Marriage of Korn v. Korn

584 S.W.2d 179, 1979 Mo. App. LEXIS 2396

• Court: Missouri Court of Appeals
• Decided: June 29, 1979
• Docket: 10771
• Status: Published

Opinions

JAMES H. KEET, Jr., Special Judge.

Appeal from judgment entered July 27, 1977, transferring custody of the parties’ only child, Travis (age 6 at time of trial on July 26, 1977), from appellant (the mother, Sherry) to respondent (the father, Mike) and awarding her right of reasonable visitation and three months’ summer temporary custody.

Review is under Rule 73.01¹ as construed in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).²

The parties’ first marriage ended in divorce in 1972, Sherry then being awarded custody. Their second marriage (the record does not show its date) was dissolved August 13, 1975, Sherry being awarded custody and the right to remove Travis to California and Mike being awarded right of reasonable visitation and two months’ summer custody each year.

Shortly thereafter Sherry, with Mike’s agreement, took Travis to California where they saw Mike Mitchell, whom Sherry then married. On September 21, 1975, Sherry went to Saudi Arabia with Mitchell and, again with Mike’s consent,³ took Travis with her. On November 4, 1975, separated from Mitchell, she returned and moved in with her mother for ten days and then got a job at a poultry processing plant in Monett, where she and Travis lived with a Debbie Garrett and her child.

In February and March, 1976, Sherry and Travis were ill and Sherry was in financial difficulties because she had had to replace certain clothing and housewares and bought a car and Mike had not timely paid the $15 per week child support set by the court. In April 1976, Sherry, giving Mike to believe she was going back to Saudi Arabia, entered the U. S. Army to have the security of a steady job and medical benefits for her and Travis. Her adopted father had been a career military person. She left Travis with her mother until she completed basic training. Several weeks later her mother turned Travis over to Mike, who had remarried in December 1975.

Mike at once filed his motion to modify, asking transfer of custody.⁴ Upon Sherry’s return from basic training in May 1976, he filed and served on her a motion for temporary custody and refused to let her have custody of Travis. Travis remained with Mike and his new wife, Lynn (with whom he had lived for three months before their marriage), until December 1976. He then began a stay with Sherry and her new. husband, Sgt. Getty, a career soldier. Travis was with them in South Carolina (where they were stationed) until April 1977.⁵

The trial court found that each party loved Travis and was “capable of providing an adequate home”; that petitioner was a restless, aggressive personality and Mike rather calm and phlegmatic; that Travis had had some nervous problems brought on by unstable conditions under which he had lived since the dissolution; that Sherry had led a “very unstable life” but her enlistment in the Army “was a very positive step” which could lead to a great deal more stability in her life, provided her present marriage is successful; and' that Lynn was a good mother and with Mike was in a position to provide Travis a home where he has a father and mother and a little brother (Lynn’s son by another marriage, named Paul, age 4 at time of trial, with whom Travis got along very well). Concluding that Travis “at the present time is very much in need of a calm, stable environment, and that this can best be provided by the Respondent,” the court ordered Travis placed in Mike’s custody and expressed the hope that by May 1978 “Travis will have matured and settled down enough that he can handle the change [to the summer custody awarded Sherry] without psychological disturbance.”

Respondent had the burden of showing that facts arising since the prior decree had given rise to a change in circumstances of the child or his custodian and that a modification was necessary to serve the best interests of the child. § 452.410. The party originally awarded custody is pri-ma facie capable of having custody. Randle v. Randle, 560 S.W.2d 876 (Mo.App.1977). Compare Commissioners’ Note to § 409, Uniform Marriage and Divorce Act. The trial court’s judgment will not be set aside unless it is against the weight of the evidence or wrongly declares or applies the law. In re the Marriage of B-A-S-, 541 S.W.2d 762 (Mo.App.1976). This court has a duty to reach its own conclusion based on the law and the evidence and enter such judgment as the trial court should have entered. In re Marriage of Zigler, 529 S.W.2d 909 (Mo.App.1975). The trial court’s decision should not be disturbed unless the best interests of the child require a different disposition. In re Marriage of Powers, 527 S.W.2d 949, 952 (Mo.App.1975).

The respondent urged at trial that he had remarried (such alone is not sufficient — In re Marriage of Cook, 532 S.W.2d 833, 836 (Mo.App.1976) and was able to provide Travis with a stable home life. These changes in his circumstances may be considered even though § 452.410 provides that the court may not modify a prior custody decree unless it finds that a change has occurred in the circumstances of the child or his custodian. Randle, supra, 560 S.W.2d at 878.

Appellant insists that the trial court’s decision was against the weight of the evidence and wrongly applied the law. We disagree.

Stability of the child is an important factor to be considered in deciding custodial issues. L.H.Y. v. J.M.Y., 535 S.W.2d 304, 306 (Mo.App.1976); Cook v. Lodes, 560 S.W.2d 64, 67 (Mo.App.1977); In re Marriage of Roedel, 550 S.W.2d 208 (Mo.App.1977); Johnson v. Johnson, 526 S.W.2d 33, 37 (Mo.App.1975); Commissioners’ Note to § 409 of Uniform Marriage and Divorce Act. The trial judge acted within his discretion in relying primarily on this factor. His conclusion that Travis at trial time very much needed a calm, stable environment and that such could be best provided by respondent is supported by credible evidence, even though there was credible evidence that would support a contrary conclusion.⁶ Travis was in the custody of respondent and his wife a majority of the time after Sherry’s mother turned Travis over to respondent. When Travis first came to live with respondent and his wife Travis was insecure and had problems controlling his bowels and was unable to sleep well. These problems cleared up after Travis had lived with respondent and did not recur until subsequent contact with appellant. Travis was doing well in school at Carthage and had the opportunity of visiting with his maternal grandmother and the paternal grandparents. If permanent custody were switched to appellant, Travis would be transferred from respondent’s extensive custody and uprooted from the continuity of the stable environment in which he has been since April 1976.

