Ijames v. Ijames

611 S.W.2d 41, 1981 Mo. App. LEXIS 2570
CourtMissouri Court of Appeals
DecidedJanuary 13, 1981
DocketNos. 11659, 11705
StatusPublished
Cited by1 cases

This text of 611 S.W.2d 41 (Ijames v. Ijames) 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
Ijames v. Ijames, 611 S.W.2d 41, 1981 Mo. App. LEXIS 2570 (Mo. Ct. App. 1981).

Opinion

FLANIGAN, Judge.

In this proceeding for dissolution of marriage, Ruth Anne Ijames attacks that portion of the decree which awarded primary custody of her son Rex to his father, respondent Burton E. Ijames. The parties are parents of three children, Paul, who was born October 2, 1966, Margaret, who was born September 14,1969, and Rex, who was born January 2, 1979.

The decree was entered on January 8, 1980, three weeks after the trial. By its terms the father was awarded primary custody of all three children. The mother was given temporary custody of them on the third weekend of every month. In addition the mother was given temporary custody for four weeks during the summer with leave to remove them from Missouri during that period. The mother was not required to make child support payments to the father and the father was not required to make child support payments to the mother during her temporary custody.

The mother asserts that the trial court erred in awarding primary custody of Rex to his father because the order “fails to give adequate weight to the tender years presumption and is against the weight of the evidence because it ignores the evidence of the mother’s superior ability to care for Rex.” The mother also contends that the trial court gave undue weight to the general policies of the law which look with disfavor upon separation of a child from his [42]*42siblings and upon removal of a child to another state.

In his cross-appeal the father asserts that the trial court erred in failing to require the mother to contribute to the support of the three children.

The scope of appellate review of the trial court’s order awarding custody of Rex to the father is governed by Rule 73.01 V.A.M.R., as discussed in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976). See Pearson v. Pearson, 575 S.W.2d 934, 935[3] (Mo.App.1978); Johnston v. Johnston, 573 S.W.2d 406, 412[12] (Mo.App.1978); In re Marriage of L_, 548 S.W.2d 262, 263[3] (Mo.App.1977). Under those authorities this court will not reverse the decree unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Setting aside a decree on the ground that it is against the weight of the evidence should be done “with caution and with a firm belief that the decree or judgment is wrong.” Murphy, 536 S.W.2d at 32.

The parties were married to each other twice, first in 1961 and again in 1964. They separated in March 1979. At that time the mother moved from the family home at Ellington to an apartment in Piedmont. She was accompanied by Margaret and Rex, then eight weeks old. Paul expressed a desire to remain with his father and did so. Margaret stayed with her mother two weeks and then returned to the home of her father after differences arose between Margaret and her mother’s landlady. The mother had custody of Rex until the trial.

During the nine months preceding the trial, while the parties were separated, the father and the two older children visited the mother and Rex frequently. About every third weekend the mother permitted the father to take Rex to the family home for a weekend visit. During the pendency of this appeal, with the approval of the trial court, Rex has remained with his mother.

Both sides have filed excellent briefs and most of the salient facts are undisputed. Both parents are employed. The mother earns approximately $13,000 a year as a clerk for the Army Corps of Engineers. The father’s income as a factory worker is approximately $17,000. The mother testified that she was in the process of moving to Little Rock, Arkansas, a move necessitated by an employment promotion.

The mother has been employed since 1970 but, after the birth of Rex, the father objected to her continuing to work. The mother testified that1 she left the family home because she did not love her husband any more.

Before the separation the parties lived in a four-bedroom house located on a 20-acre farm. They had built the house and their equity in the home place was approximately $42,000.

Prior to 1977 the father had a drinking problem and his resultant behavior was at times “obnoxious.” There were four temporary separations. In 1977, however, he began to take a deep interest in religion. He quit drinking and became a frequent church attender.

It was the mother’s testimony that when the father gave up drinking his conduct changed drastically for the better. The note which she wrote him on her departure stated that he was “every day growing into the strongest and best of Christian men.... You are the perfect husband and all a woman could ask a man to be.”

During the first few months following the separation Gladys Brooks, the mother’s aunt, lived at the family home and helped the father take care of the two older children and also Rex when he was there. Mrs. Brooks testified that the relationship between Rex and the two older children was good and that the father was able to take care of Rex and did so with the assistance of Margaret.

In August 1979 the father’s 20-year-old niece, Beverly Ijames, moved into the family home and became the “housekeeper and baby sitter.” Beverly testified that the father takes good care of the children and was able to take care of Rex during the periods he was there.

[43]*43Bertha Schaedig, the father’s sister, testified that she and her husband lived in Jefferson County where both of them were employed. Her husband had been employed at McDonnell Aircraft for 16 years. She testified that she and her husband had offered to move into the Ijames family home, giving up their respective employments, if that was necessary for the proper care of the children.

The original petition of the mother requested custody of all three children but the mother’s trial testimony was that the affection of the two older children for her had been alienated, perhaps unintentionally, and they would be better off with their father. The original pleading of the father requested custody only of the two older children but at the trial he requested custody of all three.

The two older children were interrogated by the court in chambers. Paul testified that the mother had initially written letters to the children every day but the letters decreased and finally stopped. Paul said he telephones her “but she never phones me.” He expressed his preference to live with his father and he wanted his father to obtain custody of Rex. Margaret testified that she preferred to live with her father and her two brothers. She said that her mother “never comes to visit me.” From time to time she telephoned her mother but her mother did not telephone her.

The parents are in their mid-thirties. Rex’s health is excellent and the record does not reflect any physical or mental health problem on the part of any of the persons involved.

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Related

In re the Marriage of Griswold
623 S.W.2d 560 (Missouri Court of Appeals, 1981)

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Bluebook (online)
611 S.W.2d 41, 1981 Mo. App. LEXIS 2570, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ijames-v-ijames-moctapp-1981.