Chilcutt v. Baker

Decision Date15 December 1964
Docket NumberNo. 31741,31741
Citation384 S.W.2d 854
PartiesVerla CHILCUTT, Plaintiff-Appellant, v. Joseph W. BAKER, Defendant-Respondent.
CourtMissouri Court of Appeals

Nelson B. Evans, Arnold, for plaintiff-appellant.

Joseph W. Dierker, John B. Sharpe, St. Louis, for defendant-respondent.

DOERNER, Commissioner.

Plaintiff appeals from an order granting only in part her motion to modify that portion of a divorce decree respecting the custody of the parties' children. This is the second time the matter has reached this court, Chilcutt v. Baker, Mo.App., 355 S.W.2d 338.

A brief resume of the prior events will prove helpful to an understanding of the present proceedings. Plaintiff Verla Chilcutt, then Verla Baker, filed suit for divorce on February 27, 1960, charging her then husband, defendant Joseph Baker, with general indignities. She prayed for a decree granting her custody of their two chidren, Ralph, then nine years of age, and Patricia Ann, then three. Defendant filed an answer and cross-bill on October 10, 1960, in which he alleged that plaintiff had deserted him on February 15, 1960 and had associated with another man (her present husband, James Chilcutt) both prior to and after the separation. He also sought custody of the children. Plaintiff did not appear at the trial and her petition was dismissed for failure to prosecute. A stipulation was filed which disposed of the rights of plaintiff in certain real estate for a stipulated sum, and which further provided that defendant, if granted a divorce, should have custody of the two children subject to certain custodial privileges to be granted the plaintiff. However, by its decree of October 31, 1960, the court gave the custody of the children to defendant but made no award of visitation or temporary custodial rights to the plaintiff.

On February 4, 1961, plaintiff filed what was captioned, 'Motion to Modify.' In it she alleged that she had signed the stipulation regarding the custody of the children without benefit of counsel; that in doing so she had relied solely on representations made to her by counsel for her then husband, the defendant; and that she had since ascertained that she had not been correctly advised regarding her rights of custody. She prayed that the decree be modified by granting her custody of the children, together with an allowance for their support. At the conclusion of the hearing the trial court denied her motion, and plaintiff appealed. As we pointed out in our former opinion, 355 S.W.2d 338, 339, the allegations in plaintiff's motion constituted an attack on the validity of the decree itself rather than the averments ordinarily found in the customary motion to modify. But we said that since the matter had been tried by both parties upon the theory that it was a motion to modify we would therefore consider it amended to meet the proof and theory upon which it was tried. We further stated that the motion had been presented in such a cursory manner that the facts necessary for a modification of change of custody had not been as exhaustively developed as they should have been, and for that reason the court had properly denied the transfer of custody to the plaintiff. We held, however, that the evidence was sufficient to call for a modification of a decree so harsh that it made no provision for visitation privileges. Accordingly, we reversed the judgment and remanded the case with directions to modify the decree so as to give plaintiff certain stated rights of temporary custody. Our opinion was handed down on March 20, 1962.

It appears from the transcript that thereafter, on October 11, 1962, plaintiff filed what was captioned, 'Plaintiff's First Amended Motion to Modify' in which she alleged that since the original decree had been granted there had been a change of circumstances in that she had remarried; that she and her present husband were able to frunish a suitable and proper home for the children; and that they were desirous of having custody of and properly raising them. Plaintiff further alleged that since the denial of her first motion for change of custody further changes in the circumstances relevant to custody had occurred in that plaintiff and her husband had purchased a seven room house, located near a school and a church; that plaintiff's mother-in-law was living with plaintiff and her present husband, and would care for the children while both were away at work; and that both children had expressed a desire to live with plaintiff. The prayer was for absolute custody, with reasonable visitation privileges in favor of defendant, and for support money.

The transcript further indicates that pursuant to a stipulation signed by the parties the court on January 16, 1963 sustained plaintiff's motion in part by modifying the decree so as to increase the time during which plaintiff was to have temporary custody of the children.

Less than five months later, on June 4, 1963, plaintiff filed the motion which gave rise to this appeal, terming it, 'Plaintiff's Motion to Modify Divorce Decree.' As subsequently amended, her allegations are that since the last decree there has been a great change in the circumstances, condition and facts relative to the welfare of the children, especially Patricia Ann, in that: the facts supporting the last motion to modify were not exhaustively developed; the attorneys who were employed to represent plaintiff in the presentation of the last motion induced plaintiff to sign the stipulation regarding custody, subsequently approved by the court, '* * * which stipulation * * * was not for the benefit and welfare of the said children and which stipulation was signed by reason of the ill advice and inducement of her attorneys and against the will of this plaintiff'; that the children should attend Sunday School and church with their mother; that plaintiff and her present husband have a new seven room home close to a school and to their church; that the children, especially Patricia Ann, have expressed a sincere desire to live with plaintiff and her present husband; that the children are really in the custody of defendant's mother 'who is aged and very much handicapped by reason of said age, the result of which is neglect of care and control'; that the welfare of the children would best be served by granting permanent custody to plaintiff with reasonable rights of visitation and temporary custody to defendant; that defendant has failed to obey the decree of January, 1963; and that plaintiff has a competent, trustworthy and good person to care for the children while she is away from home. Plaintiff prayed that the decree of divorce be modified to give her absolute custody, subject to visitation and temporary custody privileges in favor of defendant; for an allowance for support; and for attorneys fees and costs.

