Baker v. Baker
| Decision Date | 01 December 1958 |
| Docket Number | No. 22802,22802 |
| Citation | 319 S.W.2d 11 |
| Parties | Polly W. BAKER, Appellant, v. Jack D. BAKER, Respondent. |
| Court | Missouri Court of Appeals |
Brown, Douglas & Brown, R. A. Brown, St. Joseph, for appellant.
Basil L. Kaufmann, Smith, Sherwood, Utz & Litvak, St. Joseph, for respondent.
This is an appeal by Polly Baker, appellant, from a final judgment refusing modification of that portion of a previous divorce decree granting her former husband, Jack Baker, respondent, visitation privileges with his two children, Betsy Baker and Susan Baker, either all day Saturday or for two afternoons a week and upon her becoming four years of age the right to have Susan Baker ten days for a vacation. In the divorce decree Mrs. Baker was given the general custody of the children. As stated by appellant's counsel, 'This motion (for modification) is aimed primarily at denying the right to take the child Betsy on a 10-day or two-week vacation, and for such other relief as the court thinks proper because of the evidence.'
Mr. and Mrs. Baker separated in November, 1955, and were divorced on June 29, 1956. Prior to their divorce they had two children, Betsy, four years old at the time of the hearing in December, 1957, and Susan, then two years old.
Mrs. Baker's motion for modification alleged 'that there had been a change in conditions, that the defendant is not properly looking after the child, Betsy Jane Baker; that said minor child, Betsy Jane Baker, has been injured while in the custody of the defendant.' On the day of trial the motion was amended to include charges that while with her father Betsy had incurred injuries in that 'she has had a tooth damaged, she has complained on coming home that her 'bottom hurt' her; she has been examined on coming home, and marks, and in one instance, a laceration was found on her vagina'; that she had been subject to terrific emotional stress; that the father told her she hated her mother; that she and Susan were improperly fed; were not given proper opportunity to nap; were taken for visits when they were ill, and that Mr. Baker improperly exhibited himself to Betsy Jane. All these charges were denied by Mr. Baker in his answer.
At the trial it was disclosed that Mrs. Baker and Mr. Baker had been separated for several months prior to the divorce and that Mrs. Baker at that time had commenced a daily diary of events which she believed were injurious to her or to the welfare of the children. She continued this diary after the divorce, and relied greatly on it at the trial of the present motion. She also presented the testimony of her father and mother, Dr. and Mrs. James E. Weedin, and that of five other witnesses. Defendant presented his own testimony and that of ten other witnesses. The resultant transcript is approximately 400 pages. We have examined it carefully. It is our wish to spare the reader the burden of its details except as necessary to understand the questions presented and decided on this appeal.
The testimony on behalf of Mrs. Baker was to the following effect. Mr. Baker, in accordance with his rights under the mentioned divorce decree, some 134 times on his appointed days, took either one or both of the children. The condition of the children when they returned was such that Mrs. Baker felt they were being damaged. On numerous times after Betsy had returned from a visit with her father she was nervous, sick, nauseated and upset, and would cry out in her sleep. She was difficult for Mrs. Baker to handle. Susan, the younger, also after coming home from such visits would be sick, upset, nauseated and hysterical. Susan was allergic to certain foods, and Mr. Baker was given lists as to what she could and could not eat. Yet, usually the day after a visit with her father, she would have an allergic outbreak. On several occasions Mr. Baker did not see to it that the children took their customary naps.
Mrs. Baker testified Mr. Baker became angry on one occasion and began to swear in front of Betsy, and that in carrying Betsy he would carry her straddle across his middle with his hands under her dress.
