Dagley v. Dagley, s. 28924

• Decision Date: 20 July 1954
• Docket Number: 28949,Nos. 28924,s. 28924
• Citation: 270 S.W.2d 553
• Parties: DAGLEY v. DAGLEY.
• Court: Missouri Court of Appeals

Page 553

270 S.W.2d 553

DAGLEY v. DAGLEY.

Nos. 28924, 28949.

St. Louis Court of Appeals, Missouri.

July 20, 1954.

Rehearing Denied Sept. 10, 1954.

Frank Mashak, St. Louis, for appellant.

Josephus M. Todd and Louis E. Zuckerman, St. Louis, for respondent.

HOUSER, Commissioner.

These are consolidated appeals from two judgments of the Circuit Court of the City of St. Louis in proceedings ancillary to a divorce action. The appeal in case No. 28,924 is from a judgment modifying a custody award by taking from Dorman L. Dagley, the father, and awarding to Lucy Ellen Briley, the mother, the custody of their infant child Cecelia. The appeal in case No. 28,949 is from a judgment allowing Lucy Ellen Briley $225 suit money and $325 attorneys' fees as expenses in connection with the appeal of case No. 28,924.

On July 19, 1946 Dorman L. Dagley was granted a divorce from his wife Lucy Ellen and was awarded the complete custody of their then 2-year old daughter Cecelia, in an uncontested proceeding based upon the husband's charges that the wife had been intimate with and was pregnant by another man, and neglect of the child. Dorman L. Dagley was then and is now in the service of the United States Navy, and was and is a resident of the State of California. The decree made no reference to any visitation privileges of the mother. Although the decree did not expressly permit, it did not prohibit, Dorman L. Dagley from taking the child out of the jurisdiction.

On August 28, 1952 Lucy Ellen Dagley, now Lucy Ellen Briley, filed a motion to modify the custody order so as to give her the custody of the child, alleging that the decree of July 19, 1946 was improvidently entered, contrary to the rules of the court and without provision for visitation privileges on her part; that the decree awarding custody was made without her knowledge and contrary to a distinct understanding that she would not consent to the giving up of the custody of the child; that Floyd and Edna Newton, of Ellington and Bismarck, Missouri, the maternal grandparents, have had the actual custody of the child from July, 1946 until August 5, 1952, during which entire period the father made no effort to see the child except on two occasions, once when he stopped at the home of the grandparents in order to get a rifle which belonged to him, and again in August, 1951, when with the mother's permission he took the child to California for a two weeks' visit; that during the period 1946-1952 the father neglected the child and provided nothing for her support until the summer of 1952, when the grandparents received three $25 allotment checks from the Navy; that previously the father made his allotment in favor of his mother instead of his child; that the father has remarried and has a child by the new marriage; that during the visit in the father's home in 1951 his present wife Bessie placed Cecelia and Bessie's own child in a bath tub for punishment, and that she left them there unattended; that on that occasion the father became intoxicated and spent one night in a drunken condition on the lawn; that the father and Bessie offered Cecelia whiskey to drink; that on August 5, 1952 the father took the child from Missouri and removed her to California without authority from the court, thereby depriving the mother of the right to see the child within this state, causing Cecelia to have an emotional upset; that the mother is now remarried, living with her husband in St. Louis, ready, able and willing to give the child the loving attention to which she has been accustomed, and that the welfare of the child will be best served by permitting her to remain at the home of the maternal grandparents in Bismarck, Missouri.

Plaintiff's answer denied that the original decree was improvidently entered and that defendant was not aware of the fact that plaintiff was to have custody of the child, and alleged that when plaintiff returned from overseas service he found his wife pregnant by another man and eager for a divorce; that defendant was then living in St. Louis and the child was with the grandparents at Ellington; that from 1946 to 1952 plaintiff was in the United States Navy and had no opportunity to visit with the child except on the two occasions mentioned; that he did not neglect the child but that the child was left with the Newtons by mutual agreement betwee him and them that they take care of the child while he was in the service; that the child was provided with clothing and other things by plaintiff's mother at plaintiff's request; that most of the allotment money received by plaintiff's mother was used for an endowment policy for the child. He denied the allegations of neglect, misconduct and mistreatment, admitted that the Newtons had furnished a Christian home for the child and found no fault with their care of the child, admitted that the child had been taken to California, not surreptitiously as alleged, but after advice by counsel and alleged that the child now has the loving attention of her father and stepmother, in whose home she is being educated, receiving all of the care, love and comforts of life, and being raised in the church.

