Shelton v. Patterson

777 S.W.2d 315, 1989 Mo. App. LEXIS 1378, 1989 WL 110451
CourtMissouri Court of Appeals
DecidedSeptember 26, 1989
DocketNo. WD 41423
StatusPublished

This text of 777 S.W.2d 315 (Shelton v. Patterson) 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
Shelton v. Patterson, 777 S.W.2d 315, 1989 Mo. App. LEXIS 1378, 1989 WL 110451 (Mo. Ct. App. 1989).

Opinion

GAITAN, Judge.

This appeal derives from a motion to modify a 1986 decree of dissolution filed by appellant, Jack Shelton, wherein he sought custody of the minor child, Amy Jolene. The trial court directed a verdict and entered judgment in favor of respondent, Dorothy (Shelton) Patterson at the conclusion of appellant’s evidence. We affirm.

These parties were married in June, 1982, and one child, Amy, was born on August 7, 1983. The marriage ended by uncontested divorce granted in Val Verde County, Texas. At the time of the filing of the petition the parties resided in Texas as a consequence of appellant’s military service. Both parties had moved from the state of Texas by the time the divorce was granted on August 4, 1986. As a consequence of the divorce and separation agreement, respondent received custody of the minor child and appellant was afforded certain specific visitation rights which included every other weekend and every other holiday. Pursuant to this agreement, appellant made child support payments of $125.00 per month through the District Court in Val Verde County, Texas.

After his discharge from the service, appellant resided at his mother’s house at 1423 Northern in Independence, Missouri on May 17, 1986. He lived with his mother until moving to an apartment about July 1, 1986. Appellant began working as a fueler for Ogden Allied at the Kansas City Airport on May 28,1986. It is undisputed that respondent, without either appellant’s consent nor that of the court, removed herself and the minor child from Texas. Respondent moved to Grant City, Missouri to‘her parents’ home. This occurred the latter part of April, 1986.

[316]*316The appellant testified that he attempted to see Amy after he returned to Independence, Missouri. Appellant testified he then drove up to their house on his next day off and found no one home. He testified that it appeared no one had been there for a while because the weeds were starting to grow. Appellant also testified he did not write to them to tell them he was coming for a visit. His reason was that he does not like to write; he would rather talk to somebody in person or call. Apparently he called, but got no answer.

The appellant testified he next heard from the respondent via a letter in June in which respondent informed him of dates on which she would be in four towns in Nebraska in the month of June. The letter appears to be postmarked on June 2, 1986 and was mailed to appellant at his mother’s address. The letter stated that appellant could call the town sheriff to leave a message for respondent to call him. Apparently, this procedure was used by respondent to contact her parents when they traveled with the carnival. Although the letter contains no reference to traveling with a carnival, the appellant testified that is what the respondent was doing.

The appellant testified that he attempted to call the sheriff in Pender, Nebraska, the last location in the letter, to see his daughter. No arrangements were made as a result of that conversation. Appellant testified that he felt future contacts with the sheriffs office were not a viable means to see his daughter.

The appellant received a second letter from respondent. This letter also was sent to the appellant at his mother’s address. The letter was dated June 13, 1986 and set out the rest of respondent’s summer tour. The letter stated they would mostly be in Nebraska but could be reached through the sheriff’s office. This letter informed appellant of the thirteen locations the respondent and Amy would be at from July 2 through September 14, 1986. Although the towns were mostly in Nebraska, the last four towns were in Missouri. This letter was postmarked June 14, 1986 and gave respondent’s return address as P.0. Box 345, Grant City, Missouri.

The appellant received a Father's Day card from the respondent. He next heard from respondent about the end of June when he talked to her on the telephone. The respondent inquired whether appellant received the card. Appellant testified that he told respondent during this conversation his dislike for his child traveling in a carnival and that the respondent stated, “I don’t see anything wrong with it.” Appellant testified he expressed a desire to have his daughter for at least a week and was told that he could have her from a Friday night at six until Sunday at six, which were the terms of the settlement agreement which was to be incorporated in the divorce decree. Appellant testified that he was not able to visit per the terms of that agreement at the time because he was on probationary status for 60 days after the date of his hiring by Ogden Allied on May 28,1986. He felt that requesting a specific weekend off would jeopardize his employment during this 60 day period.

Appellant and his mother sent a present to Amy for her birthday on August 7, 1986. This present was sent to the Grant City address. He received an acknowledgment of that gift. Respondent had to call appellant’s mother because she did not have his phone number. Appellant next spoke with respondent around the first of September. His mother had received a phone call from her in which respondent gave a telephone number for appellant to call her. Appellant testified he believed this telephone call came from Oklahoma. Appellant testified he returned the call and again requested to have Amy for a week or two but that respondent said he could come down there and visit according to the terms of the decree. Appellant testified that he did speak with Amy, but that he did not call that number again to visit with Amy or to see how she was doing.

The next communicatiori from respondent that appellant received was a letter dated October 20, 1986 mailed from Oklahoma City. The letter was addressed to appellant at his mother’s address. Respon[317]*317dent stated they were no longer with the carnival but were in Oklahoma City, Oklahoma. Respondent wrote that she had been trying to get hold of appellant and left a phone number with his mother. Respondent also included a telephone number where appellant could call respondent. Respondent also enclosed news about Amy. Respondent included her return address on the envelope and the letter.

Appellant never wrote to Amy at this address or any other address apparently because he does not write. He also testified that he never called to set up a time for respondent to call him because he didn’t know his work schedule more than one day in advance. At that time appellant still had not given respondent the telephone number for his residence.

Appellant next spoke with respondent in January of 1987. His mother lives just a block from respondent’s Aunt Mickey in Independence. He testified he was “just driving by” the house and saw respondent. He testified he offered to watch Amy while respondent and her husband looked for jobs, but that respondent stated Amy was with her parents. He testified she said no when he offered to drive up and get her.

Appellant saw his daughter for an hour in February. He was in the hospital as the result of knee surgery. The respondent called his mother to see if appellant wanted to see Amy before she left town. His mother brought Amy to see him as he was coming out of the anesthesia. Appellant’s wife, Brenda, testified there was nothing noticeable about Amy’s appearance at that time. She testified Amy did have chapped lips.

Appellant next saw Amy at the end of February 1987 when respondent called his mother to see whether appellant wanted to have Amy overnight. He exercised that visitation.

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Bluebook (online)
777 S.W.2d 315, 1989 Mo. App. LEXIS 1378, 1989 WL 110451, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shelton-v-patterson-moctapp-1989.