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June 21, 1983


From the Circuit Court of St. Louis County; Civil Appeal; Judge William M. Corrigan.

Before Crandall, P.j., Reinhard, Crist, JJ.

The opinion of the court was delivered by: Reinhard

Husband appeals provisions of dissolution decree regarding temporary child custody, distribution of property and attorney's fees. We affirm.

The basic facts are not in dispute. The parties were married for four years. Husband owned a house prior to marriage, which was encumbered by a deed of trust. During the marriage, husband conveyed this real estate to himself and his wife as a tenancy by the entirety. Wife worked as a clerk for the Federal Reserve; husband resigned his position at the Special School District prior to the hearing.

The parties have one child. At trial, however, husband admitted that the had sexual relations with another woman while wife was pregnant and that during the marriage he impregnated the other woman. He further stated that although the other woman was still married, he lived in her house with their child.

The court filed findings of fact and Conclusions of law. In its decree, the court awarded general custody of the two year old daughter to the wife. The husband was granted reasonable rights of visitation, as well as the right to temporary custody of the child on alternate weekends, alternate national holidays including Mother's and Father's Days, and for a period of two weeks during the child's summer vacation. The court further stated, "the Respondent ordered not to have said child, during Respondent's periods of temporary custody, overnight in any habitation in which Respondent and any adult female to who Respondent is not married or related, are present." Husband challenges that portion of the custody provisions which prohibits overnight custody of his child when a woman not his wife is present.

The circumstances surrounding the custody decree in this case are remarkably similar to those of Bull v. Bull, 634 S.W.2d 228 (Mo. App. 1982). There, husband was living with a woman not his wife. The court entered an order awarding permanent custody to the mother. Temporary custody by the husband was limited to times which prevented the child staying overnight in the home where the father lived with a woman not his wife. This court's holding in Bull is equally applicable in the present case:

At the time of the hearing, Stephen was age 11. Husband was living in a substantial home on the Lake of the Ozarks with his secretary. Although the trial court made no specific finding, it is apparent the court refused to grant husband overnight custody of his son because a woman not his wife was residing in husband's home. Under these circumstances, we cannot second guess the trial court's determination this arrangement was in the best interest of the minor child.

634 S.W.2d at 229. Indeed, as we noted in Bull, the best interests of the child are of paramount concern to the court. 634 S.W.2d at 229; Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976). Moreover, the trial court's judgment should not be disturbed unless the best interests of the child so demand. In re Marriage of Hallak, 559 S.W.2d 612, 613 (Mo.App. 1977).

In the present case, the court did not name the woman who was the object of the order; however, the intent of the trial court's order is clear. To protect the child's best interests, the minor child of this marriage was not to stay overnight in a home with her father wherein he was with Conni D. and they were not married. The evidence clearly indicated that at the time of the hearing he was living with Connie D. in her home and that she was not, at that time, divorced from her husband. Under the circumstances, we do not find the trial court's order as to child custody to be an abuse of its discretion. The court acted in what it believed to be the child's best interests.

The second issue on appeal concerns the trial court's division of marital property. Husband's major complaint with the Disposition of the property is that "the court abused its discretion in awarding an excessively large portion of the marital property to the petitioner . . . ." After hearing the evidence, the court awarded to the wife approximately $28,000.00 in marital property, of which $24,500.00 was the equity in the family home. Likewise, approximately $10,000.00 was awarded to husband. Based upon this computation, wife received approximately 74% of the marital property and husband 26%. Furthermore, wife contends that when you consider marital funds which husband expended (he claimed paid for marital debts) prior to trial, the Disposition more closely approximates a 50/50 division.

Husband, however, contends that since he must repay his mother $6,000.00 for money advanced when he purchased the home prior to marriage, the Disposition is 87.5% to the wife and 12.5% to the husband. The evidence revealed that when the son purchased the house he was 19 years of age and that his mother loaned $6,000.00 to him as a down payment. The bank was told this money was a gift. Husband offered into evidence a document which stated:


January 20, 1973 ...

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