Vm v. Lm

526 S.W.2d 947
CourtMissouri Court of Appeals
DecidedAugust 26, 1975
Docket36060
StatusPublished

This text of 526 S.W.2d 947 (Vm v. Lm) 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
Vm v. Lm, 526 S.W.2d 947 (Mo. Ct. App. 1975).

Opinion

526 S.W.2d 947 (1975)

In re the Marriage of V. M., Petitioner-Respondent,
v.
L. M., Respondent-Appellant.

No. 36060.

Missouri Court of Appeals, St. Louis District, Division Two.

August 26, 1975.

*948 Colson & Wagner, James E. Alexander, Farmington, for respondent-appellant.

Charles G. Hyler, Farmington, for petitioner-respondent.

STEWART, Judge.

This proceeding for the dissolution of the marriage of V. M. and L. M. under § 452.300 et seq.[1] was commenced by V. M., the husband, as petitioner. The trial court found that the marriage was irretrievably broken and entered judgment dissolving the marriage. As more fully developed herein, the court made a division of marital property; granted custody of 3 of the unemancipated minor children to respondent, and 2 of the children to petitioner, and made an order for maintenance and child support.

The wife appeals contesting the division of the property, the allowances for maintenance and child support and the award of custody of Mary Jane, age 16, and Andy, age 15, to the father all for the reason that the trial court failed to consider all relevant factors as set forth in the applicable statutes.

The parties were married for one month short of twenty-five years when they separated. Eight children were born of the marriage. At the time of the trial five of the children were minors. Richard (18), Mary Jane (16), Andy (15), Joe (12), and Betsy (14), a retarded child. The husband and wife had acquired a fair amount of property.

We shall develop the facts more fully as they relate to the points raised.

Sections 452.300 to 452.415, titled Dissolution of Marriage, which became effective January 1, 1974, have made significant changes in the field of family law in Missouri. Our legislation is patterned after the Uniform Divorce Act (U.L.A.) Sections 301-410, with notable exceptions.[2] Primarily this act has eliminated the concept of the innocent and injured spouse who may discard the miscreant spouse. The basis for severing the marriage bond is now based *949 upon the factual finding that the marriage is irretrievably broken.[3] § 452.305.

That portion of the decree dissolving the marriage is not contested. There was sufficient substantial evidence to support the finding. We need not discuss § 452.305 further.

In accordance with Rule 73.01(3)(a) it is our duty in this court-tried case to review both the law and evidence and to render such judgment as the trial court ought to have given. T. v. T., 447 S.W.2d 795 (Mo.App.1969). To properly fulfill our obligation we must be presented with a record upon which we can function with a "degree of confidence in the accuracy of our final judgment". State ex rel. Highway Commission v. Hill, 373 S.W.2d 666, 668 (Mo.App.1963). With these principles in mind, as developed hereafter, we must reverse this case in part and remand it to the trial court for further proceedings.

CUSTODY

The wife challenges the award of custody of Mary Jane, age 16, and Andy, age 15, to the husband. The husband has not sought custody of the other three children and has not contested the award of those children to their mother. At the time of the trial the children, Richard (18), Betsy (14) and Joe (12) lived with their mother in the family home at Delassus, Missouri, which adjoins Farmington, Missouri. Betsy, who is retarded, attends a special school at the State Hospital in Farmington. The husband was living in open adultery with another woman and Mary Jane was living in the house with her father and the other woman and her daughter. Andy was living by himself in a small house near his father's business. The wife, prior to the dissolution proceedings, took Andy to his father because she was unable to manage him. The father was "unable" to keep him in the house with his lady friend so he put Andy by himself in a small house near his business.

Probably the most difficult task faced by a trial court is that of determining custody of children. § 452.375 now governs the question of custody in a proceeding to dissolve a marriage. It is no panacea for this problem. That section reads as follows:

"The court shall determine custody in accordance with the best interests of the child. The court shall consider all relevant factors including:
(1) The wishes of the child's parents as to his custody;
(2) The wishes of a child as to his custodian;
(3) The interaction and interrelationship of the child with his parents, his siblings, and any other person who may significantly affect the child's best interests;
(4) The child's adjustment to his home, school, and community; and
(5) The mental and physical health of all individuals involved."

The factors listed in the statute are not exclusive. They must be considered along with all other relevant factors. The prime consideration is still the best interest of the child. There is no exact formula for the determination under this worthy but nebulous standard. Some of the general precepts which have long been enunciated are still germane to this problem. An award of custody may not be used to reward or punish a parent. L. v. N., 326 S.W.2d 751 (Mo.App.1959). Adultery in itself will not necessarily disqualify a parent as unfit. Klaus v. Klaus, 509 S.W.2d 479 *950 (Mo.App.1974). However, the moral fitness of the person seeking custody of a child is a proper subject for the court's consideration. Stockton v. Guthary, 415 S.W.2d 308 (Mo. App.1967).

With respect to the wishes of the parents, the wife specifically testified that she wanted custody of each of the children. There is no direct testimony from the husband on this factor. He does not permit Andy to live in the house with him but opposes a change of the award of custody. Mary Jane lives with him and from his actions we can infer that he wishes custody of his daughter.

The evidence of the children's wishes is purely hearsay. The husband testified that Andy would rather be with his mother. He further testified that Mary Jane would prefer being with him. Mrs. M. said that Mary Jane would like to come with her but Mr. M. would not repair Mary Jane's car if she returned to her mother. There is no evidence in the record that the court interviewed the children as provided in § 452.385.

There is no evidence concerning the interaction or of the relationship between these two children and their brothers and sisters; none as to the relationship with the parents except that the father said that Andy loved his mother, and there was a problem between the mother and Mary Jane concerning the girl's motorcycle. As to Mary Jane's interaction and relationship with the woman her father is living with and who may "significantly affect her best interest", the record is devoid of any evidence. All we know is that this woman is living in open adultery with the father and that Mary Jane lives in the house with them.

The transcript is practically devoid of evidence on the factors (4) and (5) listed above.

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Related

T. v. T.
447 S.W.2d 795 (Missouri Court of Appeals, 1969)
State Ex Rel. State Highway Commission v. Hill
373 S.W.2d 666 (Missouri Court of Appeals, 1963)
Stockton v. Guthary
415 S.W.2d 308 (Missouri Court of Appeals, 1967)
In Re M---P---S
342 S.W.2d 277 (Missouri Court of Appeals, 1961)
Simon v. Simon
248 S.W.2d 560 (Supreme Court of Missouri, 1952)
McCallister v. McCallister
455 S.W.2d 31 (Missouri Court of Appeals, 1970)
Klaus v. Klaus
509 S.W.2d 479 (Missouri Court of Appeals, 1974)
J. v. E.
417 S.W.2d 199 (Missouri Court of Appeals, 1967)
L v. N
326 S.W.2d 751 (Missouri Court of Appeals, 1959)
Hoffmann v. Hoffmann
395 S.W.2d 277 (Missouri Court of Appeals, 1965)
Ortiz v. Ortiz
465 S.W.2d 662 (Missouri Court of Appeals, 1971)
Marriage of V. M. v. L. M.
526 S.W.2d 947 (Missouri Court of Appeals, 1975)

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Bluebook (online)
526 S.W.2d 947, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vm-v-lm-moctapp-1975.