In re Marriage of F

602 S.W.2d 227, 1980 Mo. App. LEXIS 2628
CourtMissouri Court of Appeals
DecidedJuly 8, 1980
DocketNo. KCD 30515
StatusPublished
Cited by10 cases

This text of 602 S.W.2d 227 (In re Marriage of F) 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 F, 602 S.W.2d 227, 1980 Mo. App. LEXIS 2628 (Mo. Ct. App. 1980).

Opinion

SWOFFORD, Judge.

This is an appeal from the judgment below denying the post dissolution motion of the appellant (father) for modification of the dissolution decree to change custody of a minor child born of the marriage from the respondent (mother) to the appellant (father). The background of this case may be simply stated.

The parties hereto were married on November 24, 1965. A son, E_ A_ W_, (hereafter E_), was born of this marriage on August 20, 1971 and was six years of age at the time of the eviden-tiary hearing below giving rise to this appeal. The marriage was dissolved by decree entered on October 29, 1975. This decree awarded the custody of the child to the mother with specifically enumerated visitation rights to the father reflecting approval of a previous agreement as to visitation reached by the parents.

On March 14, 1977, the father filed his motion to modify, seeking custody of the boy, in which he alleged that the circum[229]*229stances and conditions had materially changed since the original decree. The principal thrust of the grounds stated was that since the original decree the mother had engaged in an illicit and immoral relationship, and that such situation continues to the filing of the motion; that such relationship is open, notorious and adulterous; that the mother has declared her intention to marry the man involved; that this situation renders the mother an unfit parent to retain custody of the boy; has had a serious and detrimental effect on the moral, physical and emotional welfare of the child; and requires change of custody to the father. Additionally, the father charged in his motion that the mother had deprived, denied, and interfered with his visitation rights as granted in the dissolution decree, and other charges of neglect of the boy by the mother.1

The motion was heard on December 12 and 13, 1977. The transcript on appeal is 526 pages in length, 24 witnesses testified, and some 27 exhibits were offered. On September 1, 1978, the trial court made extensive findings of fact and conclusions of law, denied the father’s motion to modify, and ordered that the custody of the boy remain with the mother.

The appellant-father raises two points of error upon which his request for reversal depends. He states as Point I, that the trial court erred and abused its discretion in: A. failing to infer that the mother was having adulterous sexual activities in the presence of her six-year-old son; and B. admitting into evidence and giving weight to the mother’s self-serving testimony on cross-examination by her own counsel (denying the fact of IA). He states, as Point II, that the judgment of the trial court is against the weight of the evidence and that the father should be awarded custody of the boy because: A. the court failed to consider the moral fitness of the mother; B. the court erred in finding the mother’s conduct had no affect on the boy; and C. the father is a fit person to be custodial parent.

As could be expected under the circumstances of this case, the testimony on the motion to modify was not only lengthy and at times confusing and contradictory, but also filled with minor grievances, complaints and bickering, all extraneous to the basic issues, and was fraught with conflict in both lay and professional opinions. It became the trial court’s duty to sift through this maze with the tantamount and guiding principle of the child’s best welfare as the clear objective, and to enter such judgment as to the custody of the child as it believed from the facts and law was proper. L_ E_ (S_) v. J_ A_ E_, 507 S.W.2d 681[3-5] (Mo.App.1974), and cases cited therein.

On the other hand, guided by the same principles of the welfare of the child, appellate review of the judgment rendered below is restricted and well-defined. The trial court’s judgment will be sustained unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Appellate courts are further directed to exercise the power to set aside a judgment in a bench-tried case as against the weight of the evidence with caution and only in those instances where a firm belief exists that the decree or judgment below is wrong. Murphy v. Carron, 536 S.W.2d 30, 32[l-3] (Mo. banc 1976); C. B. H. v. R. N. H., 571 S.W.2d 449, 452[1] (Mo.App.1978); In re Marriage of Roedel, 550 S.W.2d 208, 210[1, 2] (Mo.App.1977); Rule 73.01.

Following the basic objective of the child’s welfare and best interests, and applying the stated limits of the scope of appellate review, the pertinent facts revealed by this record may be thus summarized:

Following the dissolution of the marriage of the parties hereto in 1975, the mother was employed in the business office of a plastic manufacturing plant owned and operated by one J_F_, then a mar[230]*230ried man and apparently a very successful manufacturer. Some sort of romantic interest developed between them, and a social as well as business relationship ensued. The appellant-father offered evidence from a private detective and others, that J_ F_ was a frequent visitor at the apartment of the mother, which she and her son (whose custody is now in question) occupied, and that J_ F_ frequently did not leave until late at night or early morning. The mother stated that “sometimes” J_ F_had spent the night in her apartment, and upon such infrequent occasions had breakfast with her and her son. At the time of the evidentiary hearing in the court below, the respondent-mother and J_ F_were lawfully married and lived together with the boy in a family residence in the town where J_ F_’s manufacturing plant was located. The mother continued to work in the business office of the company during the hours her son was in school, and took care of the boy when he was not so engaged. There is no substantial evidence that these home and personal living arrangements following this marriage are anything other than pleasant, comfortable, normal and wholesome.

In the father’s motion to modify the custody award, he charges that his former wife (respondent) “engaged in an illicit and immoral relationship” with J_ F_ and for “some time openly and notoriously" consorted with him “in an adulterous relationship”. In his brief in this Court, as previously noted, he charges the court with error and abuse of discretion for failing to infer from the fact that she invoked the constitutional Fifth Amendment privilege and refused to answer certain questions that her “adulterous, sexual activities” were performed “in the presence of her six-year-old son ”. The record basis for this position comes about by reason of the fact that the father-appellant, in an attempt to sustain the burden of proof placed upon him [In re Marriage of Britton, 574 S.W.2d 475, 476[3] (Mo.App.1978)] called the mother as his witness. During the course of counsel’s direct examination of her (as a hostile witness) a series of leading questions were asked of her, of which the following are typical:

“Q. Did you and J-F-have intercourse in your home while E- was there living in the home?
* * * * * *
Q.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Kean v. Kean
754 S.W.2d 922 (Missouri Court of Appeals, 1988)
In Re the Marriage of Newberry
745 S.W.2d 796 (Missouri Court of Appeals, 1988)
Wilhelmsen v. Peck
743 S.W.2d 88 (Missouri Court of Appeals, 1987)
Cantrell v. Adams
714 S.W.2d 211 (Missouri Court of Appeals, 1986)
Florea v. Florea
688 S.W.2d 373 (Missouri Court of Appeals, 1985)
P.A.(D.)K. v. T.R.D.
662 S.W.2d 583 (Missouri Court of Appeals, 1983)
H v. H
637 S.W.2d 432 (Missouri Court of Appeals, 1982)
Welch v. Welch
633 S.W.2d 447 (Missouri Court of Appeals, 1982)
Robertson v. Robertson
630 S.W.2d 266 (Missouri Court of Appeals, 1982)

Cite This Page — Counsel Stack

Bluebook (online)
602 S.W.2d 227, 1980 Mo. App. LEXIS 2628, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-f-moctapp-1980.