Cherry v. Cherry
| Decision Date | 15 November 1954 |
| Docket Number | No. 7334,7334 |
| Citation | 272 S.W.2d 700 |
| Parties | Leta Pauline CHERRY, Respondent, v. Stephen CHERRY, Appellant. |
| Court | Missouri Court of Appeals |
Joseph B. Geisler, Mountain View, for appellant.
G. W. Rogers, Gainesville, A. W. Landis, West Plains, for respondent.
This appeal is from a judgment of the Circuit Court of Howell County, Missouri, denying relief to defendant on his motion to modify a divorce decree with respect to custody of defendant's two minor children, Robert Stephen Cherry, age 7, and Ray Noble Cherry, age 5.
The motion to modify was filed February 18, 1953. The changed conditions relied upon for modification were that plaintiff's brother threatened defendant and prevented him from seeing the children while in the custody of plaintiff and that on the ___ day of February, 1953, when defendant went to the home of plaintiff's father, where plaintiff and the children resided, to visit with the children, plaintiff's father came out of the house with a gun and forbade defendant to come upon the premises to see the children and refused to permit the children to visit with defendant.
The motion states that defendant believes that in the future he will be prevented from seeing his children because of the conduct of plaintiff's brother and father.
The motion asked the court to modify the divorce decree by changing custody so as to permit the children to be with defendant from Friday afternoon until Sunday night each two weeks and for such other orders as to the court may seem proper.
Plaintiff's answer pleads that she is without information sufficient to form a belief as to the conduct of her brother and father alleged in the motion. It admits the custody of the children was awarded to plaintiff and defendant as set out in the motion but denies that the court decreed a right of visitation to the parties while the children were in possession of the other party.
The answer further pleaded that the defendant was mentally and morally unfit to have custody of the children because of his violent and ungovernable temper and because of his demeanor toward the children while in his custody and asked the court to grant full and complete custody to plaintiff and to deny defendant's motion.
The evidence shows that plaintiff and the defendant were divorced August 26, 1952. The original decree of divorce was offered in evidence. We, here, set out a part of that decree:
'Wherefore, it is the order, judgment and decree of this court that the plaintiff, Leta Pauline Cherry, be forever divorced from the bonds of matrimony contracted with Stephen Cherry; that the plaintiff be awarded the care, custody and control of the minor children, Robert Stephen Cherry and Roy Nolan Cherry, with the right granted defendant to have the custody of the children during the months of June, July and August of each year and with the further right of each party to have reasonable visitations with such children while they are in the custody of the other party. * * *'
Defendant testified that plaintiff has had custody of the children since the granting of the divorce and lived with her father on a farm in Howell County; that plaintiff's brother, at one time since the divorce, threatened defendant and told him that he did not want to see him hanging around.
Defendant stated that for the first two months after the decree of divorce he made no attempt to see the children because he did not know at that time that the court had granted him that right. He stated also that just after the divorce his wife gave him a tongue lashing. He testified the first time he attempted to see the children was at White's Station on Highway 80; that he went to the car where his wife and children were and plaintiff refused to lower the car window so he could talk to the children. He stated that he took two of his neighbors with him and went to where his wife and children resided, to visit the children; that plaintiff came out of the house and told him to leave. He testified he told plaintiff he had come to visit the children; that one of the children was with plaintiff and the oldest child started to come out and talk to him but plaintiff told him to go back. He testified about that time Mr. Newberry, plaintiff's father, came rushing out with a gun and told defendant not to come in the yard and stated: 'A. He said, 'I ain't going to have no cock-sucker in my yard'.' Defendant testified the children never got to visit with him; that he had some candy, gum and cookies but plaintiff would not consent that he be permitted to give them to the children.
Defendant testified that after the incident at the farm where her father had the gun, which was about three months after the divorce, he made no further attempt to visit with the children. He testified that at the time he got custody of the children he had his attorney, Mr. Green, send the sheriff after them, which was about June 1st; that the children stayed with him during the months of June, July and August and he surrendered possession September 1st.
He testified the children had been with him two days since that time, during the last Thanksgiving; that he obtained the custody at Mr. Landis' office, the day before Thanksgiving. He testified that when he started to deliver the children back to Mr. Landis' office, as agreed, he stopped at a filling station south of West Plains,; that while he was in the station to buy candy and gum for the children, plaintiff drove her car up by the side of defendant's car, where the children were, took one child out of the car and was starting to pull the other child out when he returned and prevented her. He testified that plaintiff slapped him, stamped his feet, kicked him, knocked his glasses off and scratched him; that she urged her brother to hit him; that the brother got out of the car and pulled his coat off but refused to hit defendant because he was wearing his glasses. This took place the day after Thanksgiving.
