Abel v. Ingram

• Decision Date: 17 February 1930
• Citation: 24 S.W.2d 1048,223 Mo.App. 1087
• Parties: GLADYS INGRAM ABEL, APPELLANT, v. KENNETH INGRAM, RESPONDENT. [*]
• Court: Missouri Court of Appeals

24 S.W.2d 1048

223 Mo.App. 1087

GLADYS INGRAM ABEL, APPELLANT, v. KENNETH INGRAM, RESPONDENT. ^[*]

Court of Appeals of Missouri, Springfield

February 17, 1930

Appeal from Cedar County Circuit Court.--Hon. C. A. Hendricks Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed and remanded.

Cope & Hadsell and Hallett & Hallett for appellant.

(1) When new facts are pleaded and proven showing a changed condition of the parties since the decree of divorce awarding the custody of a child, the court has jurisdiction to modify the decree to the extent of making another and different award of the custody of the child. Section 1812, R S. 1919; Sabourin v. Sabourin, 213 S.W. 492; Sanders v. Sanders, 14 S.W.2d 458. (2) In determining the custody of a child, the supreme and paramount consideration is the welfare of the child. Section 1814, R. S. 1919; Weir v. Marley, 99 Mo. 484; State ex rel. Crockett v. James Ellison et al., Judges of the Kansas City Court of Appeals, 271 Mo. 416; Kaplun v. Kaplun, 227 S.W. 894; Sanders v. Sanders, 14 S.W.2d 458. (3) The presumption is that the interest of a child of divorced parents will be best served by placing it in the custody of one or the other of the parents. Weir v. Marley, 99 Mo. 494; State ex rel. Crockett v. James Ellison et al., Judges of the Kansas City Court of Appeals, 271 Mo. 427; Ellis v. Johnson, 260 S.W. 1011. (4) In all proceedings between parents involving the right to the custody of their minor child, the rights of the parents are equal, and neither, as such, has any right paramount to the other parent, but in each case the court should decide only as the best interest of the child may seem to require, and its custody should not be awarded for the mere purpose of gratifying the feelings and wishes of one parent against the other. Section 1814, R. S. 1919; Barnhart v. Barnhart, 253 S.W. 56; Ellis v. Johnson, 260 S.W. 1011; Hill v. Hill, 277 S.W. 961. (5) When the husband, who was awarded the custody of the child by the decree of divorce, abandoned the child to the care of his parents, the mother, in law and morals, became entitled to the custody of the child on the showing that she was able to care for it. Section 1814, R. S. 1919; Weir v. Marley, 99 Mo. 494; Barnhart v. Barnhart, 253 S.W. 56, 58; Ellis v. Johnson, 260 S.W. 1012. (6) A child of tender years, and particularly a daughter, should not be deprived of the society, love and protection of a mother, except under the most urgent necessity involving the welfare of the child. Barnhart v. Barnhart, 253 S.W. 58; Ellis v. Johnson, 260 S.W. 1012; Sanders v. Sanders, 14 S.W.2d 458.

O. O. Brown for respondent.

(1) In each case the court shall decide only as the best interest of the child itself may seem to require. Section 1814, R. S. 1919; Kaplun v. Kaplun, 227 S.W. 894, par. 1; Meredith v. Krauthoff, 191 Mo App. 149, par. 4. (2) Conclusions of trial court as to custody of child not lightly disturbed. Kaplun v. Kaplun, 227 S.W., par. 3; Barnhart v. Barnhart, 253 S.W. 56, par. 1. (3) Where the evidence leaves any material fact in doubt, the appellate court should abide by the finding of the trial court in relation thereto. Sanders v. Sanders, 14 S.W.2d 458, par. 9. (4) If the evidence is conflicting and evenly balanced, the appellate court will defer to the judgment of the trial judge, as he had the witnesses before him, observed their demeanor, and thereby was in a better position to judge of their credibility and the weight to be given their testimony than we who read only a printed record of the proceedings. Barnhart v. Barnhart 253 S.W. 57-58.

COX, P. J. Bailey and Smith, JJ., concur.

OPINION

COX, P. J.

Paintiff and defendant are the parents of a minor female child, one Anna Wayne Ingram, five years of age. A divorce had been granted the father and the custody of this child awarded to him. The plaintiff filed a motion asking the court to change the order as to the custody of the child and award the custody to her. After hearing the evidence the court refused to change the order and plaintiff appealed.

Plaintiff and defendant were married December 23, 1923. The child whose custody is in controversy here was born October 4, 1924. The parents had separated before the child was born. They were divorced by judgment of the circuit court of Cedar county at the March term, 1925. The suit for divorce was filed by plaintiff against defendant and he filed an answer and cross-bill. Plaintiff states that she was misled as to the time the case was to be tried and for that reason was not present at the trial. That, however, is not now material. Defendant secured a divorce on his cross-bill and was awarded the custody of the child. The child was, at that time, in the care and custody of defendant's parents, James Ingram and wife and is still there. Plaintiff filed this motion asking for the custody of the child on October 20, 1927. It was finally heard on January 29, 1929, and the motion denied.

At the trial, the parties were allowed to testify as to their conduct toward each other and the child from the time of their marriage to the date of the trial but as we understand the rule, the order of the court made at the time the divorce was granted must stand unless the facts have so changed since that time as to make it appear to now be to the best interest of the child to change it and we shall confine our consideration of the facts to what has occurred since the divorce decree was entered and the custody of the child awarded to the defendant.

Before passing to a review of the facts, however, we call attention to the fact that the trial court apparently proceeded upon the theory that the father was the natural guardian of this minor child and entitled to first consideration in passing upon the question of its custody. This undoubtedly is the rule as between the father and an outside party or some relative other than the mother. [State ex rel. v. Ellison et al., 271 Mo. 416, 427, 196 S.W. 1140.]

The father is primarily liable for necessities for his offspring and by reason of that fact, there has been a disposition on the part of the courts generally to give the father first consideration in passing upon the question of custody of a child. That was once the rule in controversies between the father and mother. In an early case in this State where the contest was between the parents, to-wit, Lusk v. Lusk, 28 Mo. 91, decided in 1859, it is said on page 93: "As a general proposition, the father is the guardian of his children and entitled against all the world to their custody during their minority." It was held in the same case, however, that there is no absolute rule on the question but "the leading principle is to consult the good of the child rather than the gratification of the parents." In 1913 our Legislature enacted what is now sections 1813 and 1814, Revised Statutes 1919, which specifically provide that parents stand upon an equality as to the right to custody of the minor children. Since the enactment of that statute there can be no presumption indulged in favor of the father against the mother. That presumption only obtains in a controversy between a parent and some other person not so related to the child. It does prevail and is still the rule as between either parent and grandparents or other relatives. [See State ex rel. v. Ellison, above cited.]

Passing now to a consideration of what has occurred since the divorce was granted and the custody of this child awarded to defendant, we find that at that time neither parent was in a position to properly care for this child themselves. The child had been taken by the father to the home of his parents and was being cared for by them. After the order awarding the custody of the child to the father, it was left with his parents and is still there. The father remarried in 1926 and has one child by that marriage. At the time of this trial he with his present wife and child, were living in Kansas City. Kansas. He had not removed this child there but it was left by him with its grandparents and he testified that it was his intention to leave it there if she wanted to stay there. He is financially able to feed, clothe and educate the child. The plaintiff at the time of the divorce was living in Kansas City and had employment but was not able at that time to keep and care for the child. She was married to her present husband Albert W. Abel, July 14, 1927. He is a successful business man in Kansas City, Missouri. He and plaintiff are living in a good home in a good residential district and they are now well able to rear and educate...