Armstrong v. Armstrong
| Decision Date | 15 February 1945 |
| Docket Number | 6503 |
| Parties | ARMSTRONG v. ARMSTRONG |
| Court | Missouri Court of Appeals |
R. F Baynes, of New Madrid, for appellant.
VANDEVENTER
This is an appeal from an order of the circuit court of New Madrid County modifying a previous divorce decree, relative to the control and custody of a minor female child, Betty Sue Armstrong, age six, by giving it to respondent, her mother. In the original decree, the control and custody of Betty Sue and her two brothers, Leslie Morgan and Billy Jean had been awarded to appellant, their father, who, dissatisfied with the order of modification as to Betty Sue, appealed therefrom. Appellant has filed a brief and vigorously asserts that there was not sufficient evidence of changed circumstances since the original decree to justify the court's action. Respondent has furnished no brief.
The hearing was had on the motion to modify, September 22, 1943 and the court took it under advisement until the 27th of September, 1943, when it modified the original decree leaving with appellant the custody and control of Leslie Morgan Armstrong, age eight, and giving respondent the custody and control of Betty Sue Armstrong, age six. Nothing was said in the order as to the care and custody of Billy Jean Armstrong, age four, apparently for the reason that he had never been within the jurisdiction of the court since long before the divorce decree was granted.
The Abstract of the Record shows that the decree of divorce was rendered on the 14th day of September, 1942, and that service was had upon respondent by publication. The uncontradicted evidence shows that she knew nothing whatever about the pendency or determination of the suit until she came home to see her children about the 5th day of December, 1942, although appellant had corresponded with her after the decree was rendered and had written her as late as December 4, 1943, stating that he was coming to her. At no time had he mentioned that a divorce had been granted or applied for. The evidence further shows that respondent had been in ill health since the birth of Billy Jean Armstrong, age four at the time of the hearing on the motion to modify; that respondent left home in August, 1939, and stayed with her sisters, her brother and her mother at various places, but that until early in 1943, her health was such that she was unable to be steadily employed and could not support and care for her infant children. Early in 1943, her health having improved, she obtained a position with The United Rubber Company at South Bend, Indiana, where her wages had been as high as $ 80 per week, varying between that sum and $ 40 as a weekly minimum, and this amount after such deductions as were made from the salary of employees. She had held this position until a short time before the hearing, when she had obtained 'separation papers to transfer to St. Louis' from the company, permitting her to change positions and it was her intention to move to St. Louis and work for the same company, it having another factory in that city. She testified that she could be with her children every night and that her sister, Georgia Brown Hobbs, 33 years of age and single, had agreed to move to St. Louis, live with her and take care of her children while she was at work. Respondent attempted to visit her children in May, 1943, but the flood waters prevented and she only visited with them at the school house for a few minutes and then only in the presence of appellant's mother, with whom respondent's relations did not seem to be very cordial.
The evidence also showed that since the decree of divorce and for sometime prior thereto, Leslie Morgan Armstrong and Betty Sue Armstrong had been living at the home of the parents of appellant; that appellant had remarried in the summer of 1943, but had separated from his wife and had for sometime, prior to the hearing on the motion to modify, been living at Wardell and Campbell, where he was employed hauling gravel. His mother, who was a witness for him, was not sure that he had been home one night within the month preceding the hearing.
The evidence in the case further shows that appellant had never furnished his children any home other than with their grandparents, his father and mother, and it was apparently his intention if he retained custody and control of them, that he intended to leave them with his parents. The evidence tended to show that since the decree of divorce, he had no permanent place of employment. His mother testified: One witness testified that he knew appellant's reputation for morality and that it was bad. There was evidence that the paternal grandfather and grandmother of the children were people of good reputation, that their home was a fit place for the children to live and that they had been attending school regularly, although for Betty Sue, this was the first term.
There was evidence introduced relative to a trip appellant made to South Bend, Indiana, to see his wife in 1941, where they had stayed together at a hotel. This episode was inquired about by both appellant and respondent, was prior to the decree of divorce and, so far as we can see, had no bearing upon the issue of changed circumstances, since the entry of the decree in the original divorce proceeding. The court endeavored to limit the testimony to circumstances arising since the original decree but both parties inquired about the Indiana trip, so neither is in a position to complain.
There are a few well defined principles of law applicable to cases of this character, which it might be well to review briefly.
The welfare of the child is the star by which the court is guided. To this all other considerations are subordinate. Howard v. Howard, Mo.App., 171 S.W.2d 92; Sanders v. Sanders, 223 Mo.App. 834, 14 S.W.2d 458.
A parent's claim, other things being equal, to custody and control of his children is paramount to that of the...
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