At the start of the hearing on the present motion counsel for plaintiff, in his opening statement, declared that plaintiff's evidence would show that plaintiff's former counsel, who had represented plaintiff in the preceding motion which culminated in the modification of January 16, 1963, had coerced plaintiff into signing the stipulation regarding temporary custody, over her protest that she did not want to sign, on the representation that unless she signed she wouldn't get anything. Counsel for defendant objected, and in the ensuing discussion stated that if that subject was gone into he wanted time to subpoena former counsel. The court pointed out that the present motion was one to modify the amended divorce decree, which acknowledged the fact that the decree (as previously modified) existed; that no motion to set aside the decree or the modification of January 16, 1963, had been filed; and that the evidence at the hearing would be confined to any change of condition which had occurred since that date. Counsel for plaintiff then stated that, 'We would like to have a slight recess to file a motion to set aside that stipulation that was signed, for the reason of the fact that it was signed in coercion and ill-advised.' The court informed plaintiff's counsel that he would pass plaintiff's motion down on his docket and that if counsel cared to file any other motions he should prepare them and the court would look at them. Counsel for plaintiff presumably did not prepare or file any other motion for none is included in the transcript. Instead, the record shows that the cause was recessed until the completion of the court's docket, and that the parties then proceeded to trial.

Plaintiff's testimony was that since May, 1962, plaintiff and her present husband have been living in a new home which consists of a living room, three bedrooms, a kitchen, one-and-a-half baths, and a utility room, and has all modern conveniences. It is located in an excellent neighborhood, close to the church which they regularly attend, and a quarter of a mile to a public school, to which bus service is available. Plaintiff and her present husband are both employed at Industrial Engineering in Brentwood, she at a salary of $80 per week and he at $84. They have a bank account (amount not stated) and are saving money. She and her husband arrive home from work about 4:30 P.M., which is the approximate time Patricia Ann would return home from school. She has made arrangements with her next door neighbor, Mrs. Emilie Dodson, to take care of the girl after school if that is necessary. Plaintiff described defendant's home as having four large rooms downstairs, and the same amount of unfinished space upstairs. She stated that the furnace had burned out, that heat is supplied by one gas heater in a middle room, 'and when I would go to visit the children they had on three pairs of pants to keep warm and sweaters in the house.' As to the neighborhood, plaintiff stated that it was poor, that there was a parking lot on one side of defendant's house, a little store on the other, and an old house across the street. On...

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8 cases
  • State v. Davis
    • United States
    • United States State Supreme Court of Missouri
    • 28 Abril 1978
    ...witnesses in furtherance of justice . . . ." 123 S.W. at 477; Gosnell v. Gosnell, 329 S.W.2d 230, 235 (Mo.App.1959); Chilcutt v. Baker, 384 S.W.2d 854, 860 (Mo.App. 1964); Maryland Casualty Co. v. Spitcaufsky, 352 Mo. 547, 178 S.W.2d 368, 372 16 Cf. People v. Bennett, 413 Ill. 601, 110 N.E.......
  • P-------- D-------- v. C-------- S--------
    • United States
    • Court of Appeal of Missouri (US)
    • 11 Septiembre 1965
    ...other parent that it frequently is said that such conduct may be sufficient to justify and require a change of custody [Chilcutt v. Baker, Mo.App., 384 S.W.2d 854, 860-861; S_____ v. G_____, supra, 298 S.W.2d at 76-77(13); Luethans v. Luethans, Mo.App., 243 S.W.2d 801, 803; Rone v. Rone, Mo......
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    • United States
    • Court of Appeal of Missouri (US)
    • 6 Abril 1970
    ...§ 510.310, subd. 4; T. v. T., Mo.App., 447 S.W.2d 795, 796 2); Burger v. Wood, Mo.App., 446 S.W.2d 436, 441--442(4); Chilcutt v. Baker, Mo.App., 384 S.W.2d 854, 860(9).3 F _ _ v. F _ _, Mo.App., 333 S.W.2d 320, 327; Caspermeyer v. Florsheim Shoe Store Co., Mo.App. 313 S.W.2d 198, 207(7); Bo......
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    • United States
    • Court of Appeal of Missouri (US)
    • 5 Diciembre 1966
    ...Papenberg, Mo.App., 289 S.W.2d 468; Bettinger v. Bettinger, Mo.App., 355 S.W.2d 354; Long v. Long, Mo.App., 357 S.W.2d 243; Chilcutt v. Baker, Mo.App., 384 S.W.2d 854. The husband's brief contends that there has been no showing of changed conditions because, in fixing the amount of the chil......
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