Appellant relies greatly on Klaus v. Klaus, 509 S.W.2d 479 (Mo.App.1974), In re Marriage of B-A-S-, supra, and In re Zigler, 529 S.W.2d 909 (Mo.App.1975), characterized in Shannon v. Shannon, 550 S.W.2d 601, 604 (Mo.App.1977) as “an exceptional case.” These cases lend substantial support to appellant’s position. However, they are distinguishable in a number of respects, and do not persuade the court that it should reverse.

We recognize (as ably argued by appellant’s counsel) that the pattern of custody following the dissolution, agreed to by respondent, should not lightly be disregarded (B-A-S-, supra, 541 S.W.2d at 768; Zigler, supra); that interference with visitation rights (there was evidence that Mike interfered when Sherry returned from basic training) is an important factor (Randle, supra, 560 S.W.2d at 879; RLS v. JES, 522 S.W.2d 5 (Mo.App.1975); B-A-S-, supra); that the presumption in favor of the mother is important as a factor to be weighed (R-G-T- v. Y-G-T-, 543 S.W.2d 330, 331 (Mo.App. 1976); Pearson v. Pearson, 575 S.W.2d 934 (Mo.App.1978)); and that appellant, originally awarded custody, is prima facie capable of having custody (Randle, supra; Klaus, supra); and that a parent who turns a child against the other parent may be denied custody (B-A-S-, supra, 541 S.W.2d at 768-769).⁷

We presume, and are persuaded from a close study of the transcript, that the trial court studied all of the evidence and decreed custody in the manner it believed would be best for Travis, L.H.Y. v. J.M.Y., 535 S.W.2d 304, 306 (Mo.App.1976); Kanady v. Kanady, 527 S.W.2d 704, 708 (Mo.App.1975). We give due regard to its opportunity to evaluate intangibles which do not appear in the record (In re Marriage of Powers, 527 S.W.2d 949, 952 (Mo.App.1975)). We are not convinced that the trial court’s decree was against the weight of the evidence or wrongly applied the law or that the best interests of the child call for a different disposition.

The nature of the case and the considerable evidence in appellant’s favor make our decision “difficult and soul-searching,” as in our In re Marriage of Chilton, 576 S.W.2d 584, 585 (Mo.App.1979). Our review, including a consideration of the extent to which we should defer to the trial judge’s findings and decision in this case, persuades us that his action should be affirmed. As stated in Moore v. Moore, 429 S.W.2d 794, 797 (Mo.App.1968):

“In child custody cases the trial judge rarely enjoys the luxury of deciding between a good choice and a bad one. More often he must make a decision between two poor choices or, almost as difficult, between two satisfactory choices. His decision is often influenced by the character of the parties and by their witnesses — factors more apparent to him than to us.”

The judgment is affirmed.

FLANIGAN, C. J. and TITUS, J., concur. CAMPBELL, Special Judge, concurs. BARKER, Special Judge, dissents (dissenting opinion filed). HENRY, Special Judge, concurs.

1 . Unless otherwise indicated all references to rules are to Missouri Rules of Court, V.A.M.R., and all references to statutes are to RSMo 1969, V.A.M.S.

2 . The record being ample, we do not see fit to remand even though it is possible that substantial and material changes of condition may have occurred since time of trial (Cf. B v. L, 558 S.W.2d 738 (Mo.App.1977); J-G-W- v. J-L-S-, 414 S.W.2d 352 (Mo.App.1967) and the trial court did not order the welfare office or juvenile officer to exercise continuing supervision over the case pursuant to § 452.405 (Cf. J-A-F-v. P-J-F-, 552 S.W.2d 739, 741 (Mo.App.1977).

3 . Pursuant to a stipulation for modification made after Sherry married Mitchell granting Sherry the right to remove Travis from Missouri, “to any other state within or without the continental United States” and Mike two months’ summer custody each year, with Sherry to bear the cost of transporting Travis to and from Mike’s residence. The record does not show filing of the stipulation or any court action on it. Mike testified Mitchell “was a very reputable person and I assumed that he would be good to Travis.”

4 . He alleged only his remarriage; a suitable home; Sherry’s joining the armed forces, her whereabouts being unknown; and Travis’ desire to continue to reside with Mike. The case was tried, in large measure, on his contention, made at trial, that Sherry was not a fit mother and that Travis had lived with her under unstable conditions.

5 . A docket entry of December 8, 1976, reflects appearance of the parties and their attorneys and continuance of the hearing on the motion to modify pending home studies ordered that date by the court. The record is not express as to how it happened that Travis went to South Carolina, but it may be inferred that it was by agreement of the parties. Each home study “reflected a good home.”

6 . The evidence is not persuasive that Sherry’s conduct caused whatever nervous condition Travis may have had. There is evidence that she was a good, loving, dedicated, and concerned parent. Her mother’s testimony that she was a bad mother to Travis is not persuasive. Mike conceded that Sherry had taken good care of Travis. His only criticism at trial was that she had left Travis alone with her mother while Sherry had gone out at nights and had failed to take care of Travis’ daily needs. Her absence does not establish unfitness where, as here, the child is left with adequate care. (Klaus v. Klaus, 509 S.W.2d 479, 482 (Mo.App.1974); Cook, supra, 532 S.W.2d at 836.)

7 . The trial judge expressly noted this at trial but his “Memorandum of Court’s Findings” did not express a finding of facts on it. There was credible evidence that Mike, upon Sherry’s return from basic training, said some things (within the hearing of Travis) that strongly charged Sherry with not loving or wanting Travis.