Wallace Cotton, Plaintiff/Appellant, v. Viva Wise, Defendant/Respondent.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: Wallace Cotton, Plaintiff/Appellant, v. Viva Wise, Defendant/Respondent. Case Number: 72433 Handdown Date: 02/17/1998 Appeal From: Circuit Court of the City of St. Louis, Hon. Thomas J. Frawley Counsel for Appellant: Deborah Benoit Counsel for Respondent: Marie Kenyon, Bryan Hettenbach and Mary Elizabeth Davidson Opinion Summary: Natural father sought return of his children from their half-sister by writ of habeas corpus. The half-sister initiated custody proceedings. The circuit court granted legal custody to the half-sister. Natural father appeals. AFFIRMED. Division One holds: In custody cases: (1) the paramount consideration is the well-being of the children; (2) there is a rebuttable presumption that children's welfare is best served by parental custody; (3) the presumption is superseded by state concerns for children's welfare; (4) special and extraordinary circumstances may rebut the parental presumption; (5) the natural parent need not be found unfit for custody to vest in a third party; and (6) direct appeal of a writ of habeas corpus is limited to custody proceedings with no prior court order. Citation: Opinion Author: James A. Pudlowski, Judge Opinion Vote: AFFIRMED. Grimm, P.J., and Gaertner, J., concur. Opinion: Wallace Cotton appeals the trial court's judgment granting Viva Wise primary custody of his two children, S.A. and D.S. Wallace claims the trial court erred in granting Viva legal custody and denying his petition for writ of

habeas corpus. We affirm. Bobbi Jo (Bobbi Jo) married Wallace (Wallace) Cotton on 14 June 1982. At the time she married Wallace, she had two daughters, ages 9 and 7, who were not related to Wallace. While Wallace resided with Bobbi Jo, there were daily altercations marked with physical violence against both Bobbi Jo and her girls. Wallace was jailed for one week due to his violent behavior. Eventually, one of the daughters moved out of the residence due to her acrimonious relationship with Wallace. Bobbi Jo and Wallace had two children during their marriage: S.A. born in November 1986 and D.S. born in September 1988. Wallace moved out of the family home before D.S.'s birth. During the time Wallace and Bobbi Jo were separated, he failed to maintain child support payments and currently owes over eleven thousand dollars. He failed to return to the home until 1995. Bobbi Jo died six months later on 19 January 1996. Following Bobbi Jo's death, her three children living at home moved into the home of a maternal relative. Wallace did not accompany them. Bobbi Jo's daughter, Viva Wise (Viva), took primary responsibility in caring for her two half-siblings, Wallace's children, without support from Wallace. S.A. and D.S. continued to have visitation with Wallace. Viva and the children moved several times to various family member's homes until Viva secured her separate residence where she and the children currently reside. In determination of child custody, we will affirm the decision of the trial court unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). There is no absolute rule to follow when determining the outcome of a custody case; each situation must be examined in light of its own unique circumstances. Fastnacht v. Fastnacht, 616 S.W.2d 98, 100-01 (Mo. App. W.D. 1981). A trial court has broad discretion in child custody matters, and we will affirm its decision unless we are firmly convinced that the welfare and best interests of the children require otherwise. P.L.W. v. T.R.W., 890 S.W.2d 688, 690 (Mo. App. S.D. 1994). "Moreover, because of the trial court's unique position for determining the credibility, sincerity, character, and other intangibles of the witnesses, we presume awards of custody are made in the best interest of the children." Gismegian v. Gismegian, 849 S.W.2d 201, 202 (Mo. App. E.D. 1993). The trial court is given greater deference in child custody cases than in other types of cases. Replogle v. Replogle, 903 S.W.2d 551, 554 (Mo. App W.D. 1995). Missouri courts have a long history of protecting the welfare of children. In re Laura Doyle, 16 Mo. App. 159, 166 (1884). Additionally, the legislature maintains the child welfare of Missouri children is to be determined by their best interests. Section 1.092 RSMo (1995). Our paramount consideration in a custody case is the well-

being of the children involved. W. v. M., W. & W., 490 S.W.2d 64, 67 (Mo. banc 1973). When minor children are brought under the jurisdiction of the Court for a custody determination, the inquiry is an equitable proceeding. In Interest of K.K.M., 647 S.W.2d 886, 889 (Mo. App. E.D. 1983). As unique family circumstances develop, such as the facts currently before this Court, courts across the country are applying new methodologies to address the changing concept of family life. In Washington, a step- mother was awarded custody of a minor son with a hearing disability over the natural father's request for custody in the couple's dissolution action. Allen v. Allen, 626 P.2d 16 (Wa. App. 1981). To address the non-traditional structure common in modern family life and promote child welfare, the court adopted the "actual detriment" test to fill the gap left when the "best interest" test does not adequately protect the natural parent's primary right to custody and the "parental unfitness" test does not sufficiently protect a minor child's welfare. Id. at 23. The Michigan appellate court in Atkinson v. Atkinson, 408 N.W.2d 516 (Mich. App. 1987) recognized that a non- biological father-husband is entitled to custody of a minor child born during the marriage under the equitable parent doctrine. These legal principles are not pertinent to the issue at hand. Missouri law begins with the presumption that children's welfare is best served by vesting custody in a natural parent. M.P.M. v. Williams, 611 S.W.2d 274, 277 (Mo. App. E.D. 1980). This parental presumption controls situations when custody is consistent with the child's welfare because it is assumed the natural parent/child relationship is best for the child. In Interest of C.L.M., 625 S.W.2d 613, 617 (Mo. banc 1981); In Interest of Hill, 937 S.W.2d 384, 386 (Mo. App. W.D. 1997). However, when the "parental presumption" and the "best interest test" conflict, the presumption favoring parental custody is superseded by state concerns for the child's welfare. C.L.M., 625 S.W.2d at 617. When special and extraordinary reasons mandate that custody be granted to a third party for the child's welfare, the parental presumption is rebutted. Id. Evidence presented need not establish the unfitness of the natural parent. Hill, 937 S.W.2d at 386; C.M.W. v. C.W. and H.W., 786 S.W.2d 623, 624 (Mo. App. S.D. 1990). The trial court found numerous special and extraordinary circumstances which mandated granting custody to Viva. While Bobbi Jo and Wallace resided together, Wallace did not care for his children. Following their separation, Wallace visited Bobbi Jo's residence irregularly and was usually intoxicated. Bobbi Jo did not allow Wallace to have unsupervised temporary custody with their children. Viva remained in, or near, the family residence and provided much of the care for her siblings due to their mother's physical problems. Upon Bobbi Jo's death, Wallace thought the children would be "better off" remaining with Viva. Wallace

