122 S.W. 1117 (Mo.App. 1909), Knepper v. Knepper

Citation:122 S.W. 1117, 139 Mo.App. 493
Opinion Judge:JOHNSON, J.
Attorney:J. F. Graham and Jones & Conkling for appellant. Lozier, Morris & Atwood for respondent.
Case Date:November 15, 1909
Court:Court of Appeals of Missouri

Page 1117

122 S.W. 1117 (Mo.App. 1909)

139 Mo.App. 493




Court of Appeals of Missouri, Kansas City

November 15, 1909

Appeal from Carroll Circuit Court.--Hon. John P. Butler, Judge.


Judgment reversed.

J. F. Graham and Jones & Conkling for appellant.

(1) The evidence is insufficient to support the judgment on the petition for review, it not being shown that appellant was an unfit or improper person to have the care and custody of said minor child. Jennings v. Jennings, 85 Mo.App. 290; Brown v. Brown, 53 Mo.App. 453; Clarkson v. Clarkson, 22 Mo.App. 253; Messenger v. Messenger, 56 Mo. 337; Million v. Million, 106 Mo.App. 683; Cole v. Cole, 89 Mo.App. 228; Salisbury v. Salisbury, 92 Mo. 683; Childs v. Childs, 11 Mo.App. 395; Nave v. Nave, 28 Mo.App. 505; Hyatt v. Wolfe, 22 Mo.App. 191; Campbell v. Garton, 29 Mo. 343; Tennison v. Tennison, 49 Mo. 110; State ex rel. v. Scott, 104 Mo. 26. (2) It was improper to tax the cost incident to the petition for review to appellant. The petition for review alleged matters which were heard and adjudicated in the divorce proceeding. Deidesheimer v. Deidesheimer, 74 Mo.App. 234; Cole v. Cole, 89 Mo.App. 228.

Lozier, Morris & Atwood for respondent.

Appellant's first point is that the evidence is insufficient to support the judgment modifying the former decree as to the custody of the said minor child. In reply to this, we say that if it is possible to produce evidence justifying the modification of a decree of this character, such evidence has been produced in this case. The conduct of appellant has been so outrageous and abhorrent as to shock all sense of decency and respectability. To permit the child Allie, since she has arrived at the age when she does no longer need the physical nurture of her mother, to remain in such a morally corrupt association, would be a crime against enlightened society, and would amount to the moral assassination of an innocent and helpless ward of the court. The testimony overwhelmingly shows that the conduct of the mother has been so morally corrupt that the people of her vicinity have ostracized her and her family from society. The admissions she makes as to registering and occupying rooms with Huckleberry at two different hotels prior to her marriage with him, shows by all well-recognized principles of evidence that she is an adulteress. She admits that she and Huckleberry occupied together a room with but one bed in it, all night. It is true she swears that nothing improper transpired but that is simply adding the crime of perjury to the crime of adultery. If such evidence as this record discloses is not sufficient to support the judgment of the trial court in taking a child from such morally vicious surroundings and environment, what in the name of decency could a mother do to forfeit her right to the custody of her off-spring when they are passing through the impressionable period of young maidenhood.


[139 Mo.App. 495] JOHNSON, J.

The issue before us is raised by the divorced parents of Allie Knepper, a female minor, now eleven years old. The appeal is prosecuted by the mother from a judgment modifying the decree of divorce in which the custody of the child was awarded the mother. After their marriage, the parties lived together as husband and wife until February 15, 1907, when they separated and plaintiff with their two minor children, a boy and a girl, established her home at Bosworth. Before the separation, the parties lived on a farm south of Bosworth. They sold the farm to J. C. Huckleberry and also disposed of their...

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