Mrs. Baker also testified to eight occasions when Betsy had come home with a 'sore bottom' after a visit with Mr. Baker. Mrs. Baker would examine the child's vagina (bottom) and upon occasion found it slightly red and put some ointment on it. On several of these occasions the child appeared to experience pain on urination. On one occasion there was a scratch on it, on another occasion a slight laceration and on still another occasion there was a bruise between the legs. Mrs. Baker called the doctor on five of these occasions. Dr. H. E. Peterson, who had cared for these children since their birth, testified that as to Betsy, he examined her on March 13, 1956, for a sore bottom, again on May 15, 1956, for some redness on it; on April 28, 1957, for 'a small laceration' on it; on July 14, 1957, for 'a small red spot just inside the vulva.' He testified that from time to time little girls have a swelling, scratch or laceration of the vulva, and soreness or bruising; that excessive tightness of clothing; failure of the child to wipe properly and become galled of that riding a bicycle can cause these things and that 'usually you can trace it down to something of that sort.' He stated that Betsy was normally not a temperamental child and particularly not in the last few months, though at first, and for some time, he had found her 'a little hard to get along with--a little jittery and nervous.' That, generally speaking, Betsy was in very good health. She had experienced the usual childhood diseases such as croup, red throat, pin-worms, and on one occasion, pneumonia. According to Dr. Peterson, Susan has been fine all along.
Dr. H. Ewing Wachter, associated with Dr. Peterson, also treated the children since birth for such things as ear infection, pinworms, respiratory infection, and has given them Salk inoculations. He treated Betsy on one occasion for her 'sore bottom'. He stated 'it is not uncommon' to see a little girl with a scratch or laceration on her vagina; that the frequency of the occurrence with Betsy was more than that usually seen. He testified both children are healthy, normal children.
Testimony on behalf of Mr. Baker was to the following effect. Susan, the younger child, did not know him the first few times he took her and she would cry for a short time. She quickly got over that, and now is completely happy to be with him. He adores his children. He has never done anything that would have injured them. Because he has them so seldom he stays with them practically every minute of the time he has them in his custody. He does not know how Betsy got the scratch or redness on her 'bottom'. He often takes his children to a farm he owns, and frequently picks up a load of other children for them to play with as he feels they need the companionship of other children their age. The children would play hard and sometimes swim. They would be tired from play but never in a frenzy.
Mr. Baker does not talk to his former wife. She does not tell him about the children. She never complained to him about mistreating them, and he has never mistreated them. He turned over the allergy food lists to his mother, Mrs. Cecil Baker, because when he had the children, they had most of their meals there. The children were not fed prohibited foods, or anything that would make them sick. Mrs. Cecil Baker testified to the same effect, and told of the care she and her son took to see to it that the little girls were fed properly. Other of the ten witnesses who appeared on Mr. Baker's behalf testified to his great love and affection for his children and the tender and careful care that he gave them. They testified that the children likewise displayed love and affection for their father. They adored him, and were very happy when with him. Some testified how Mr. Baker took them to a playground in Crestview Village, where he, his children, and other adults and their children watched the children play on swings, in the sand box, etc., and that they were very contented and happy. Frequently the children played in the yard of Mr. Baker's parents. He would show them flowers. They would run down the drive to him and he would catch them. They would throw their arms around his neck and show great affection for him. He would take them for a ride in a little wagon up and down the driveway, they would swing and play on a merry-go-round in a neighbor's yard. They were always watched carefully and looked after. Some testified that the children were reluctant to leave their father's care and return to their mother at the end of a visit. They were not exhausted or worn out. They were not nervous and upset.
Mr. Baker denied he ever swore in the presence of the children, and his witnesses had never heard him use any unfit language in their presence.
At the close of all the evidence the trial court overruled and denied Mrs. Baker's motion for modification of custody.
On this appeal it is our duty to consider, weigh and evaluate all of the competent evidence tending to prove or to refute the essential factual issues and to reach our own findings. In so doing we are not bound by the trial court's findings but do accord them proper deference, particularly where the credibility of witnesses who appeared before the trial court is challenged. We do not hesitate to correct any errors the trial court may have made, and to enter such judgment as justice and the welfare of these children require.
Both sides agree that on a trial such as this the supreme and paramount consideration is the welfare of the children. As stated in Ramos v. Ramos, Mo.App., 232 S.W.2d 188, 198: ...
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