In re Marriage of Carmack

550 S.W.2d 815, 1977 Mo. App. LEXIS 2081
CourtMissouri Court of Appeals
DecidedMarch 15, 1977
DocketNo. 37703
StatusPublished
Cited by31 cases

This text of 550 S.W.2d 815 (In re Marriage of Carmack) 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
In re Marriage of Carmack, 550 S.W.2d 815, 1977 Mo. App. LEXIS 2081 (Mo. Ct. App. 1977).

Opinion

DOWD, Judge.

Appellant contests the provisions of a dissolution of marriage decree concerning child custody, division of marital property, and maintenance. Appellant and respondent will be referred to herein as wife and husband, respectively.

The parties were married on May 18, 1961. Dissolution was decreed September 12,1975. The wife’s four children by previous marriages resided with the couple, and a daughter was born to them in 1966.

The husband is employed as an electrical mechanic and has been so employed for the last twenty years. He testified that typical bimonthly paychecks totaled $754 a month. He supplements his income occasionally with odd jobs. His net income in 1974 was $13,600, or approximately $1,133 per month. Although the wife worked prior to the marriage, she has only sporatically worked since, her total employment during the marriage being one month.

The parties own a house and 35 acres of land, purchased for $9,500 and appraised at $17,000. They also own 3 automobiles including one that is inoperable, one 1971 Gremlin, and a 1970 Pontiac. No testimony was given as to the value of the cars, but loans against them total approximately $2,700. The parties also own 3 horses, life insurance worth $500, and household furnishings. Outstanding debts total approximately $7105.71.

Each party accused the other of misconduct. The wife testified that her husband was an unreliable provider, that she could not tell when checks would be returned for insufficient funds, that he threatened her and attempted to physically abuse her. He testified that she visited psychics and fortune tellers, that after these visits she would accuse him of gambling, homosexuality, keeping another woman, and playing a numbers game, that she refused to sign a joint tax return unless a dentist bill was paid, and that she wrote the president of her husband’s company and informed him that the husband had bought electrical items for personal use through the company name.

The court in its decree awarded the husband custody of the nine year old daughter and all the marital property, after payment to his wife of $3,000.00 at the rate of $75.00 per month. The husband was also ordered to pay the outstanding debts. The wife was not awarded maintenance.

We are asked to decide if the trial court abused its discretion by giving the husband custody of the nine year old daughter, by giving the husband an excessive amount of marital property, or by denying the wife maintenance. Our disposition of these three points makes it unnecessary to consider appellant’s allegation of bias on the part of the trial judge.

Supreme Court Rule 73.01 directs us to review this court tried case upon both the law and the evidence, giving due regard to the opportunity of the trial court to judge the credibility of the witnesses. The trial court’s decree is to be sustained 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. Murphy v. Carron, 536 S.W.2d 30 (Mo.Banc 1976); Blessing v. Blessing, 539 S.W.2d 699, 702 (Mo.App.1976). If the appellate court believes that the trial court erred in its decree, it is its duty to enter such judgment as the trial court should have entered. Blessing v. Blessing, supra; In re Marriage of Powers, 521 S.W.2d 949, 954 (Mo.App.1975). Since the record in the present case is complete as to the relevant factors including the financial conditions of the parties, we review the evidence and reach our own conclusion as to the proper judgment to be entered.

Resolution of the child custody issue affects our consideration of the division of marital property and the award of maintenance. The standard for determination [818]*818of who shall have custody is the best interests of the child. § 452.375, RSMo Supp. 1976, In re Marriage of Powers, supra at 925. The trial court did not make a finding that the best interests of the child would be served by placing her with her father, and the record lacks substantial evidence to support such a finding.

Neither party was shown to be an unfit custodian by the evidence adduced at trial. Although each accused the other of misconduct, neither showed misconduct relevant to the other’s fitness to care for the child. The husband alleged that the wife attempted to convince the child that the accusations the wife made against him were true, but he also testified that she had taken good care of the child and had otherwise been a good mother. Other testimony concerning the wife’s misconduct was not relevant to the custodial welfare of the child and should not be considered in determining custody. L_E_S_ v. S_A_ E_, 507 S.W.2d 681 (Mo.App.1974). Custody awards are not to be used as punishment for marital misconduct by one of the parties to the dissolution. McCallister v. McCallister, 455 S.W.2d 31, 35 (Mo.App.1970).

Nor does the record, considered in the light of the factors the trial court was required to consider under § 452.375 RSMo Supp.1976, reveal any family circumstances or patterns to support the award of custody to the father.1 The father did care for the child in the evenings and occasionally on weekends during the separation. However, he did not move for an award of temporary custody during pendency of the proceedings, and did not even seek permanent custody until the day of trial. His only testimony regarding his plans to care for the child was that he intended to hire a babysitter to care for her while he was at work.

On the other hand, the wife was at home to care for the child while the couple was married and she had the child during the separation. The child was raised with the wife’s children by previous marriages and and her testimony in chambers revealed that she considered them to be her “real” brothers and sisters. There was no evidence as to the child’s adjustment to school or the health of the child involved. Nor was there any evidence that the mother had neglected or abused the child or had been anything but satisfactory in caring for the child. The child did not indicate a preference to stay with either parent.

Where, as here, the record shows no abnormal family patterns or unequal circumstances between parents, and neither parent is demonstrably unfit to be custodian, the principle that the mother is the better custodian for a child of tender years is applicable. In re Marriage of Zigler, 529 S.W.2d 909 (Mo.App.1975); S. G. E. v. R. L. J., 527 S.W.2d 698 (Mo.App.1975). This is particularly true where the child is a girl. S. G. E. v. R. L. J., supra at 703; Horst v. McLain, 466 S.W.2d 187 (Mo.App.1971). The rule is merely a judicial statement of a common understanding of normal family relationships which foster the best interests of young children, and is not a conclusive presumption. Johnson v. Johnson, 526 S.W.2d 33, 37 (Mo.App.1975);

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Bluebook (online)
550 S.W.2d 815, 1977 Mo. App. LEXIS 2081, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-carmack-moctapp-1977.