L. v. D.

630 S.W.2d 240, 1982 Mo. App. LEXIS 2752
CourtMissouri Court of Appeals
DecidedMarch 1, 1982
Docket12222
StatusPublished
Cited by21 cases

This text of 630 S.W.2d 240 (L. v. D.) 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
L. v. D., 630 S.W.2d 240, 1982 Mo. App. LEXIS 2752 (Mo. Ct. App. 1982).

Opinion

630 S.W.2d 240 (1982)

L. ----. ----., Respondent,
v.
D. ----. ----., Appellant.

No. 12222.

Missouri Court of Appeals, Southern District, Division Two.

March 1, 1982.

*241 David T. Greis, Kansas City, for appellant.

Donald E. Sotta, Joplin, for respondent.

MAUS, Chief Judge.

The marriage of appellant-mother and respondent-father was dissolved in 1974. The appellant is a lesbian. She stated she had, at different times, been involved in a homosexual relationship with four women. At the time of the hearing in this case, she had maintained such a relationship with K. C. for four years. The fact the mother was a lesbian was an issue in the dissolution proceedings. The father was given custody of their four children, ages 3 years to 9 years. The appellant was given the right of reasonable visitation. That same year the decree was modified to provide specific visitation from noon on Saturday to 6:00 p. m. on Sunday on the first and third weekends of each month. Subsequently, it was mutually agreed that one child, in rotation, could spend the second weekend of each month with the mother.

By the motion to modify in this case, the appellant seeks custody of the two younger children. By his counter-motion, the father seeks termination of the mother's visitation. After an extended hearing, the trial court made extensive and detailed findings of fact. Then, upon a sagacious analysis of the law, the trial court denied the appellant's motion and reduced and limited her visitation as will be hereinafter noted. The appellant first contends the trial court erred in not awarding her custody of the two younger children.

It is fundamental that a custody decree shall not be modified unless the court 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". § 452.410, RSMo 1978. To meet that criterion, the appellant cites four factors. She first asserts the present environment of the children is unhealthy for them and she points to the father's lack of demonstrable affection. Her evidence on this point consisted of conclusory statements that the father was unemotional and did not appropriately praise the children. While the trial court made no specific findings on this assertion, the appellant's evidence is illusory and does not provide a basis for a change of custody.

The appellant next asserts the father interfered with her visitation. She refers to evidence that he moved without consulting or notifying her and did not give her his new residential phone number. There was evidence the move was made so the father could be close to his work and while the appellant was in the army. She did have his phone number at work. Interference with visitation can be a factor in determining custody. Christianson v. Christianson, 592 S.W.2d 505 (Mo.App.1979). However, the conduct of the father does not reach that proportion.

Thirdly, the appellant relies upon the expressed desire of the two younger children to live with her. At the time of the hearing she lived in a suitable residence with her lesbian lover K. C. The first of these two children stated that the appellant did not ask them to come and live with her. He explained that he and his brother talked *242 it over and on January 5 told her they wanted to live with her. He said he wanted to do so because he loved her more than his father. He added that his father made him play sports and that his step-mother said she did not want them living with her. He also said that he received but little praise and affection from his father. But, he said he got a lot of hugs and kisses from the appellant and from K. C. The second of these children said he loved the appellant more than his father. He had similar observations concerning praise and affection. He did state that the appellant did not discipline them.

In presenting this point, the appellant does not reconcile the testimony of the second child who unequivocally stated that before they told her of their decision, the appellant asked these two children to come and live with her. She also ignores the testimony of the next to oldest child as it pertains to the origin of this preference. This child stated that shortly after the first of the year, during visitation, the two younger children went into a room with the appellant and K. C. This child attempted to follow but was told by K. C. to go back out to the living room. When the two younger children came out, they "looked like they'd been crying. And then they—I sat down and asked them what was wrong now and they said they wanted to move up here". The father related that since that time the two younger children acted as if they didn't have to mind and threatened to tell their mother if disciplined. The step-mother said they were "just out of hand".

In determining the custody of a child the court is to consider all relevant factors, including, among other things, "[t]he wishes of a child as to his custodian". § 452.375(2). However, the wishes "of the child should be followed only if the welfare and interest of the child, as determined by all the evidence, are consistent with that preference". Kanady v. Kanady, 527 S.W.2d 704, 707 (Mo.App.1975). Further, "[i]n considering the wishes of the child, it is important to ascertain and evaluate the basis for these wishes, so that the court can properly place this element in its proper perspective in deciding what is in the best interest of the child". McBride v. McBride, 579 S.W.2d 388, 390 (Mo.App.1979). Considering the circumstances surrounding the formulation of these wishes, the trial court could have found the preference to militate against, rather than support, the appellant's position. In any event, considering all of the evidence, the expressed preference cannot cause an award of custody to the appellant to be in the best interests of the two children of tender years.

As the fourth factor the appellant asserts the father has alienated the two older children and will do likewise with the two younger children. Her argument on this point is primarily founded upon the fact the father showed the oldest child a love letter the appellant had written to her then lesbian lover. On appeal the appellant contends the trial court erred in admitting the letter. By evidence she presented, the appellant first placed this letter in issue. Her complaint it was inadmissible because written in 1972 or 1973 is not valid. The appellant contends the letter was shown because of malice and to alienate the child. In making that assertion she does not comment on the testimony of that child. This child stated that at the age of 13 he stopped visiting the appellant because "of the stuff I saw up there ... she was kissing other women and going to bed with them". He discussed these things with his father and was shown the letter. The father explained his action and the trial court accepted that testimony and found this was done with the intent to inform and educate the child of a situation which was troubling the child and not to deliberately alienate him. This court has no reason to reject that finding.

The appellant also complains because the next to oldest child is alienated. She places the blame for this alienation at the doorstep of the father.

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Bluebook (online)
630 S.W.2d 240, 1982 Mo. App. LEXIS 2752, Counsel Stack Legal Research, https://law.counselstack.com/opinion/l-v-d-moctapp-1982.