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10/12/93 KATHRYN L. LUTHER v. ARTHUR G. VOGEL

October 12, 1993

KATHRYN L. LUTHER, F/N/A KATHRYN L. VOGEL, PETITIONER-APPELLANT,
v.
ARTHUR G. VOGEL, RESPONDENT-RESPONDENT.



Appeal from the Circuit Court of Madison County. Honorable Donald U. Elrod.

William H. Crandall, Jr., Presiding Judge, James R. Reinhard, Judge and Robert E. Crist, Judge: Concur.

The opinion of the court was delivered by: Crandall

Kathryn L. Luther, formerly Kathryn L. Vogel, (Mother) appeals from the trial court's denial of her motion to modify the child custody and support provisions of the decree of dissolution of her marriage to Arthur G. Vogel (Father). We affirm.

The marriage of Mother and Father was dissolved on January 30, 1989. There was one child born of the marriage, a boy born May 26, 1985. The decree of dissolution provided that Mother and Father have joint legal custody with primary physical custody in Mother. Father was granted certain rights of visitation and temporary custody and was ordered to pay Mother $50.00 per week as and for child support.

Approximately six months after the dissolution decree, Father brought a motion to modify, seeking primary physical and legal custody of the minor child. In his motion, Father alleged, inter alia, that the child wanted to live with Father, the child was being abused by Mother's husband, and Mother did not follow the custody order. Mother brought a cross-motion to modify seeking an increase in child support; termination of joint custody with primary legal custody being placed in her and a restriction on the child's contact with Father to six hours per month of "supervised visitation."

After hearing extensive evidence, the trial court denied both motions, keeping the joint custody order intact, increasing the amount of temporary custody granted to Father, and denying Mother's request for an increase in child support. In addition, Father was ordered to pay $1,500.00 of Mother's attorney's fees. Only Mother appeals from the judgment.

We view the evidence in a light most favorable to the decree. At trial, each party's expert testified that the best home environment for the child would be with that parent. There was considerable evidence of bitterness and caustic behavior between Mother and Father; both parties admitted that they had problems communicating with each other and did not get along. Mother admitted that she did not permit Father to share in the decision-making concerning the child's welfare and therefore had not followed the joint custody plan. She testified that Father is a good father and there was no "rhyme or reason" for her request to limit his contact with the child to six hours per month of supervised visitation.

The child of the marriage is learning disabled with special needs. He loves his parents. Both Mother and Father have remarried. There is substantial evidence in the record, albeit disputed, that the child gets along well with the respective new spouses and new siblings. Both parents love the child and are deeply concerned about his well being.

Although Father sought primary custody, he testified that if Mother kept primary physical custody, he wanted to continue with the joint legal custody arrangement. Mother testified that if the hostility between she and Father could be put to rest, she would be agreeable to leave the custody arrangements the way they were. Other facts will be developed as necessary under our Discussion of Mother's points on appeal.

Mother first contends that the trial court erred in denying her motion for cessation of joint custody to be replaced with primary custody in Mother "because the weight of the evidence clearly indicates that joint custody was a failure as evidenced by both parties' motions for modification and the record."

Our standard of review is set forth in the oft-cited Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). We do not review the case de novo. The power to set aside the decree on the ground that it is "against the weight of the evidence" should be exercised with caution and only if there is a firm belief that the decree is wrong. Id. at 32.

In a child custody proceeding it is the affirmative duty of the trial court to enter a decree that is in the best interest of the child; the best interest of the parents are secondary. Rumbolo v. Phelps, 759 S.W.2d 894, 895 (Mo. App. 1988). We therefore accord the trial court great deference. Id.

The legislatively expressed public policy in the State of Missouri is for joint legal custody, providing it is in the child's best interest. § 452.375.3 RSMo (Cum. Supp. 1992); In Re Marriage of Barnes, 855 S.W.2d 451, 455 (Mo. App. S.D. 1993). "'Joint legal custody' means the parents share the decision- making regarding the health, education and welfare of the child." Gulley v. Gulley, 852 S.W.2d 874, 876 (Mo. App. E.D. 1993). Further, joint custody may not be denied solely for the reason that one parent opposes it. § 452.375.4(1). A commonality of beliefs concerning parental decisions and the ability of the parties to function as a parental unit are important considerations in determining whether joint custody is in the child's best interest. Gulley, 852 S.W.2d at 876. The statutorily expressed preference for joint custody is simply a legislative recognition that a functioning parental unit is most likely to be beneficial to a child. It is the first option to be considered in making a child custody award.

Here, the trial court chose to continue an arrangement that had been entered into some six months before the hearing. Although there was hostility between Mother and Father, both have expressed a willingness to cooperate in the future in making decisions concerning their child's upbringing. Both parents appear ...


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