Raines v. Raines

583 S.W.2d 564, 1979 Mo. App. LEXIS 2365
Missouri Court of Appeals·Decided May 29, 1979·No. 39415·Published·Cited by 31 cases

Opinion

SMITH, Judge.

Wife appeals from a judgment in a dissolution of marriage case. Specifically, she attacks the court’s (1) award of maintenance, (2) award of child support, (3) award of attorney’s fees and (4) order providing for temporary custody of the minor child with the husband. Respondent husband has filed no brief in this court.

*566 The wife was eighteen at the time of marriage, the husband — twenty. The parties were married for fifteen months before their initial separation and eighteen months before their final separation. The minor son was less than a year old at the time of separation and two years old at the time of the decree of dissolution. During the eighteen months of the marriage prior to separation, the husband held about six different jobs. Wife was not employed. The family lived in a $160 per month apartment; there was frequently a shortage of food; husband illegally drew unemployment compensation while he was working in order to maintain the family standard of living. While they were living together the wife notified authorities of her husband’s illegal conduct. As a result he began paying back to the State $2300 in improperly received benefits and at the time of hearing still owed the State $600. Approximately six months before the hearing (but after separation) husband began employment at the Chrysler plant in St. Louis County at a gross pay of $295 per week, and a net of $210. He frequently worked overtime and on some occasions made as much as $500 gross per week. In the six month period of employment before the hearing the husband was off two weeks for plant, holiday, was laid off three or four weeks for changeover, and was on sick leave for six or more weeks. When on leave husband would draw $100 per week compensation much of which was used to pay back his unemployment compensation debt. Husband’s income and expense statement showed regular monthly and personal expenses of approximately $700.

Wife had no income from the time of separation until the hearing except for $100 per month aid to dependent children. She is a high school graduate with some college work, in good health, can type 65 words a minute and can take dictation from a machine. She made some efforts to obtain employment after separation but these efforts could be considered minimal and were only indefinitely and generally described. She did work part time at a fast food restaurant but quit that employment because the pay ($40 a week) was too low. She plans to enroll in a six year college course to obtain a secretarial degree although her information on this program was based solely upon a telephone call to a junior college. Her income and expense statement reflected estimated expenses of $289.20 per month for shelter, utilities, automobile operation, and insurance.- She lived with her parents pending the dissolution and has neither automobile nor driver’s license. Her personal expenses were estimated at $235.50 per month and her child’s expenses at $237.10 per month. Medical and dental bills for wife and child totaled $131 per month and were based on a selected month’s expenses. Her only listing of child care payments was $30 per month based upon one occasion when she paid her parents that amount when she went on a week-end trip.

There was no marital property of consequence. There were substantial debts, several incurred by the husband prior to marriage.

The court awarded wife $25 per week maintenance for two years, $30 per week child support, $450 in attorney’s fees, and granted the husband temporary custody from 1 p. m. to 5 p. m. on alternate Saturdays- and Sundays and on alternate holidays and one week during the summer.

We find it unnecessary to set forth the evidence adduced concerning the husband’s fitness to have temporary custody. Suffice it to say that the wife’s testimony came from herself, her brother, her sister, and a friend and was denied by the husband. The testimony reflects that the wife is over-protective of the child. . The trial court could have concluded that the claim of unfitness of the husband was based upon that over-protectiveness, the wife’s family’s rigid religious morality, some early and infrequent occurrences, and improbable testimony by the wife’s witnesses. The trial court is the judge of credibility of the witnesses and we defer to its determinations in that regard. The award of temporary custody is based upon substantial evidence and is affirmed.

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Raines v. Raines, 583 S.W.2d 564, 1979 Mo. App. LEXIS 2365 (Mo. Ct. App. 1979).

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