In Re Marriage of Scobee

667 S.W.2d 467, 1984 Mo. App. LEXIS 3669
CourtMissouri Court of Appeals
DecidedMarch 16, 1984
Docket13069
StatusPublished
Cited by23 cases

This text of 667 S.W.2d 467 (In Re Marriage of Scobee) 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 Scobee, 667 S.W.2d 467, 1984 Mo. App. LEXIS 3669 (Mo. Ct. App. 1984).

Opinion

CROW, Judge.

The marriage of appellant (“Ann”) and respondent (“Larry”) was dissolved June 1, 1981. The judgment awarded custody of their only child, Amanda Brooke Scobee (“Mandy”), born September 3, 1978, to Ann. Larry was awarded reasonable visitation rights, and was ordered to pay Ann $50 per month child support.

On May 20, 1982, Ann filed a motion to modify the judgment, praying that the child support be increased to $300 per month. She also asked that Larry be ordered to pay her attorney’s fee.

Larry countered with a motion to modify, praying that he be granted custody of Mandy, and that his duty to pay child support be terminated.

An evidentiary hearing was held November 30, 1982, after which the trial court entered judgment transferring custody of Mandy to Larry. Ann was awarded reasonable visitation rights and certain specific periods of temporary custody. Larry’s child support obligation to Ann was ordered terminated upon payment of a $300 arrearage. Ann’s request for attorney fees was denied.

Ann appeals, asserting the trial court erred in (1) changing custody of Mandy, in that the evidence was insufficient to establish a change in the circumstances of Ann or Mandy, and (2) refusing to increase the child support, in that there was substantial uncontroverted evidence that Ann’s expenses for raising Mandy had substantially increased, rendering the original award of $50 per month unreasonable.

In considering the first assignment of error, we observe that a trial court’s judgment ordering a change in custody of a child may be reversed on appeal only if the judgment is not supported by substantial evidence, is against the weight of the evidence, or results from an erroneous declaration or application of the law. In re the Marriage of Griswold, 623 S.W.2d 560, 561[1] (Mo.App.1981); Galeener v. Black, 606 S.W.2d 245, 246-47[2] (Mo.App.1980). Where there is a conflict in the evidence, the trial court has the prerogative to determine the credibility of the witnesses, accepting or rejecting all, part or none of the testimony. Ware v. Ware, 647 S.W.2d 582, 583—84[2] (Mo.App.1983); Trunko v. Trunko, 642 S.W.2d 673, 674-75[2] (Mo.App.1982). With reference to the sufficiency of the evidence, we must accept as true the evidence and permissible inferences favorable to the judgment, In the Interest of 592 S.W.2d 862, 863[1] (Mo.App.1979), and disregard the contradictory evidence, Ware, 647 S.W.2d at 584[4]; Prudential Property and Casualty Insurance Co., Inc. v. Cole, 586 S.W.2d 433, 434 (Mo.App.1979).

At the time the marriage was dissolved, Ann was living with her mother at Nixa, and was employed in a supervisory position at a bank in Kimberling City. While Ann *469 worked, Mandy was kept by an individual in the latter’s home.

Some months later, Ann began living with a man, Phil, at Lindenlure, a small community near Sparta. As best we can deduce from the record, this occurred sometime in autumn, 1981. According to Ann, she and Phil had fallen in love and discussed marriage, and they began sharing a home to see whether their love “could endure the trials of every day living together.” Mandy lived there with them. This arrangement lasted approximately three months.

Ann then moved to a house in Springfield, where she resided for the 11 months immediately preceding the modification hearing. At the time of the hearing, Ann was employed at Springfield Paramedics as office manager and part-time paramedic. While Ann worked, Mandy was left at a licensed day-care center in Springfield during the day, and with a “babysitter, a family member,” at night. Ann explained that although Phil was her fiance, he did not reside at her Springfield house “on a regular basis, at this time.”

Larry had remarried prior to the modification hearing, and was living with his new wife and her 9-year-old son in a modern, 3-bedroom home on 7 acres near Reeds Spring. Larry testified his wife works “half a day.” Larry explained that if he were awarded custody of Mandy, his wife’s sister would take care of Mandy while his wife was at work, or Mandy could stay at a licensed day-care center near Reeds Spring.

The reasonable visitation rights granted Larry by the dissolution decree were, generously heeded by Ann. Initially, she allowed Larry to have custody of Mandy on alternate weekends and one night a week. Later, Ann allowed Larry to have Mandy “about every weekend.”

Viewed most favorably to the result below, the evidence showed that in December, 1981, Ann advised Larry “that she did not want Mandy all the time.” Ann was tired and confused, and told Larry she “just couldn’t handle it.” By agreement, Larry took Mandy to his home and, during the first four months of 1982, had custody of her more than half the time. Altogether, Larry had custody of Mandy 165 nights during the first 11 months of 1982.

Ann admitted seeking treatment for a “psychiatric condition” in March, 1982, being hospitalized “a short period of time.” Ann related that she was depressed by financial problems and stress from the dissolution. She made one suicide attempt.

Larry recalled Ann mentioning suicide three times, the first being in December, 1981, and the last “around April,” 1982.

At Larry’s request, the trial court interviewed Mandy in chambers, on the record, in the presence of counsel. § 452.-385, RSMo 1978. Little was learned, but Mandy did express a preference for Larry when asked where she would like to live most of the'time. The reasons she gave were: (1) “ ‘Cause I don’t want to live with my mama,” and (2) Larry said he would give her raisins, bubble gum and candy. In view of Mandy’s tender years, her preference was entitled to scant, if any, weight. Johnson v. Johnson, 526 S.W.2d 33, 35[1] (Mo.App.1975).

Ann reminds us that the authority to order a change of custody emanates from § 452.410, RSMo 1978, and that it was incumbent on Larry to prove that a change had occurred in the circumstances of Mandy or Ann since the decree of dissolution, and that the modification was necessary to serve Mandy’s best interests. Henderson v. Henderson, 622 S.W.2d 7, 8-9[1] (Mo.App.1981). Ann correctly observes that the fact that Larry had remarried and had a physically suitable home was not a basis for modification, as that change was in the circumstances of the noncustodial parent, rather than the child or the custodian. Eastes v. Eastes, 590 S.W.2d 405, 408[4] (Mo.App.1979). Larry’s circumstances were pertinent only in determining whether his home constituted an acceptable repository for Mandy, and not as evidence supporting any need for modification.

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667 S.W.2d 467, 1984 Mo. App. LEXIS 3669, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-scobee-moctapp-1984.