Reid v. Reid

742 S.W.2d 248, 1987 Mo. App. LEXIS 5159
CourtMissouri Court of Appeals
DecidedDecember 29, 1987
DocketNo. 14787
StatusPublished
Cited by2 cases

This text of 742 S.W.2d 248 (Reid v. Reid) 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
Reid v. Reid, 742 S.W.2d 248, 1987 Mo. App. LEXIS 5159 (Mo. Ct. App. 1987).

Opinion

HOGAN, Judge.

In this proceeding for dissolution of marriage, respondent Janice Reid (to whom we shall refer as the defendant) appeals from the provisions of the decree awarding principal custody of the children to the petitioner (to whom we shall refer as the plaintiff) and further appeals from the division of marital property.

The parties were married March 23, 1973, at Alton, Illinois, and were finally separated June 18, 1985. They are the parents of two children, a female child born April 13,1976, and a male child bom March 23, 1980.

The parties are relatively young people. At the time of trial, plaintiff was 35 years of age; defendant was 34. The plaintiff was a self-employed construction worker; defendant had no particular marketable skills, but was employed as a waitress.

The parties’ marriage was never very successful. The defendant testified that she first considered leaving her husband “maybe five or six years” before their final separation, but apparently the parties got along without remarkable incident until the summer and fall of 1985. About this time, plaintiff was working in St. Louis, commuting to the family home in Ellington, Missouri, “maybe once a week, sometimes on the weekends.” The defendant became convinced that she and the plaintiff needed to consult a “counselor” because the plaintiff was not communicative. Plaintiff promised to see a counselor at the VA Hospital in Poplar Bluff, but failed to keep the appointments the defendant made for him.

One of the major sources of difficulty between the parties was the defendant’s association with one Mike Lilliker, a “counselor” employed by the Reynolds County School District. Lilliker and the defendant became acquainted in April 1985. Very shortly thereafter, the defendant began confiding her personal problems to Lilliker —in her words, “[pjersonal things as regarding my children, my relationship with Denny [her husband], what I was going to do, schooling, a lot of things like that.” Lilliker was not a.marriage counselor, but he consulted with the defendant on several occasions, and gave her some literature which he believed would help her with her marital problems.

In June 1985, the defendant decided to go to Michigan. Her testimony, at one point, was that she was obliged to leave Ellington because the plaintiff had threatened her. Plaintiff emphatically denied the threat. Whether or not she was threatened, the defendant took her children to her sister’s house in Grand Rapids, Michigan, without advising the plaintiff where she was going. The plaintiff located the defendant, and suggested that he come to Michigan. The defendant “didn’t want that” but advised the plaintiff that she would return to Ellington.

[250]*250It was the plaintiffs testimony that the defendant, upon her return from Michigan, left the children with him and went to Cape Girardeau with her stepfather. Although the precise sequence of events is not clear, it was about this time that defendant decided to go to Florida with Lilliker. Lilliker’s testimony was that he intended to go to Florida, but did not initially plan to take the defendant along. Lilliker had a friend in Memphis who had indicated that the defendant might stay with her if the defendant needed a place to stay. However, when the defendant and Lilliker got to Memphis, Lilliker’s friend was not at home. The defendant and Lilliker went on to Florida, where they stayed about a week. Both Lilliker and the defendant assured the court that their association was neither immoral nor improper. In July 1985, this action was commenced.

The trial court divided the custody of the children, ordering that the plaintiff have primary custody. The court further ordered that the defendant have custody of the children on the first and third weekends of each month from 7 p.m. Friday to 7 p.m. Sunday, and that the defendant have custody of her children from 12 noon June 10 to 12 noon July 22 of each calendar year. Defendant was also granted custody of the children from 12 noon December 25 to 12 noon January 1 every year. The defendant contends that this award of custody is not in the best interest of the children and further, that it constitutes a punitive award of custody based on the defendant’s “perceived” misconduct.

We are cited to Murphy v. Carron, 536 S.W.2d 30, 32[l-3] (Mo.bane 1976), wherein our Supreme Court defined the scope of appellate review in court-tried cases. The teaching of Murphy v. Carron is that we should affirm the judgment of the trial court unless: 1) there is no substantial evidence to support it; 2) it is against the weight of the evidence, or 3) the trial court has erroneously declared or applied the law. We are admonished that we should exercise our authority to set aside a judgment or decree as being against the weight of the evidence cautiously, when an examination of the record generates a firm belief that the decree or judgment is wrong. Murphy v. Carron, 536 S.W.2d at 32. The defendant’s thesis, nevertheless, is that we should accept her evidence as true and disregard the plaintiff’s evidence. Such is not the law. In a dissolution case, as in other bench-tried cases, the trial court is arbiter of the facts and may believe or disbelieve any of the testimony in whole or in part. In re Marriage of Campbell, 685 S.W.2d 280, 283[4-6] (Mo.App.1985). In particular, disputes concerning the custody of children must be resolved on their peculiar facts, rather than in terms of academic rules. In re Marriage of Campbell, 685 S.W.2d at 283; Stockton v. Guthary, 415 S.W.2d 308, 311[2] (Mo.App.1967).

We have carefully examined the record and we find no abuse of discretion in the trial court’s award of custody. Our courts have on many occasions held that custody of the children may be awarded to the father if such an award serves the best interest of the children, even though the mother is a fit and proper custodian. Ackfeld, v. Ackfeld, 483 S.W.2d 614, 616 (Mo.App.1972); Hugeback v. Hugeback, 444 S.W.2d 23, 28 (Mo.App.1969). There is substantial evidence in this record that the plaintiff is and has been a concerned and effective parent. Gene Pratte, a family counselor to whom the plaintiff and the children were referred, believed that the children were getting along “okay” in their present situation, and the childrens’ teachers testified that they were doing well in school. The plaintiff testified that he is usually at home by 4:30 or 5:30 p.m., and that he has reliable baby-sitters available if it is necessary for him to be away from home. The defendant argues that her daughter was, on one occasion, subjected to some sort of sexual molestation by a relative of a baby-sitter no longer employed by the plaintiff and maintains that this demonstrates plaintiff’s insensitivity to the welfare of his children. This argument is not supported by the record. The incident was investigated by the Division of Family Services and the case worker who investigated the reported molestation had “no concern [251]*251about the children being with [the plaintiff].” To reiterate, there is no evidence in the record before us which would compel the conclusion that the plaintiff is not a fit custodian of his children.

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Bluebook (online)
742 S.W.2d 248, 1987 Mo. App. LEXIS 5159, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reid-v-reid-moctapp-1987.