Chilcutt v. Baker, 30940
| Court | Court of Appeal of Missouri (US) |
| Citation | 355 S.W.2d 338 |
| Docket Number | No. 30940,30940 |
| Parties | Verla Baker CHILCUTT, (Plaintiff) Appellant, v. Joseph W. BAKER, (Defendant) Respondent. |
| Decision Date | 20 March 1962 |
Kramer, Chused & Kramer, Richard S. Rosenthal, St. Louis, for appellant.
Joseph W. Dierker, John B. Sharpe, St. Louis, for respondent.
This is an appeal from a judgment denying modification of a decree of divorce. The decree granted the divorce to the defendant Joseph Baker on a crossbill, and awarded him custody of two children born of the marriage. By the motion to modify here considered, the mother of the children sought to have the decree changed so that the custody of the two children would be awarded to her.
It appears from the transcript of record that Verla Baker, now Verla Baker Chilcutt, filed suit for divorce on February 27, 1960. She charged in her petition that Joseph Baker, by certain commissions and omissions constituting indignities to her, had rendered her condition as his wife intolerable. She prayed for a decree granting her a divorce and custody of the two children, a girl three years of age and a boy nine.
The defendant answering denied the indignities charged, and by way of crossbill alleged that the plaintiff had deserted him on February 15, 1960, and further alleged that she had associated with another man both prior to and after the separation. He also sought custody of the children.
At the trial a stipulation was filed which disposed of the rights of the plaintiff in certain real estate for a stipulated sum. It further provided that the defendant, if granted a divorce, should have custody of the two children. This provision was supplemented by other provisions which gave the wife certain custodial privileges. They are as follows:
As stated, the divorce decree gave the custody of the children to the father and made no award of visitation rights or the right of any temporary custody to the mother. The motion to modify the decree is quite brief. All of its averments and its prayers are as follows:
'Comes now Verla Chilcutt formerly Verla Baker, and respectfully requests this Honorable Court to modify the decree of divorce rendered in these proceedings on November 3, 1960, particularly as it relates to the custody of her minor children, Ralph Baker born January 6, 1951 and Patricia Ann Baker born September 9, 1956.
'Your petitioner represents to the Court at the time she executed stipulation for custody of minor children and property settlement on or about September 20, 1960 she was without benefit of counsel; that she relied solely on the representations made to her by counsel for her then husband, Joseph W. Baker; that she has since ascertained that she had not been correctly advised regarding her rights of custody of her minor children.
'Your petitioner therefore prays this Court that the decree of divorce heretofore granted be modified by granting her custody of the two minor children, Ralph Baker and Patricia Ann Baker; that the Court grant her adequate support money for the support of said minor children, and that the court grant her an allowance for attorneys' fees and for costs.'
It will be noted that the above, although captioned 'Motion to Modify', alleges facts that constitute an attack on the decree itself rather than the customary motion to modify. The matter was tried, however, by both parties upon the theory that it was a motion to modify. We shall therefore consider it amended to meet the proof and theory upon which it was tried. Rule 55.54, V.A.M.R. See notes under 509.500 RSMo 1949, V.A.M.S. Ingram v. Kiewit, Mo.App., 331 S.W.2d 681; Vitt v. Baer, Mo.App., 335 S.W.2d 681.
The plaintiff's evidence was that she had married James Chilcutt a month after she had been divorced from Joseph Baker. She stated that she and her present husband were living in St. Louis in a three-room flat, and that their residence is near a school. She stated that she and her husband regularly attended a church of the same denomination that the children and her former husband attended. She and her present husband are both factory workers, and both work for the same company. He earns $76.00 a week and she earns $64.00 a week. Both she and her present husband testified that they wanted the children. She testified that just prior to the divorce her former husband ordered her from their home, during the absence of the children, and that she took a room in the same rooming house where Chilcutt was then living.
She denied that there had been any improper association between her and Chilcutt, and stated that they were thrown into association with each other because they both worked at the same place. Chilcutt's testimony was to the same effect.
Baker testified that the two children were living with him and his mother, who took care of them while he was at work. They lived in a four-room flat. His mother had come to St. Louis from a farm in Christian County, Missouri, to take care of his children, and his father was to move up to St. Louis to live with them, also. He stated that the children attended church and that his son, then ten years of age, was in school.
These constitute essentially all of the scant facts before the court upon which the modification of the decree was denied, except for the testimony of the plaintiff in relation to the signing of the stipulation mentioned. On this subject she testified that Baker, then her husband, had requested her to go to his lawyer's office and sign the stipulation set out above. She went with him and was advised by his lawyer to discharge her own lawyer and to sign the...
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