Turner v. Turner

5 S.W.3d 607, 1999 Mo. App. LEXIS 2109, 1999 WL 828630
CourtMissouri Court of Appeals
DecidedOctober 19, 1999
DocketNo. 22604
StatusPublished
Cited by8 cases

This text of 5 S.W.3d 607 (Turner v. Turner) 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
Turner v. Turner, 5 S.W.3d 607, 1999 Mo. App. LEXIS 2109, 1999 WL 828630 (Mo. Ct. App. 1999).

Opinion

ROBERT S. BARNEY, Judge.

Eric Marlon Turner (“Appellant”) appeals from a dissolution of marriage judgment entered by the Circuit Court of Howell County, Missouri. Appellant raises three points of trial court error. We reverse and remand the cause to the trial court with directions.

Appellant and Jessica Lynn Turner (“Respondent”) were married August 18, 1993. The marriage produced one child, Devin Quaid Turner (“Quaid”), born Au[609]*609gust 21, 1994. The trial court awarded Respondent primary physical custody of Quaid and awarded Appellant specified visitation and ordered Appellant to pay child support in the amount of $340.00 per month. However, the trial court made no provision for Quaid’s medical care through a health benefit plan. See § 454.60S.1

In Point One, Appellant contends that the trial court erred in awarding the primary custody of Quaid to Respondent. In Point Two, Appellant posits trial court error in not giving him credit for $2,376.00, constituting payments made by him on the parties’ mobile home while the couple was separated during a period of eight months. In Point Three, he asseverates that the trial court erred in making no determination as to which party should be responsible for maintaining “the minor child on a policy of health insurance” as required by Section 454.603.

An appellate court must affirm the trial court’s judgment in a dissolution case if it “is supported by substantial evidence, it is not against the weight of the evidence, and it neither erroneously declares nor applies the law.” In re Marriage of Sisk, 937 S.W.2d 727, 730 (Mo.App.1996); see Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). In reviewing the record on appeal, this Court accepts as true the evidence and inferences therefrom that are favorable to the trial court’s decree and we disregard all contrary evidence. See Sisk, 937 S.W.2d at 730. “The trial court is free to believe or disbelieve all, part or none of the testimony of any witness.” Id.

I.

In his first point on appeal, Appellant claims that he should have been awarded primary custody of Quaid because: a) Respondent has had sexual relations with three men besides Appellant in the two years prior to the trial; b) that Respondent “deprived [Appellant] of contact with the minor child in January of 1998 despite the fact that [Appellant] was entitled to physical possession of the child at that time”; c) that Appellant was the primary caregiver for the child during the course of the marriage; d) Respondent moved the child at least two times in the eight months between the separation and the trial and testified that she intended to move the child again when she married her fiancé; and, e) that Appellant has a “greater family support system” than Respondent.

In our review of the foregoing sub-points, we initially observe that “An appellate court will not disturb a trial court’s custody award unless it is manifestly erroneous and the welfare of the child requires some disposition other than that made by the trial court.” Sisk, 937 S.W.2d at 730. “We afford greater deference to the trial court’s decision in child custody determinations than in other cases.” Id. “An appellate court may not substitute its judgment for that of the trial court so long as there is credible evidence upon which the trial court can formulate its belief.” In re Marriage of Patroske, 888 S.W.2d 374, 384 (Mo.App.1994). When determining custody, the overriding consideration is the “best interests of the child.” § 452.375.2. Under section 452.375.2, the trial court is to “consider all relevant factors” including those specifically delineated. Id. The appellate court “must presume the trial court awarded custody in the child’s best interests, due to the trial court’s superior position in judging the credibility of the witnesses, along with their character, sincerity, and other intangibles not completely revealed by the record.” Sisk, 937 S.W.2d at 730; see also Patroske, 888 S.W.2d at 383.

Appellant’s first sub-point addresses the fact that Respondent had sexual relations with three men besides Appellant in the two years prior to trial. The trial court found that Respondent’s associations with other men during the marriage occurred [610]*610only during the times the parties were separated and that Quaid was not adversely affected by them.

This court acknowledges that “morals are a pertinent factor to be taken into account in determining whose custody will serve the best interests of the child.” In re Marriage of Berger, 950 S.W.2d 307, 310 (Mo.App.1997). However, “[e]xtra-marital sexual conduct does not brand a parent an unfit custodian if not accompanied by evidence that the conduct has had or may be expected to have an adverse effect on the child.” In re Marriage of Newberry, 745 S.W.2d 796, 797 (Mo.App.1988). “The issue is not condemnation or approval of a moral standard but whether the conduct is detrimental to the child’s welfare.” Id. Here, Respondent testified that Quaid was unaware of her sexual relationships with any of the men. She testified that her relationship with the first of the three men took place during the parties’ first separation, that he never spent the night at her house, and she only spent the night at his house on “the weekends [she] didn’t have Quaid.”

Respondent testified that the second of the relationships in question took place during the parties’ second separation and that it was a “friendly relationship.” Respondent admitted having sexual relations but testified that she “never spent the night with him” and that they “might have went one [sic] ■ out one night and didn’t [come] home.” However, “he never stayed at [Respondent’s] house, and [she] never stayed at his.”

The final extra-marital relationship was with the man Respondent testified that she was going to marry as soon as she was divorced. Respondent stated that Quaid “never knew nothing about” her sexual relations with this man. She testified that on one occasion he and his young son spent the night in Branson in the same room with her and Quaid. However, she testified that she slept in one bed with the boys while he slept in the other and that, if they did have sexual relations on that occasion, “it was when the kids were asleep ..., they weren’t aware of it,” and that she’d “never done anything like that in front of [her] son.”

The only evidence presented that Respondent’s actions may have adversely affected Quaid was Appellant’s own opinion that Quaid had been adversely affected by seeing these different men with his mother. However, the trial court was not required to believe Appellant’s testimony. Sisk, 937 S.W.2d at 730.

Considering the foregoing, we find no trial court error in its determination that Quaid “was never exposed to any intimacies between Respondent and any male companion and he has, therefore, not been adversely affected by them.” See Newberry, 745 S.W.2d at 797. Sub-point denied.

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Bluebook (online)
5 S.W.3d 607, 1999 Mo. App. LEXIS 2109, 1999 WL 828630, Counsel Stack Legal Research, https://law.counselstack.com/opinion/turner-v-turner-moctapp-1999.