Kordonowy v. Kordonowy

887 S.W.2d 809, 1994 Mo. App. LEXIS 1870, 1994 WL 677824
CourtMissouri Court of Appeals
DecidedDecember 6, 1994
DocketNo. 64246
StatusPublished
Cited by8 cases

This text of 887 S.W.2d 809 (Kordonowy v. Kordonowy) 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
Kordonowy v. Kordonowy, 887 S.W.2d 809, 1994 Mo. App. LEXIS 1870, 1994 WL 677824 (Mo. Ct. App. 1994).

Opinion

PUDLOWSKI, Judge.

Husband challenges the maintenance, child custody and division of marital property provisions of the decree dissolving his marriage to wife. We affirm the decree granting the dissolution but remand with instructions concerning the challenged provisions.

Judy and Mitchell Kordonowy were married on August 5, 1967. They had three children, Kristina, born 9/21/70, Scott, born 9/21/78, and Natalie, born 1/23/83. Mitchell is a graduate of Washington University and has worked at Monsanto since 1978. Judy was essentially a homemaker until 1989 when she went to work for the Defense Mapping Agency.

There was a trial on the merits before the Honorable Larry L. Kendrick beginning on February 25, 1992. During the trial, husband made four requests to call the adult child, Kristina and the minor children to testify or alternatively to have the court interview the children in camera. Each time the request was denied. The court entered its finding of facts, conclusions of law and a decree of dissolution on March 8, 1993. Mitchell filed post-trial motions for amendment of judgment and a new trial on March 23, 1993. On April 19, 1993, the motion for amendment and the motion for new trial were argued and submitted. On June 10, 1993, the motion for amendment of judgment was granted in part, denied in part and the motion for new trial was denied.

The court in its decree ordered the primary legal and physical care, custody and control of the minor children to Judy. Mitchell was awarded visitation rights and temporary custody. The court ordered Mitchell to pay child support and maintain medical, hospital, dental and pharmaceutical [811]*811insurance through his employer. Judy was also awarded periodic maintenance subject to modification which terminates upon the death of either party or the remarriage of the wife. The court divided the marital property and the marital debts. In addition, Mitchell was ordered to pay Judy’s attorney’s fees and the court costs. This appeal followed.

On appeal, Mitchell contends the trial court erred on four points. Essentially, he contends that the trial court erred in awarding the primary legal and physical care, custody and control of the minor children to Judy, awarding the marital residence and a disproportionate share of the marital property to Judy and awarding maintenance to Judy. The basis for all four points of error is the same: the trial court’s refusal to allow the minor children or the adult child, Kristina, to testify or at least interview them in camera. Mitchell contends that such testimony would have an effect on the distribution of assets and custody of the children. Mitchell relies on R.S.M v. J.D.M., 542 S.W.2d 361 (Mo.App.1976) and statutory authority for his contentions.

We will affirm the court’s decree if it is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law. Osmun v. Osmun, 842 S.W.2d 932, 934 (Mo.App.1992).

We hold that the trial court committed error by not allowing Kristina, the adult child to testify. The offer of proof made by Mitchell’s counsel displayed-relevant testimony. The reason given for not allowing her to testify was neither a lack of competency nor relevancy. Husband was entitled to present her testimony. Kristina, based upon the offer of proof, could have given relevant testimony on factors set out in § 452.375 RSMo Supp.1993 concerning child custody, factors set out in § 452.335 RSMo Supp.1993 determining maintenance and the factors set out in § 452.330 RSMo Supp.1993 regarding the disposition of marital property. Accordingly, we remand with instructions to permit Kristina to testify.

In regard to the minor children’s testimony, courts have split the subject matter into two areas: one regarding their custodial preference and the other regarding their knowledge of the parents’ activities. We will address both topics separately for each minor.

Regarding custodial preference, the trial court has discretion to interview the children or allow them to testify. In discussing this point in Osmun v. Osmun, supra, we stated “[i]t is true, as husband argues, that a court in making its custody determination must consider the wishes of a child as to his or her custodian. However, the decision whether to ascertain such wishes through an in-chambers interview of the child is discretionary with the trial court.” 842 S.W.2d at 936. [citations omitted].

At the time the trial began, Natalie was nine years old. Although it is discretionary to interview her, in R.S.M. v. J.D.M., supra, we addressed this point:

Sec. 452.385 RSMo.1969, provides that the court may determine such preference by interview in chambers with counsel present and participating. Such a procedure is discretionary. In Johnson v. Johnson, 526 S.W.2d 33 (Mo.App.1975) we held it was not error for a court not to interview a child of tender years as to his preference. Such a child is too young to have a rational basis for a preference and even subjecting him to expressing a preference may have serious adverse effects.
Exactly what age is too young we do not attempt to establish here. We believe it the preferable procedure, if there is doubt, for the court to conduct a voir dire examination or interview to determine whether the child is capable of a rational preference. Here, however, we do not find an abuse of direction in the court’s determination that a child less than nine could not make a rational choice. Children of that age frequently make such decisions upon considerations unrelated to their welfare.

542 S.W.2d at 362-363.

We, too, decline to establish an exact age which is too young. At the time of the trial, Natalie was only nine years old. Because the decision is within the discretion of the trial court, we hold that the trial court did [812]*812not err by not interviewing Natalie in camera to determine if she was too young to express a custodial preference.

The treatment of Scott, however, should have been different. At age thirteen, he is not of such tender years that it would necessarily be traumatic to interview him regarding his custodial preference. The trial court should have at least interviewed him to determine if he was competent to testify regarding his custodial preference.

The other subject matter which the minor children could have testified about is the parent’s activities. In R.S.M. v. J.D.M., supra, we addressed this point:

As to permitting the child to testify concerning the activities of his parents, we arrive at a different conclusion. A parent has a right to call upon his children, if competent, to testify in a child custody proceeding where such evidence is relevant. J.L.W. v. D.C.W., 519 S.W.2d 724(14) (MoA.pp.1975). It is the obligation of the trial court to determine by proper voir dire examination that a child is competent to testify ‘and by the same token it is equally his duty to determine by a proper voir dire examination, that the child is incompetent before precluding it from testifying.’ Benjamin v. Benjamin,

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887 S.W.2d 809, 1994 Mo. App. LEXIS 1870, 1994 WL 677824, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kordonowy-v-kordonowy-moctapp-1994.