Badger v. Badger

• Decision Date: 14 June 1920
• Docket Number: No. 13577.,13577.
• Citation: 204 Mo. App. 252,224 S.W. 41
• Parties: BADGER v. BADGER.
• Court: Missouri Court of Appeals

224 S.W. 41

204 Mo. App. 252

BADGER v. BADGER.

No. 13577.

Kansas City Court of Appeals, Missouri.

June 14, 1920.

Appeal from Circuit Court, Bates County; C. A. Calvird, Judge.

Bill in equity by Mary G. Badger against Herbert E. Badger for the care and custody of their minor children. Judgment for the plaintiff, and the defendant appeals. Affirmed.

W. O. Jackson, of Butler, H. N. Haynes,. of Greeley, Colo., and John H. Lucas, of Kansas City, for appellant.

Chas. E. Southard, of Greeley, Colo., Watson, Gage & Ess, of Kansas City, and Thomas W. Silvers, of Butler, for respondent.

ELLISON, P. J.

On the. 26th of March, 1919, plaintiff filed a bill in equity in the circuit court of Bates county against her husband, whereby she seeks a decree "for the care, custody, control, and management" of their three minor children, and for maintenance and support for herself. She prevailed at the trial, and defendant appealed as to the custody of the children. Support for herself seems not to have been pressed.

It appears that the parties were married in Greeley, Colo., on the 8th day of July, 1904, and that their parents lived there; that they have three children, two girls and one boy, the girls, Mary and Alice, 12 and 10 years old, respectively, and the boy, Robert, 8 years old. Robert became afflicted with what is called "diabetes insipidus." He suffered much, and was a constant and exact, ing care to his mother. She dispaired of his life, and from the mental and physical strain to which she was put in watching over him, together with her tither household duties, her strength weakened and her health broke. Physicians pronounced her affliction to be neurasthenia, commonly referred to as nervous prostration. His business was that of a civil engineer, and in the summer of 1915 he obtained employment at Storm Lake, Iowa. Plaintiff and the children followed. Her nervous condition not improving, still despondent over the deplorable condition of the little boy, they took him to Chicago to be placed in charge of specialists, but found no relief. Plaintiff herself `was taken to a place in Des Moines, Iowa, to a "Retreat" for "rest cure." Before this one Ethel Colyer, who figures prominently in the case, had been employed by defendant to care for the children, and she was left in charge of them while plaintiff was absent. During plain, tiff's absence defendant's mother came on a visit from Greeley, and Mrs. Colyer left in a day or two. Some time afterwards his mother took Robert back to Greeley, where he stayed with her. She was then a widow.

It appears from testimony in behalf of defendant, and it is doubtless true, that during the time he was at home with her she gave evidence of acute nervous derangement and became abnormal in her concern for the afflicted boy. There was evidence tending to show that she threatened the life of herself and boy. There is much evidence tending to show this, and that her condition was such, at times, to justify one in thinking it inadvisable to leave her alone with the children, though it should be stated that defendant did frequently absent himself for several days at a time. At any rate, plaintiff needed rest from the care of the children, and they were taken to defendant's mother in Greeley, and she went to her father, Mr. Graham, and mother, he being a man of independent living and consequence, residing en a large farm not far away. Here it is clear, all the evidence considered, she was practically abandoned by defendant, and the trial court was justified in finding that he never intended to live with her, and had conceived the idea of robbing her of her children and putting them under the tutelage of Mrs. Colyer as "housekeeper." Mr. Graham received his daughter in his home in December, 1917, and employed a nurse for her, who attended her with such solicitude, seeing that she took gradually increasing exercise in the open air, that she found herself practically well again, and we think the trial court justified in finding that her health was restored.

Defendant himself testified that she was of unsound mental condition, and that he "turned her over to her parents in December, 1917, with the understanding they would care for her" and that, excepting $35, he never contributed thereto. After her recovery she was anxious to bring the family together, and prevailed upon him to come to see her at her father's in May, 1918, and endeavored to have him provide a home, that she might take a mother's place with her children. He refused and told her he did not care for her, stating, too, that he did not think she was fully restored. He saw her again in July, 1918, when she besought him to consent that she might live with him and the children, but he refused. On her inquiry, he told her he intended to secure Mrs. Colyer to keep house and take care of the children.

It is evident that during all of this time he was contemplating installing Mrs. Colyer in his house to take care of the children, and that he was endeavoring to learn whether he could get a divorce. He asked plaintiff's father if he had heard her speak of a divorce, and offered to defray the expenses if she would procure one. He likewise advised with an old-time friend, a lawyer, who discouraged him by telling him he had no cause.

While plaintiff was at her father's and the children were at his mother's in Colorado he determined on living in Rich Hill, Mo., and engaged Mrs. Colyer to go there and take charge of a house he had rented, and while on one of his trips of Colorado, when he refused to live with plaintiff, she asked him if he intended to, take the children to Rich Hill and put them in the keeping of Mrs. Colyer. His answer, though equivocal, showed that he had such intention, and plaintiff thereupon brought an action in Colorado for maintenance, support, and custody of the children. Though served with notice, he got the children out of the state, took them to Rich Hill, and installed them in the house, with Mrs. Colyer in charge as housekeeper. The trial court found that Mrs. Colyer was not morally fit to have the care and superintendence of the children. It was shown by undisputed evidence, and is conceded, that in 1913 she stopped at the house of a Mrs. Gage with a man named Krumvide and stayed all night, occupying the same room and representing herself to be his wife. Defendant attempts to palliate this by saying that she was engaged to be married to Krumvide, and calls it "an indiscretion." But the fact is he was a married man, and that his wife obtained a divorce from him for adultery with this woman, and that the supposed "engagement" has not been carried out since the divorce.

It was further shown in the testimony of defendant himself that on a trip either going to or returning from Storm Lake, Iowa, he and Mrs. Colyer stayed all night at a hotel in Kansas City, occupying adjoining rooms connected by a bathroom in common. And it also appeared on testimony elicited from defendant, that his house at Rich Hill was so constructed that a person could go from his room to hers without passing through any other room. Mrs. Colyer was not called by defendant as a witness; and while defendant was testifying on cross-examination he was asked whether he made "any examination of her history up there [at Storm Lake]?" His response was that, "I decline to answer," and the same response was made to the question whether he knew Krumvide.

We find the case of Wellesley v. Wellesley, 2 Bligh (N. S.) 124, bears strong resemblance, in principle, to the one before us. There the mother on her deathbed committed her three children (a daughter and two sons) to her two maiden sisters, requesting that they not let the father get possession of them. Afterwards the father presented his petition, claiming the custody of the children, and that they be taken from their aunts. His claim was denied on the ground that he was unfit. In regard to his conduct towards his sons while at school it was shown that in one of his letters he advised them (italics not ours) to "study hard but as soon as you have completed your tasks, go out, in all weathers, and play hell and Tommy, chase cats, dogs and women, old and young, but spare my game." In another letter, written to the tutor of the boys, complaining of the interference of the mother, he said:

"There are certain things which ought to be let alone; a man and his children ought to be allowed to go to the devil their own way, if he pleases."

Wellesley had taken up illicit connection with a Mrs. Bligh, and was coarse enough not to care that his wife knew it. The court said that to give the father the care and custody "of this little girl and her brothers...