By her reply the mother, in addition to denials of the affirmative matter contained in the answer, alleged that she was coerced into signing the entry of appearance and that by misrepresentation she was denied the services of counsel in the divorce case in 1946.

Following a hearing of the motion to modify, the circuit court modified the custody provisions of the decree of July 19, 1946 by transferring custody from the father to the mother, reserving visitation privileges to him together with the privilege of taking the child, at his own expense, to California for two months in the summer time, under proper restrictive conditions. The judgment further awarded defendant $500 for attorneys' fees. Plaintiff's appeal from that judgment is numbered 28,924.

Plaintiff raises thirteen 'assignments of error.' The first point is that the trial court erred in sustaining the motion to modify for the reason that the order is against the weight of the evidence and is not supported by the credible evidence. It, therefore, becomes our duty to review the whole record, giving prime consideration to the best interests and welfare of the child, to determine whether defendant has shown by a preponderance of the credible evidence that there has been a change of facts and circumstances since the entry of the 1946 decree, sufficient to require a change in the custody provisions then made. We should defer to, and not lightly disturb, the judgment of the trial court, but if that judgment is in conflict with the clear preponderance of the evidence and discloses a manifest abuse of judicial discretion, it is our duty to direct the entry of the proper judgment under the law and the evidence. Davis v. Davis, Mo.App., 254 S.W.2d 270.

Defendant's evidence on the motion to modify consisted of her own testimony, and that of her parents, her present husband, a neighbor, and one of her attorneys. Plaintiff was not present and did not submit any evidence on the merits by way of deposition or by oral testimony, except that of Felix Chopin, head juvenile probation officer attached to the domestic relations court.

Divorced on July 19, 1946 defendant, then 21 years old, proposed to and married Lowell Polk on July 26, 1946. A child was born to her on January 27, 1947. Plaintiff had returned from overseas service on May 12, 1946. Defendant claims that plaintiff is the father of the child although she at no time told plaintiff it was his child, and Lowell Polk's name appears on the birth certificate as the father of the child. Another child was born to defendant during the Polk marriage which terminated by divorce in April, 1951. On April 11, 1951, defendant married Harold Briley, her husband at the time of the trial. The Brileys have one child of their own.

Shortly after the 1946 divorce plaintiff married his present wife. They have two children by that marriage. Plaintiff, now 34 years old, has been in the Navy continuously from the time he was 16 years of age.

From the time she was 7 months of age until she was 7 years old Cecelia lived with her maternal grandparents at Ellington and Bismarck, Missouri, in an 8-room house, where she had her own room and enjoyed proper care, attention and upbringing in a Christian home. During that period plaintiff, who was stationed in California, wrote to the grandparents inquiring about the child a total of eight times in 1946, once in 1951 and once in 1952. He sent no money, with the exception of the three allotment checks of $25 each of 1952. He sent but little clothing for her and did not remember her on Christmas and birthdays. He visited with her a few minutes in 1947 at which time he visited the home of the grandparents and took away a gun which belonged to him. By consent of the parties concerned plaintiff took Cecelia to California for a two weeks' visit in his home in the summer of 1951. From 1946 to 1952 defendant lived in St. Louis. Except when there was sickness in her family defendant would come to the home of her parents on week ends, at which time she would see Cecelia. Defendant's father, Floyd Newton, a contractor, 62 years of age, and her mother, Edna, aged 50 years, have been and are financially able to support the child and are willing to continue to do so. They would welcome the child's return to their home. Defendant's husband at the time of the trial, Harold Briley, a machinist by trade, makes between $100 and $115 a week and is financially able to care for Cecelia. He would be glad to have the child in his home. The Brileys, husband, wife and two boys, live in three rooms in the City of St. Louis.

In August, 1952 plaintiff took Cecelia from Missouri to California under the circumstances detailed in Middleton v. Tozer, Mo.App., 259 S.W.2d 80, and which need not be repeated here. Upon his arrival in...