Benjamin v. Benjamin
| Decision Date | 17 September 1963 |
| Docket Number | No. 31442,31442 |
| Citation | 370 S.W.2d 639 |
| Parties | Donald Berten BENJAMIN, (Plaintiff) Respondent, v. Betty Jean BENJAMIN, (Defendant) Appellant. |
| Court | Missouri Court of Appeals |
Joseph J. Dolgin, O'Connor, Dolgin & Godfrey, and John P. Ossenfort, Clayton, for appellant.
Walter M. Clark, Bruce E. Woodruff, Richard J. Sheehan, Armstrong, Teasdale, Roos, Kramer & Vaughan, St. Louis, for respondent.
L. F. COTTEY, Special Commissioner.
Appellant-wife and respondent-husband have been twice married and twice divorced. The decree entered on the latter occasion, September 24, 1958, awarded to appellant the custody of the couple's two children, Deborah and Michael, aged five and three, respectively. The parties themselves were in their middle twenties at the time. Three years after the divorce respondent filed a motion to modify the decree to the end that the custody of the children might be awarded to him. In the meantime each of the parties had married again, each had begun the rearing of a new family, and each was maintaining an adequate home. Respondent's motion particularized three basic complaints against appellant: 1st, her general indifference to the physical and moral well-being of the children; 2nd, her refusal to accord respondent the unhindered enjoyment of his rights of visitation with the children; and 3rd, her continuing neglect of an orthopedic defect with which young Michael had been afflicted since birth. Appellant's answer was a general denial of the charges. The trial below resulted in an order sustaining the motion and awarding the custody of the children to respondent. This appeal followed.
Appellant makes five assignments of error, although not in the order in which we shall discuss them.
Point 1: That there was no sufficient showing of a change of circumstances occurring since the entry of the original decree to warrant any modification of its custody provisions, and no sufficient showing that the children's welfare would be prompted by transferring their custody to respondent. We readily agree with appellant that respondent has the burden of proving both of those issues. Simmons v. Trenter, Mo.App., 327 S.W.2d 936, 939; Samland v. Samland, Mo.App., 277 S.W.2d 880, 881; Montgomery v. Montgomery, Mo.App., 257 S.W.2d 189, 196. And, after examining the record, we conclude that he has done so. The litigation was carried on for the space of approximately a year with evidence being received on three separate occasions during that period. The record of it runs to some 200 pages. It is principally related to ther period of time between the date of appellant's divorce and her marriage to her present husband insofar as her alleged indifference to the children's moral environment and general welfare is concerned, but it goes beyond the latter date insofar is her alleged obstruction of respondent's visitation rights is concerned and to the extent that it bears on the charge that she has imperiled Michael's health by her persistent neglect of his orthopedic problem. The testimony follows the familiar pattern of accusation and denial, crimination and recrimination, all in irreconcilable conflict. We think no useful purpose can be served by recounting it here to the further embarrassment of the parties and their families. Suffice it to say that the issue can only be resolved by attributing the virtue of veracity to one set of witnesses and denying it to the other. If respondent's evidence is to be believed, then he has substantially supported the principal grounds of his motion and has established both a material change of circumstances and the likelihood that the award of the children's custody to him will be in their best interests. We are unable to say that the trial court abused its discretion in reaching that conclusion. The applicable rule for our guidance in this situation is stated in Birrittieri v. Swanston, Mo.App., 311 S.W.2d 364, 367, in this language: To the same effect, see: Long v. Long, Mo.App., 280 S.W.2d 690, 694, and Shapiro v. Shapiro, Mo.App., 238 S.W.2d 886, 889, et seq. We must, therefore, rule this point against appellant.
Point 2: That the court erred in denying appellant the opportunity to qualify her daughter, Deborah, as a witness to testify on her behalf. That problem arose and was disposed of in this manner: On the last day of the trial Deborah was present in court. She was then eight years and ten months old. Appellant called her as a witness and offered to qualify her by showing, presumably, that she was 'capable of receiving just impression of the facts' and 'of relating them truly,' thereby avoiding the interdiction of Sec. 491.060. The court refused to permit it, declaring it to be 'a matter within this court's discretion.' He added, however, 'I will permit either of these young children, either Deborah or Michael, if it is desired, to talk alone in chambers with me.' Counsel for respondent approved that proposal. Counsel for appellant inquired whether a reporter would be present so that the examination in chambers would be preserved in the record and, upon being informed that none would be, asked and was granted leave to consult with his client. A recess was thereupon declared. The record is silent as to the details of what happened during the recess, but upon resumption of the trial the court announced that during the recess he had talked privately to Deborah in chambers. He did not divulge what was said in the course of that private examination. His ruling as to the witness's incompetency, however, remained unchanged.
Sec. 491.060 does not render a child under ten years of age absolutely incompetent as a witness, but only inferentially so. The adverse inference arising from his youth may be dispelled by a showing that he has "(1) Present understanding of or intelligence to understand, on instruction, an obligation to speak the truth; (2) mental capacity at the time of the occurrence in question truly to observe and to register such occurrence; (3) memory sufficient to retain an independent recollection of the observations made; and (4) capacity truly to translate into words the memory of such observations." Baker v. Baker, Mo.App., 319 S.W.2d 11, 16. Thus it is the duty of the trial court to determine whether a...
To continue reading
Request your trial
-
Zweifel v. Zenge and Smith
...a condition to appellate review of the exclusion of evidence is applied both where a witness is disqualified, as in Benjamin v. Benjamin, 370 S.W.2d 639, 643 (Mo.App.1963); Spencer v. Smith, 128 S.W.2d 315, 318 (Mo.App.1939); Dempsey v. McGinnis, 249 S.W. 662, 665 (Mo.App.1923); Fowler v. S......
-
People v. McCoy
...evidence or evidence of some probative value. William H. Van Vleck, Inc. v. Klein, 50 Misc.2d 622, 271 N.Y.S.2d 64. In Benjamin v. Benjamin, Mo.App., 370 S.W.2d 639, the court indicated that if a social worker report, admittedly hearsay, had been the only basis of a child custody award, the......
-
Lipsey v. Lipsey
...that incamera 'visit' with the children should not have been conducted. Roper v. Roper, Mo.App., 461 S.W.2d 330; Benjamin v. Benjamin, Mo.App., 370 S.W.2d 639, 642--643. However, on the record brought to us it would not have constituted reversible error because (a) although foreadvised of t......
-
State v. Tandy, 51477
...a child under ten is competent before permitting the child to testify. State v. Groves, Mo., 295 S.W.2d 169, 172(3); Benjamin v. Benjamin, Mo.App., 370 S.W.2d 639, 642(7); State v. Cox, Mo., 352 S.W.2d 665, 672(18); 58 Am.Jur., Witnesses § 134, p. 101. See also Beil v. Gaertner, 355 Mo. 617......