knew or could have known the whereabouts of Viva and the children at any time. Viva voluntarily gave Wallace visitation with the children. Wallace failed to financially support his children during this period. See, Reece v. Reece, 890 S.W.2d 706, 709 (Mo. App. W.D. 1995 ). The trial court stated that "Viva and the minor children have formed a family unit, and, in the opinion of the Court, disruption of that stability and continuity by elimination of contact between Viva and the minor children will result in actual detriment to the minor children." The children continue to do well in school. The children have a stable routine which allows them to attend school, do their homework, and interact with other children. This routine also allows Viva to continue working as a teacher's assistant at ABC Day Care. Wallace currently visits with his children. During the pendency of the trial, Wallace had overnight custody of the children every weekend. When the children visit with Wallace, his daughter sleeps in one room, and his son sleeps in Wallace's bedroom, or in the front room when Wallace's girlfriend spends the night. At trial, Wallace believed that Viva is "doing a good job" with the minor children. He also stated that the children are doing well in school. However, Wallace has never attended a parent-teacher conference. Wallace claims that if he were awarded custody, the children could remain at the same school through the end of the year. Yet, he does not have a plan how to transport the children to and from school which would be compatible with his work schedule. Wallace has been in three alcohol rehabilitation programs. He successfully underwent an alcohol evaluation as per the request of the children's Guardian ad Litem; however, he currently is not involved with a support program as recommended. The parental presumption favoring custody by the natural parent succumbs when it conflicts with the best interests of the children. K.K.M. 647 S.W.2d at 890. Missouri recognizes that conduct of a natural parent which causes the children to be in a bonding familial custody with a third party mandates special and extraordinary circumstances which overcome the parental presumption. C.M.W. v. C.W., 786 S.W.2d 623, 625 (Mo. App. S.D. 1990). S.A. and D.S. are bonded with their half-sister in a familial relationship. The evidence presented established that Viva has a good and stable home for the children. Wallace was absent for the majority of the children's lives. This placement most resembles the life of the children prior to their mother's death. Viva has demonstrated her desire and ability to continue to care for the children and allow them to foster relationships with both sides of their family. Under our standard of review, we find that the trial court did not abuse its discretion in granting custody to

a third party over the request of the natural father. The best interest of the children mandates they be allowed to remain in the custody of their half-sister, Viva, under the terms as set forth by the trial court. Point denied. Wallace further contends the trial court erroneously denied his petition for a writ of habeas corpus. This Court is required to determine, sua sponte, if it has jurisdiction. Frey v. Gabel, 574 S.W.2d 38, 39 (Mo. App. Spring. Dist. 1978). In nearly every case, no appeal lies from a habeas corpus decision. In re S.S.N., 685 S.W.2d 567, 568 (Mo. App. E.D. 1984); M., W. & W., 490 S.W.2d at 67. Rather, the usual and proper remedy is by writ of certiorari. Id. However, the legislature's enactment of Section 512.025 RSMo (1994) actualized one exception under limited circumstances. Direct appeal from a writ of habeas corpus may proceed when the decision involves the custody of a minor child and no prior court order determining custody exists.(FN1) Id. Since the trial court's judgment not only denies the writ of habeas corpus but also determines custody of the minor children, we find that "no prior court order determining custody" was issued. Therefore, this point embodies the only circumstance for direct appeal and this Court retains jurisdiction. Wallace petitioned the trial court seeking return of S.A. and D.S. to him because they were illegally restrained of their liberty by Viva. The trial court properly heard evidence on this writ and the subsequent action for guardianship by Viva. Its determination that Viva remain the children's primary custodian was not in error. Hence, the trial court properly denied the writ as S.A. and D.S. were not illegally restrained from Wallace's custody. Point denied. In determining the best interest of the children involved in custody cases, the trial court is compelled to predict future circumstances based on present day indicators. However, only the passage of time truly determines the best interest of the child. This paradox is addressed by Missouri law which allows for custody modification. Yet, we are convinced that the court properly applied Missouri standards in determination of the best interests of the children. The judgment of the trial court is affirmed. Footnotes: FN1. While Section 512.025 RSMo (1994) uses the terminology "court order" we recognize that in light of Linzenni v. Hoffman, 937 S.W.2d 723, 726 (Mo. banc 1997), the proper terminology would be "court judgment." Separate Opinion: None

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.