Mitchell v. Mitchell , 612 S.W.2d 20 ( 1981 )


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  • BILLINGS, Presiding Judge.

    Appeal from the order by the Butler County Circuit Court granting the father’s motion to modify custody. The father was awarded custody of the parties’ three-year-old daughter and the wife has appealed. She asserts inter alia, that there is no substantial evidence of changed circumstances to support the modification order. We agree and reverse.

    Samantha, the only child born to the parties, was placed in the custody of her mother, subject to reasonable visitation by the father, pursuant to the dissolution decree of February 9,1976. The decree was modified on March 27, 1978 giving the father the right to visit with Samantha on the third weekend of each month, two months out of the summer and on alternate Thanksgiving and Christmas holidays.

    The record reveals that both parties remarried in 1976. The mother, Theresa Mitchell Jones, has had two children from her second marriage and at the time of the hearing was pregnant with a third. She has one other child born before the parties were married. At the time of the hearing she was separated from her husband and had assigned her support rights from Mr. Jones to the State of Missouri in order to receive ADC. Though not presently employed, she also receives food stamps, food vouchers through the WIC program and state medical insurance.

    The father and his present wife are both employed in St. Louis, earning between $2,000 and $2,200 per month and own a house with a mortgage. They have no children of their own.

    The petitioner-father’s motion to modify alleged the following change of circumstances:

    “(a) Said child, while in the custody of the Respondent, Theresa Mitchell Jones, has been beaten, abused, mistreated and malnourished.
    (b) The conditions under which said child is forced to live while in the custody of the Respondent, present a severe danger to her life, health and emotional well being.”

    The party originally awarded custody is presumed to be a suitable custodian and the party seeking the change has the burden of showing that a change of circumstances warrants a change of custody. In re Marriage of Britton, 574 S.W.2d 475 (Mo. App.1978); § 452.410 RSMo 1978.

    Petitioner brought Samantha home during Thanksgiving, 1978, according to the terms of the 1978 modification order. The parties had agreed that she was to be returned to her mother around the first of the year. Petitioner failed to return Samantha and did not allow her mother to see Samantha when she went to St. Louis in mid-January. It was only with her uncle’s presence that Mrs. Jones was allowed to visit Samantha for 30 minutes in May of 1979.

    Petitioner and his present wife both claim that they saw scratches and bruises on Samantha after they brought her home during Thanksgiving. However, both further testified that they knew nothing as to the cause of these injuries or of Samantha’s home life with her mother. There was no evidence that Samantha had similar injuries at any other time.

    Their testimony also reveals that the only treatment that the doctor performed was to swab cotton over the scratches and the only prescription was for a decongestant. It appears that he did however, order that Samantha take vitamins and eat a balanced diet. After six months with petitioner and his wife, the record reveals little change in the smaller-than-average Samantha.

    Change in circumstances “denotes the concept of conditions which come into existence after the decree or become known after the decree, which if known at the time would have caused the court to make a disposition other than it did.” McPherson v. McPherson, 447 S.W.2d 791, 794 (Mo.App.1969). It appears clear that no such change in circumstances has occurred. And while *22it may well be that the father’s financial situation is “better,” this is not evidence supporting any need for change. Klaus v. Klaus, 509 S.W.2d 479 (Mo.App.1974).

    It is the duty of this court to reach its own conclusion based on the law and the evidence and enter such judgment as the trial court should have entered. Korn v. Korn, 584 S.W.2d 179 (Mo.App.1979).

    The order modifying custody is reversed.

    HOGAN and PREWITT, JJ., concur. GREENE, J., dissents and files opinion.

Document Info

Docket Number: No. 11640

Citation Numbers: 612 S.W.2d 20

Judges: Billings, Files, Greene, Hogan, Prewitt

Filed Date: 2/2/1981

Precedential Status: Precedential

Modified Date: 10/1/2021