In re the Marriage of Harris

734 S.W.2d 304, 1987 Mo. App. LEXIS 4554
CourtMissouri Court of Appeals
DecidedAugust 5, 1987
DocketNo. 14816
StatusPublished
Cited by3 cases

This text of 734 S.W.2d 304 (In re the Marriage of Harris) 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 the Marriage of Harris, 734 S.W.2d 304, 1987 Mo. App. LEXIS 4554 (Mo. Ct. App. 1987).

Opinions

GREENE, Presiding Judge.

Michael Harris appeals from the trial court’s modification of a decree of dissolution which changed custody of the parties’ two minor sons from him to his ex-wife, Robin Harris (now Hall). On appeal, Michael contends there was no substantial evidence of change of circumstances to support the modification order. We agree, and reverse.

[305]*305Viewed in the light most favorable to support the trial court’s judgment, the evidence was as follows. Michael and Robin were married on June 2, 1980. Their first child, Timmy, was born September 5, 1980, and their second, Brandon, was born September 2, 1982. The couple separated November 10, 1983, and, on January 10, 1984, Michael petitioned to dissolve the marriage. Robin filed a cross-petition. Neither party sought custody of the children in their petition. The parties entered into a separation agreement wherein Robin agreed that Michael was a fit and proper person to have care, custody and control of the children, and agreed that she would pay him $40 per month per child as child support. The trial court, after hearing, dissolved the marriage, awarded custody of the children to Michael, and gave Robin reasonable visitation rights. The court did not order Robin to pay child support, as she had agreed to do.

On February 19, 1986, Robin filed a motion to modify the custody provisions of the dissolution decree, alleging there had been a change of circumstances that affected the children’s welfare. The motion listed the circumstances as (1) her marriage to Hollis Hall which gave her stability that she did not have at the time of the dissolution of her marriage to Michael, and (2) that Michael had requested that she take actual custody of the boys, which she did, and requested that she see a lawyer “to sign papers” to have custody of the children transferred to her. The motion also requested that, in the event Robin was successful in her attempt to gain custody, that she be awarded a reasonable amount as child support.

Following a hearing on May 9, 1986, the trial court modified the dissolution decree by transferring custody of the children to Robin, granted Michael certain visitation rights, and ordered him to pay Robin the sum of $100 per month per child as child support.

Section 452.410, RSMo 1978, provides that the trial court shall not modify a prior custody decree unless it has jurisdiction under the provisions of § 452.450, and it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child. A party seeking a post-dissolution change of custody has the burden of showing a substantial change of conditions which necessarily requires a change of custody to serve the best interests of the child. Cole v. Cole, 664 S.W.2d 653, 655 (Mo.App.1984). When custody has been once adjudicated, it is presumed that the custodian remains suitable and the burden of proving a change of circumstances as to call for a change of custody is on the party seeking the change. In re Marriage of Britton, 574 S.W.2d 475, 476 (Mo.App.1978). Keeping these legal precepts in mind, we examine the evidence in an effort to determine whether Robin proved a substantial change of circumstances that mandated a change of custody.

Robin testified that approximately eight months (April 20, 1985) after the dissolution of her marriage to Michael, she married Hollis Hall. In July of 1985, Michael told her that “since he was single that he thought it would be better for the kids to come live with us since we were married.” She said Michael agreed to pay her $200 a month child support, and that he would get a lawyer to “have papers drawn up” to change legal custody of the children. Robin then took the children, and kept them until February 10, 1986. During the time Robin had the children, Michael contributed $600 toward their support.

Michael regained custody of the children in February. Robin said that the reasons Michael gave for not carrying out his promise to have papers prepared to change the legal custody of the children were that if that happened he would be legally obligated to pay child support, and also said “he didn’t think I was able to take care of the kids.” On cross-examination, Robin testified that on August 17, 1984 (the date of the divorce), she was living with her parents in Humansville, Missouri. A month [306]*306later she moved in with a girl friend, Barbara Huvner, who lived between Weau-bleau and Humansville. This arrangement lasted two or three months until she moved in with Beverly Sikes, who lived in Bolivar. Robin lived with Beverly five or six months. In March of 1985, Robin moved to Texas where she stayed with Marsha and Lee Adcock for about six weeks, and then moved back to Bolivar, where she resumed living with Beverly Sikes. She then moved to the home of Joyce Barr, where her present husband, Hollis Hall, was also living, and had been since his divorce. Hollis’ relationship with Joyce Barr is not explained in the transcript.

Robin testified that after her marriage to Michael was dissolved, and before she married Hollis, she wrote Michael two letters. In the first, postmarked February 25,1985, she stated, “Mike, I’m so sorry for all of this. I mean look at the kind of mother I’ve been to our boys” and “Lord, how I wish I wasn’t pregnant. Hollis called once since I’ve been here, the answering machine talked to him though.” While she was in Texas, Robin again wrote to Michael, and said, “I decided on an abortion, and I’d like to have a friend to help me get through it.” When asked what factors had changed since August of 1984, with respect to the children, Robin replied, “I don’t know how to answer that. They were ‘too-ken’ good care of when they were with their dad, they were also ‘tooken’ good care of when they were with us.” When asked in what way the boys would be better off with her, she said, “I’m home. I don’t work. I’m with the kids. They want to be with their mother.” At the time of the hearing, Robin was working two or three days a week at a service station. Her work history before that time was sporadic. Her present husband, Hollis Hall, did not testify. Three witnesses, one of whom was Hollis Hall’s mother, Robin’s sister, and one sister of Hollis’, testified that Robin was a good housekeeper and a good mother.

In explaining why he relinquished physical custody of the children to Robin in July of 1985, Michael testified, “We just discussed the fact I was single, she wouldn’t help me at all. She wouldn’t give me no child support, and she was married and had a home. And we just thought that was probably more stable at the time, but it didn’t turn out to be that way.” He also said, “Well, my parents was watching the kids, my mother, and she was — she was sick and my father had to be hospitalized, and I just couldn’t afford a babysitter [sic]. I was working two jobs....” Later, after Robin had the children, Michael told her he didn’t want her to have legal custody because, “I thought I could raise them better.”

Robin later telephoned Michael and told him, “Well, her and Hollis were having troubles. She called me up and told me she was leaving him, that’s why, you know— And neither one of them was working hardly at all....

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734 S.W.2d 304, 1987 Mo. App. LEXIS 4554, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-harris-moctapp-1987.