Zimmerman v. Zimmerman

29 S.W.3d 863, 2000 Mo. App. LEXIS 1625, 2000 WL 1617769
CourtMissouri Court of Appeals
DecidedOctober 31, 2000
DocketNo. 23700
StatusPublished
Cited by2 cases

This text of 29 S.W.3d 863 (Zimmerman v. Zimmerman) 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
Zimmerman v. Zimmerman, 29 S.W.3d 863, 2000 Mo. App. LEXIS 1625, 2000 WL 1617769 (Mo. Ct. App. 2000).

Opinion

PHILLIP R. GARRISON, Judge.

In this appeal, Geoffrey Zimmerman (“Father”) contests the trial court’s award of primary physical custody of his two children to Teresia Zimmerman (“Mother”) as part of its judgment dissolving their marriage. He contends that the judgment, in that respect, was against the weight of the evidence, and was contrary to Mother’s admission, as a result of her failure to respond to a request for admission, that it wasún the best interests of the children that he receive primary physical custody of them.

Two children were born of the marriage between Father and Mother, to wit: E.Z., born September 12, 1992, and A.Z., born October 14, 1993. In this suit for dissolution of marriage, initiated by Father, both parties sought primary physical custody of the children, but agreed that joint legal custody should be granted. Mother, who acted pro se at trial, failed to respond to a request for admissions directed to her by Father’s attorney asking her to admit that: (1) “It is in the best interests of the children that they be placed in the primary physical custody of [Father], with the parties to share joint legal custody”; and (2) “[Father] is better suited to be the primary physical custodian of the children.”

At trial, Father testified that Mother had written a number of bad checks and that there was a warrant for her arrest as a consequence of one such check. He also testified that Mother had lied to him about her father’s health when asking Father to keep the children on one occasion, had not returned for the children when she said she would, and generally indicated that Mother was of poor character. He also identified photographs of an apartment [866]*866that Mother had vacated, which demonstrated what Father characterized as unsanitary conditions consisting of accumulations of trash and a dirty cook stove.

Mother testified, admitting that she had had problems writing bad checks, but disputed much of Father’s testimony that might have reflected on her care of the children. Her evidence indicated that the children had been in her physical custody, and that she had cared and nurtured them as a loving parent. She disputed the photographs presented by Father and explained that the photographs were taken while she was in the process of moving out and before all of her belongings and the trash, which was a product of the move, had been taken away. Mother also indicated in her testimony that Father had shown little interest in the children prior to their separation, and had only begun to show an interest when the issue of child support arose. In fact, the evidence indicated that when the children had chicken pox, Father had stayed with a female friend rather than risk his exposure to the disease. According to Mother’s testimony, she had demonstrated more of an interest in the children’s education than had Father, and she had a job at their school if she could obtain transportation.

We believe it is fair to say that the evidence presented by Mother and Father was conflicting concerning which parent was better suited to have the primary physical custody of the children. The trial court entered a judgment adopting a parenting plan submitted by Mother and granting joint legal custody of the children to Mother and Father, with Mother to have primary physical custody subject to Father’s specified visitation privileges. Father appeals.1

The scope of our review of this court tried case is set forth in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).2 The judgment of the trial court will be sustained unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Id. at 32. Under this standard, considerable deference is accorded judgments turning on evidentiary and factual evaluations by the trial court. In re Marriage of Fry, 827 S.W.2d 772, 775-76 (Mo.App. S.D.1992).

When reviewing a child custody case, the decision of the trial court is given greater deference than in other cases. In re C.N.H., 998 S.W.2d 553, 557 (Mo.App. S.D.1999). A trial court is vested with considerable discretion in determining custody questions, and appellate courts should not disturb the trial court’s findings unless firmly convinced that they are manifestly erroneous and the child’s welfare compels a different result. In re Marriage of Campbell, 868 S.W.2d 148, 150 (Mo.App. S.D.1993). In reviewing a judgment involving custody, due regard must be given to the opportunity of the trial court to judge the credibility of the witnesses and to evaluate intangibles which do not appear from the cold record. Id. With respect to this case, it is important to remember that the trial court is free to believe or disbelieve all, part or none of the testimony of any witness. Id. The appellate court is to accept as true the evidence and inferences that are favorable to the trial court’s decree and disregard all contrary evidence. Id. In a case where, as here, neither party requested findings of fact and conclusions of law, the appellate [867]*867court must presume that all fact issues were found in accordance with the judgment. Id.

In his first point on appeal, Father contends that the judgment awarding primary physical custody of the children to Mother was against the weight of the evidence. In support, he argues that there was evidence that Mother was of poor character, was guilty of poor parenting, had an outstanding warrant for her arrest, had kept the children in unsanitary living conditions, had dropped the children off with Father for a day and did not reappear for a week, and had lied to him about her father’s health. Generally, Father describes Mother as being guilty of a “pattern of theft and lies and general bad character and judgment that was not in the best interests of the children,” and that she had admitted that Father was a “good father.”

An appellate court should exercise the power to set aside a judgment on the ground that it is against the weight of the evidence with caution and a firm belief that it was wrong. Murphy, 536 S.W.2d at 32. “Weight of the evidence” means its weight in probative value, not the quantity or amount of evidence. Goodnight v. Curry, 618 S.W.2d 278, 279 (Mo.App. S.D.1981).

While Father presented evidence which, if believed, would support many of the conclusions he contends the trial court should have reached, it is important to recognize that Mother testified and refuted most, if not all, of Father’s allegations. Her testimony could have been construed by the trial court as that of a loving, attentive parent who was doing the best she could do to raise her children under the circumstances. It could have also believed that those circumstances were contributed to by Father’s unwillingness to assist her financially during the pendency of the proceedings.

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Bluebook (online)
29 S.W.3d 863, 2000 Mo. App. LEXIS 1625, 2000 WL 1617769, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zimmerman-v-zimmerman-moctapp-2000.