APPEAL FROM THE CIRCUIT COURT OF SCOTT COUNTY. Honorable David C. Mann, Judge
Shrum, Parrish, Montgomery
The opinion of the court was delivered by: Shrum
In this dissolution of marriage action, Jerry Michael Nix (Father) appeals from the trial court's award of child custody and its order that he pay the attorney fee of Brooke Anne Nix (Mother). We affirm.
This action, aptly described by Father in his brief as a "battle," is particularly tragic because of the three children born of the marriage, the oldest of which was 5 at the time of trial. No jurisprudential purpose would be served by recounting the specific evidence, presented by both parents, on the custody issue.
The action was initiated by Mother's petition for legal separation in which she sought "the care, custody and control of the minor children . . . ." In his original answer Father requested dismissal of Mother's petition, denying Mother's allegations that the marriage was irretrievably broken and that it was in the best interests of the children to be in the care, custody, and control of Mother. In an amended answer, Father averred the marriage was irretrievably broken, and he asked the court to dissolve the marriage and award "the primary care, custody and control" of the children to him.
We quote pertinent portions of the trial court's decree:
Testimony was presented and after considering the pleadings and evidence given in support thereof, the Court made the following findings of fact, to wit:
That said minor children are presently in the care and custody of [Mother,] and the Court, having considered all relevant factors as set forth in Section 452.375 RSMo, finds that it would be in the best interest of the minor children for the primary care, custody and control of the minor children to be awarded to with reasonable rights of visitation to consistent with this Court's Order.
It is therefore ordered, adJudged and decreed by the Court . . . that custody of the minor children of the parties is granted to subject to [Father's] reasonable rights of visitation set forth more specifically as follows:
Alternating weekends from 6:00 p.m. on Friday until 6:00 p.m. on Sunday; alternating major holidays as follows: New Year's Day, Memorial Day, Labor Day, and Christmas Eve in odd numbered years and President's Day, Independence Day, Thanksgiving Day, Christmas Day in even numbered years, from 9:00 a.m. to 6:00 p.m.; shall further have rights of visitation on Father's Day from 9:00 a.m. to 6:00 p.m. if said day does not fall on a scheduled weekend visitation and shall have custody of the children on Mother's Day beginning from 9:00 a.m. if said holiday falls on a weekend of [Father's] scheduled visitation; shall further have two non-consecutive two week periods of temporary custody during the summer months.
It is further ordered, that shall provide for transportation of the children under the terms of visitation, but that shall not enter the residence of while receiving or delivering the children.
In his first point on appeal, Father contends the trial court erred "in awarding Mother the primary physical custody of the minor children in that the overwhelming, credible evidence showed that the best interest of the minor children would be served by Father having the primary physical custody of the minor children."
Section 452.375, RSMo Supp. 1990, governs this child custody determination. Subsection 1 defines joint legal custody and joint physical custody as follows, ...