Defendant stated that plaintiff moved to Kansas City and took the children with her; that she did not notify him; that the only communication he had with her was through his attorney; that he complied with the orders of the court with reference to payments for the support of the children.
Plaintiff testified that she now lives with her brother in Kansas City; that she moved there to take care of her brother's three children, his wife being in a State Hospital. She stated they lived in a five room house; that the children attended school and church regularly and were well satisfied. She testified she and her brother both worked; she in a beauty parlor and he as a skilled machinist. Her evidence shows that the home is a suitable place for the rearing of the children and that her wages, together with the support paid by defendant, is sufficient to properly maintain said children.
Plaintiff testified that when the children were returned from defendant they were in poor physical condition and their clothing was in bad condition.
Plaintiff's testimony was to the effect that defendant was high tempered and guilty of such conduct while the children were with him as to make them nervous and upset and that the best interest of the children would be with plaintiff.
The trial court made a finding of facts in which he stated that the divorce case was filed in 1951, the hearing was had in said cause in 1952 at which time temporary custody was granted plaintiff; that defendant was awarded privilege of reasonable visits; that final hearing was had in the divorce case August 26, 1952, at which time a divorce was granted plaintiff as the innocent and injured party; custody of minor children was awarded her with defendant having the right to have the children visit him during the months of June, July and August. The finding stated that the motion to modify was heard January 20, 1954, at which time defendant requested a finding of facts.
We will not set out all of the facts but in such finding the court stated:
'* * * In March 1952, a decree of divorce was not granted, the case was taken under advisement, the reasonable visits permitted defendant with his children resulted in further complications and left this Court with the belief that such visits in the future could possibly lead to more serious trouble hence such reasonable visits as allowed in the temporary order was not made a part of the final decree, but each party had definite months allotted them for having the children. * * *'
The court's finding then stated that defendant is not a mentally or morally unfit person but is possessed of a violent temper and is unwilling to be reasonable in his attitude and demeanor toward plaintiff. He found that defendant's attitude on his visits with the children frightened and upset them and would be in the future detrimental to their welfare. The trial court found that the home in Kansas City, where the children live, is a suitable one and that the earnings of the plaintiff, together with the support awarded, is sufficient to maintain such children. The court then entered this judgment: 'Motions to modify are overruled.'
In our opinion we will refer to the...
To continue reading
Request your trial
-
E v. G
...306 S.W.2d 641; Schneider v. Schneider, Mo.App., 293 S.W.2d 157, 163; Hensley v. Lake, Mo.App., 274 S.W.2d 493, 494; Cherry v. Cherry, Mo.App., 272 S.W.2d 700, 703; Smith v. Smith, Mo.App., 267 S.W.2d 704; Mayo v. Mayo, Mo.App., 244 S.W.2d 415; Lambert v. Lambert, Mo.App., 222 S.W.2d 544.6 ......
-
S v. G
...Mo.App. 834, 14 S.W.2d 458; Hawkins v. Thompson, Mo.App., 210 S.W.2d 747, 751; Brake v. Brake, Mo.App., 244 S.W.2d 786.5 Cherry v. Cherry, Mo.App., 272 S.W.2d 700, 705; Wilson v. Wilson, Mo.App., 260 S.W.2d 770, 780; Williams v. Williams, Mo.App., 211 S.W.2d 740, 742.6 Green v. Perr, Mo.App......
-
Smith v. Smith, 32966
...v. Watkins, Mo.App., 230 S.W.2d 778; Baer v. Baer, Mo.App., 51 S.W.2d 873; Hurley v. Hurley, Mo.App., 284 S.W.2d 72; Cherry v. Cherry, Mo.App., 272 S.W.2d 700. It is our duty on appeal to review the entire record with regard for the guiding principle that the welfare of the child is of cont......
-
Hurley v. Hurley
...Mo.App. 834, 14 S.W.2d 458, 459(1)] and upon proof of new facts or changed conditions subsequent to the original decree [Cherry v. Cherry, Mo.App., 272 S.W.2d 700, 704(5); Lehr v. Lehr, Mo.App., 264 S.W.2d 35, 36(1); Montgomery v. Montgomery, Mo.App., 257 S.W.2d 189, 196(2); Ex parte Lofts,......