated that husband had a violent nature and was emotionally unstable. During the course of the marriage, wife stated that husband had damaged numerous items during fits of rage, including smashing two wrist watches with a baseball bat; smashing a television set with a chair; smashing a boom box radio with a baseball bat; slicing up a baseball cap with a box cutter; smashing an alarm clock; and punching a closet door until it splintered. She testified that sometimes during arguments, husband grabbed her by the arm or “smacked up on her.” According to wife, on one occasion, husband had ripped her pajamas when he grabbed her by the arm and in the process his finger poked her in the *529 eye and broke a blood vessel. Wife also claimed that one time husband grabbed her by the face and pushed her over the arm of a couch while she was holding her six-month-old baby. She claimed that husband had often threatened her physically and threatened to kill her ten to twelve times throughout the marriage. She claimed that husband had been physically violent with at least three other men before and during the marriage. Wife claimed that husband raped her a number of times during the marriage. She further claimed that husband had told her approximately fifteen times during their relationship that he wanted to kill himself.

Husband admitted to some of wife’s assertions, but disputed much of wife’s testimony. Husband admitted that he smashed the watches, radio, television and alarm clock. He admitted that he had gotten into some fights with other men. Husband denied wife’s allegation that he threatened to kill her ten to twelve times. He admitted that on one occasion he stated that sometimes she made him want to kill her. He denied that he ever was suicidal or that he told wife he was going to kill himself. He admitted that he sometimes told wife that “he didn’t want to be here.” He stated that he made these statements because it was a way of getting her to pay attention to him. He admitted that he had poked wife in the eye, but said it was an accident. He also admitted holding wife by the jaw and tilting her back on the couch, but he claims that she was not holding their infant at the time. Husband testified that he never hit wife. He denied ever raping wife. He testified that he had changed and admitted that his past behavior was childish.

Husband testified concerning wife’s alleged unfitness. Husband claimed that wife lied to him continually, which wife admitted. Twice wife came to Kansas City from Minnesota and took the kids back to Minnesota without telling husband of her intentions. Husband testified that throughout the marriage he typically did all the cleaning, laundry, and the majority of the cooking. Both parties were in school full time and worked. He testified that wife would tell him she was lazy and when he asked her to start helping with some of the' chores, she replied that she would try, but she never did. He testified that he was concerned about how wife handled the children’s hygiene. He stated that sometimes she would not give them a bath for four days and she sometimes failed to brush their teeth everyday. He was concerned about the food wife fed the children. After the separation, husband testified that the children would often come home after visiting their mother sick with colds, ear infections or diaper rashes. After one visit with his mom, Frankie would not mind his father. Frankie was talking “street talk” and referring to women he saw on television as “sexy.” Husband testified that he took an active role in raising his kids. He stated that during one seven month period while he was unemployed he stayed home and was the primary caretaker of the children.

Brenda Wesley, the children’s “nanny,” testified that she had a close relationship with both husband and wife. She also testified that the kids would often come back from their visits with their mom sick and that they generally looked like they had lost weight. She stated in her opinion that the interests of the children would be best served if husband had primary physical custody of the children. She claimed that she had never seen a 25 year old man take better care of his kids than husband had done.

On December 29, 1993, the trial court entered its order granting the parties joint legal custody, naming husband as the primary custodial parent and granting wife specific visitation. Wife filed an appeal from the trial court’s order. On February 7, 1995, this court remanded the case and instructed the trial court specifically to find whether a “pattern of domestic violence” occurred as that term is used in § 452.375.2(5), RSMo 1994. Gant v. Gant, 892 S.W.2d 342 (Mo.App.1995). This court directed that if the trial court found that there was a pattern of domestic violence, and if the court again awarded custody to husband, the court was instructed to enter specific findings of fact and conclusions of law as required by § 452.375.2(5). On remand, the trial court found, inter alia, that (1) domestic violence occurred; (2) husband had changed and had *530

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Bluebook (online)
923 S.W.2d 527, 1996 Mo. App. LEXIS 987, 1996 WL 309526, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gant-v-gant-moctapp-1996.