Marriage of Zavadil v. Zavadil

806 S.W.2d 506, 1991 Mo. App. LEXIS 474, 1991 WL 43061
CourtMissouri Court of Appeals
DecidedApril 2, 1991
Docket57244
StatusPublished
Cited by25 cases

This text of 806 S.W.2d 506 (Marriage of Zavadil v. Zavadil) 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
Marriage of Zavadil v. Zavadil, 806 S.W.2d 506, 1991 Mo. App. LEXIS 474, 1991 WL 43061 (Mo. Ct. App. 1991).

Opinion

STEPHAN, Judge.

Denis A. Zavadil (“Father”) and Charlene Francis Zavadil (“Mother”) were married on January 7,1983. One child, Christopher Joseph Zavadil, was bom of their marriage on May 18, 1985. Although both parties continued to reside in the marital home until April 5, 1987, they ceased living together as husband and wife on January 30, 1987. Father filed a Petition for Dissolution of Marriage on March 31, 1987, alleging an irretrievable breakdown of the parties’ marriage. Husband requested: (1) dissolution of the parties’ marriage; (2) custody of Christopher; (3) maintenance; (4) child support; (5) attorney’s fees; (6) court costs; and (7) an equitable division of the marital property.

On April 7, 1987, Mother filed her Answers and Cross-Petition for Dissolution of Marriage. She similarly alleged that the parties’ marriage was irretrievably broken. Wife requested: (1) all marital property; (2) maintenance; (3) child support; (4) attorney’s fees; (5) costs of the proceedings; and (6) custody of Christopher.

Following a four day hearing, the trial court entered its Findings of Fact, Conclusions of Law, and Decree of Dissolution on July 26, 1989. In its Findings of Fact and Conclusions of Law, the trial court ordered that: (1) Christopher’s best interests will be served by having his primary custody placed with Mother; (2) Father should be granted reasonable custody and visitation with Christopher, including alternate weekends, alternate holidays, and four weeks of continuous temporary custody and visitation during the summer school vacation; (3) Father shall pay Mother $200.00 per month for periodic maintenance; (4) Father shall pay Mother $600.00 per month for child support; (5) Father shall provide for Christopher both medical and dental insurance, and should pay any expenses not covered by said insurance; and (6) Father shall pay $8,000.00 to Mother’s trial attorney for fees incurred in the present litigation. Additionally, the trial court ordered a division of the marital property.

Father appeals from this judgment. He challenges: (1) the propriety of the award of custody of Christopher to Mother; (2) the award of child support concurrent with that custody; (3) the necessity of awarding maintenance to Mother; and (4) the award *509 requiring Father to pay Mother’s attorney’s fees. We affirm.

In his first point on appeal, Father alleges that the trial court erred in awarding the custody of Christopher to Mother because Christopher’s best interests would be served by awarding his custody to Father or, alternatively, to both Father and Mother. Father argues that the award of custody of Christopher to Mother was improper because: (1) the trial court specifically found that Mother has alienated the child from Father; (2) Mother’s interaction with Christopher exacerbated Christopher’s problems adjusting to the divorce; and (3) Mother’s alcohol abuse and careless smoking fail to provide a safe, stable and healthy home environment for Christopher. Father further argues that his home would be more stable and nurturing to Christopher, and thus would be the best environment for him.

Review of this court tried case is governed by Rule 73.01 and the well known principles presented in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Therefore, the decision of the trial court must be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Id. at 32; O’Leary v. Stevenson, 782 S.W.2d 109, 111 (Mo.App.1989). Moreover, the determination of the trial court in regard to child custody cases is granted greater deference than in other types of cases. Hart v. Hart, 766 S.W.2d 131, 132 (Mo.App. 1989). There are no inflexible or precise set of formulas to apply when determining what the outcome of a custody case should be. O’Leary v. Stevenson, supra, 782 S.W.2d at 111. Rather, each case must be examined on its own peculiar set of facts and circumstances. Id. Although we have the authority to reverse the custody award if it is not in the child’s best interests, that authority will be exercised with caution and only with a firm belief that the decree is wrong. Kean v. Kean, 754 S.W.2d 922, 923 (Mo.App.1988).

At the outset, we note that neither Mother nor Father is an exemplary parent. The testimony at trial indicated that Father inflicted cruel, rude and disrespectful physical and emotional mistreatment upon Mother. Mother testified that Father struck her on a number of occasions. On three or four occasions, Father struck Mother in front of Christopher. On at least one occasion Mother summoned the police to the couple’s house because she was afraid Father was going to hurt her. Additionally, Mother testified that Father belittled her in front of other people by calling her dirty names. Mother also testified that Father touched her in places that he should not have been touching her in front of other people. Mother’s testimony was supported by one of Mother’s co-workers. One co-worker testified that Father would put down Mother about her job in the presence of friends, and would use foul and abusive language toward Mother.

The record further indicates that Father engaged in a pattern of alcohol and drug abuse. Mother testified that Father drank to excess. On one occasion Father went over to a friend’s house where the two began drinking. Father’s friend, after both he and Father had ingested alcohol, drove Father and Christopher home.

Mother also testified that Father used both marijuana and cocaine. On one occasion, while Christopher was under Father’s care, Mother came home to find Father in an incoherent state on the living room floor. After checking on Christopher, Mother noticed that there was cocaine on the kitchen counter.

Since as early as January, 1987, Husband engaged in an extra-marital affair with Terry Kearney. During this relationship, Husband engaged in illicit sexual intercourse with Kearney. Husband has pub-lically acknowledged that he sired an illegitimate child, Samantha Zavadil, as a result of said sexual relationship. Husband testified that he shares a bedroom with Kearney, and that Christopher is aware of this arrangement. Husband further testified that he could have resided in his guest bedroom while enjoying temporary custody of Christopher, but he has chosen not to do so. Both Mother and Father also testified *510 that Husband violated the trial court’s April 20, 1987 order relative to child support and attorney’s fees while providing for his needs, Kearney’s needs, and the needs of Father’s illegitimate child.

We additionally note, before trial, Father taped telephone conversations of Father and Mother. In one such conversation, Father denied that Samantha Zavadil was his child. Father’s credibility and candor to the court was therefore successfully challenged.

Mother’s behavior is also troublesome. Father testified that Mother was a heavy drinker and was out three or four nights a week on a regular basis.

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Bluebook (online)
806 S.W.2d 506, 1991 Mo. App. LEXIS 474, 1991 WL 43061, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marriage-of-zavadil-v-zavadil-moctapp-1991.