P.A.(D.)K. v. T.R.D.

662 S.W.2d 583, 1983 Mo. App. LEXIS 3729
Missouri Court of Appeals·Decided December 20, 1983·No. No. 45914·Published·Cited by 1 cases

Opinion

GAERTNER, Presiding Judge.

Appellant mother appeals from the trial court’s judgment granting respondent-father’s motion to modify a dissolution decree by transferring the custody of the party’s two children to the father. The central issue on this appeal is whether or not the conduct and attitude of appellant following the dissolution of her marriage with respondent constitutes a change in circumstances within the meaning of § 452.410, RSMo 1978, so that modification of the prior custody decree was authorized. On mother’s appeal the trial court judgment must be affirmed unless it erroneously declares or applies the law, is unsupported by substantial evidence, or is against the weight of the evidence. Adams v. Kerr, 655 S.W.2d 49, 52[1] (Mo.App.1983). We affirm.

The parties were divorced on February 23,1981. The mother was awarded custody of their two minor children, a son and a daughter, then aged five and three, respectively. The father was granted temporary custody and visitation rights. On May 28, 1981, three months after the decree of dissolution, the father filed a motion to transfer primary custody of the children to him. He alleged that a significant change of circumstances in the conduct of the mother subsequent to the dissolution of the marriage made the transfer necessary to serve the best interests of the children. Based on the testimony adduced at the hearing on the father’s motion to modify, the trial court entered a lengthy and detailed order summarizing the evidence and reasons underlying its order conferring upon the father the primary custody of the children.

The hearing produced the following evidence. Subsequent to the divorce, mother and the two children moved into an apartment which she later shared with another divorced woman who, in exchange for room and board for herself and her own two children, agreed to babysit and clean the apartment. During the months following her divorce, mother was openly promiscuous and admitted her numerous trysts with at least three different men during this period. She became pregnant in early February (the record is unclear whether before or after her divorce) and for some time after was unsure whose child she carried. A former paramour testified that several times she had left the children overnight with others so that she could spend the night in a hotel with him. More often, he stayed at her apartment overnight, as did the many male associates of mother’s live-in babysitter. There was testimony that each of her children had interrupted mother “fla-grante delicto” with another of her lovers. There was also an account intimating that the mother, live-in babysitter, and another male had engaged, more or less, in a menage a'trois.

One of the mother’s prior babysitters testified that when she babysat for the children she never knew where the mother could be reached. On one such occasion, she was left overnight with the children until 4:30 a.m. the following morning. The live-in babysitter also stated she was frequently left with the children with no explanation [585] of the mother’s whereabouts. During one of the mother’s extended absences, the children were left without sufficient food which the natural father immediately supplied when notified. A social worker had described the apartment as cluttered, with dirty floors, dirty dishes, unmade beds, although there were times when it was fairly well kept. Other witnesses corroborated her impressions of mother’s inadequate housekeeping.

Mother, while acknowledging some of her indiscretions, parries that her children are now happy, well adjusted, and the children’s best interest would be promoted by having them remain with her. Her basic thrust is that the children are in a stable environment and have suffered no detrimental effects from her past misconduct. An area social worker testified the children seemed to have a very happy kind of relationship and that their trailer home was neatly kept with the children’s art work displayed. Mother claims her primary concern is her children and she has abandoned all traces of her past misconduct. However, no matter how she views the situation, we cannot ignore the overwhelming evidence before the trial court in support of its conclusion that the conduct of the mother, under all the circumstances, was not in the best interest of the children.

We have studiously considered the entire record here and the cases cited by both parties. The gist of mother’s complaint on appeal is that her past moral lapses do not in themselves make her unfit and are to be measured by the affect, if any, they have on the children’s welfare. J_ F_ R_ v. R_ R_, 482 S.W.2d 543, 545[2] (Mo.App.1972). One affair does not make one promiscuous nor is its affect on the child always deemed adverse, particularly where the child never witnesses any sexual activity. See In Re Marriage of F., 602 S.W.2d 227 (Mo.App.1980). Custody of children should not be modified as punishment for parent. In Re Marriage of Dusing, 654 S.W.2d 938, 943[3] (Mo.App.1983). But nothing in the trial court’s decision here is punitive. On the contrary, considering the mother’s admitted associations with sundry men following her divorce, which the children witnessed, coupled with her new husband’s misperception of his right to replace and usurp the natural father’s role and authority in rearing the children, the trial court’s decision is neither arbitrary nor punitive. We find it amply supported by the record.

Mother denies any extra-marital intercourse either before or after her divorce with the witness who testified the children had on occasion interrupted them during their sexual activity; however, we note her testimony was diametrically opposed with his on these, as well as other, significant facts. Credibility judgments were necessarily involved in this case and the trial court was in a much better position to arrive at the correct judgment on that issue. Based on the trial court’s extensive findings of fact and the record before us, mother’s first contention that insufficient evidence of changed conditions existed to warrant the custody transfer has no merit.

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P.A.(D.)K. v. T.R.D., 662 S.W.2d 583, 1983 Mo. App. LEXIS 3729 (Mo. Ct. App. 1983).

662 S.W.2d 583 (P.A.(D.)K. v. T.R.D.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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