Conrad v. Conrad

• Decision Date: 07 June 1927
• Docket Number: Mo. 19800.
• Citation: 296 S.W. 196
• Parties: CONRAD v. CONRAD.
• Court: Missouri Court of Appeals

296 S.W. 196

CONRAD v. CONRAD.

Mo. 19800.

St. Louie Court of Appeals. Missouri.

June 7, 1927.

Appeal from Circuit Court, St. Louis County; G. A. Wurdeman, Judge.

"Not to be officially published."

Action by Dorothy Hoffman Conrad against Clarence C. Conrad. Decree for plaintiff, and, from an order overruling defendant's motion to set aside an order permitting plaintiff to remove their minor child out of the court's jurisdiction, defendant appeals. Affirmed.

Wm. Zachritz, of St. Louis, for appellant.

Clarence L. Wolff, of St. Louis, for respondent.

BENNICK, C.

This is an appeal from an order of the circuit court of St. Louis county, overruling defendant's motion to set aside an order permitting plaintiff to remove a minor child of the parties out of the jurisdiction of such court. The proceeding originated as an action for divorce, brought by the wife against the husband. A decree of divorce was granted plaintiff on April 24, 1922, whereby she was awarded the care, custody, and control of the minor child, Clarence C. Conrad, Jr., subject to the right and privilege of defendant to take said child to his own home from Friday of each week until the following Monday. Defendant was required to pay the sum of $40 a month for the support and maintenance of the child, and it was further ordered that the child should not be removed from St. Louis county, or the city of St. Louis, without the consent of both parents and the approval of the court.

In August, 1922, while the child was in the possession of defendant, pursuant to the terms of said decree, defendant removed it to Kansas City, without the consent of plaintiff or the approval of the court, and kept it there for a period of two years and two months, during all of which time plaintiff neither saw the child, nor, in fact, was informed as to its whereabouts. Throughout the entire time that defendant resided in Kansas City he was employed, and during the daytime he left the child in the care of women, for the most part strangers to him, with whom he boarded.

Defendant subsequently returned to the town of Overland, in St. Louis county, and began boarding with a family named Walsh, by whom the child was cared for while defendant was at work, although these people were not relatives either of defendant or of the child. It appears that plaintiff became advised in some manner that defendant had again brought the child within the jurisdiction of the court, and thereupon instituted habeas corpus proceedings to regain its custody. Defendant was cited for contempt of court, and was temporarily lodged in the county jail, but was later released on bond.

In the interim, plaintiff had married a Mr. Swanson, of Chicago, Ill., and had there after resided in said city. On November 7, 1924, plaintiff moved the court to permit her to remove her son temporarily to Chicago, which motion, after a hearing thereon, was sustained by the court. Upon motion of defendant, such order was later modified so as to require plaintiff to return the child to University City, the former home of the parties, on December 29, 1924, for the purpose of affording defendant access to it for two hours in the afternoon of such day. Plaintiff complied with this order at her own expense, although her counsel charges, both in his brief and in oral argument, that defendant failed to avail himself of the privilege thus granted, which charge has not been refuted by counsel for defendant.

On September 15, 1925, defendant filed his motion to set aside the order of November 7, 1924, permitting plaintiff to remove the child temporarily out of the jurisdiction of the court, and to order and require plaintiff to bring the child into the court, and to comply with provision of the original decree of divorce permitting defendant to have the child with him each week during the period of time referred to in said decree. After a hearing upon this motion, the same was overruled, from which adverse ruling defendant has perfected this appeal.

At the hearing held on such motion on September 26, 1925, defendant admitted that he had failed and refused to make the payments of $40 a month, ordered by the court for the child's support, since October 1, 1924. Defendant testified that at the time he was boarding at 4263 West Pine boulevard, in the city of St. Louis; that he was employed as a salesman for the Schnure Motor Car Company, earning $150 a month; and that, if the court granted him the custody of the child from time to time, it was his intention to intrust it to the care of his father and mother, who resided at Arcadia, Mo. It was further disclosed by defendant's own testimony that his father was 67 years of age, and was, and for many years had been, in bad health, and that his mother was 50 years of age, and was crippled, so that she was required to walk with a crutch.

It need scarcely be said that by reason of the decree of divorce having been granted to plaintiff from defendant, the minor child involved in this litigation became a ward of the circuit court of St. Louis county; that jurisdiction to award the custody of such child vested in that court to the exclusion of all others; that such jurisdiction is a continuing one until such time as the child attains its majority; and that by reason thereof the court retains power to modify its decree from time to time regarding the custody of the child as new conditions may arise and circumstances change to make a modification thereof necessary. Upon this appeal, however, we must review the evidence for ourselves, and arrive at our own decision, even when the testimony is conflicting, though it is well agreed that the finding of the trial judge on a motion to modify a...