Davis v. Davis

• Decision Date: 17 February 1962
• Docket Number: No. 7964,7964
• Citation: 354 S.W.2d 526
• Parties: Ardys Marie DAVIS, Plaintiff-Appellant, v. Harry Anderson DAVIS, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 526

354 S.W.2d 526

Ardys Marie DAVIS, Plaintiff-Appellant, v. Harry Anderson DAVIS, Defendant-Respondent.

No. 7964.

Springfield Court of Appeals, Missouri.

Feb. 17, 1962.

Kearby & Calvin, Poplar Bluff, for plaintiff-appellant.

Roy W. McGhee, Jr., Piedmont, for defendant-respondent.

STONE, Presiding Judge.

This appeal brings before us another broken home involving not only abandonment by the parents of their marital vows to love, honor and cherish each other 'till death do us part' but also disposition of their two innocent children whose custody is the sole remaining subject of dispute between the parents. Plaintiff Ardys instituted this action by the filing of her petition on January 21, 1960, in which she sought a divorce for alleged indignities [Sec. 452.010], ¹ custody of the two minor children, and monetary allowances for alimony, attorney's fee and child support. Defendant Harry countered with a cross-bill in which he sought the divorce, likewise for alleged indignities, and custody of the two children. Following trial on July 8, 1960, the court granted Ardys a divorce and attorney's fee but no alimony, awarded care and custody of both children to Harry 'during the months of September through May of each year' and to Ardys 'during the months of June through August of each year,' and directed Harry to pay $80 per month child support during the months of June through August. No motion for new trial was filed by either party, and no appeal was taken in regular course. Rule 82.04; Sec. 512.050. Almost five and one-half months after judgment, towit, on December 20, 1960, Ardys (then represented by other counsel) sought a special order of this court allowing her to appeal under Rule 82.07. Also Sec. 512.060. Upon her sworn motion which cast the blame upon her trial counsel for failure to perfect an appeal in regular course and which contained numerous blunt and persuasive representations as to what the record would show (many of which were either unwarranted or exaggerated, as the subsequently-prepared transcript demonstrates), we granted the requested special order and Rdys' notice of appeal special order and Ardys' notice of appeal Sec. 512.060.

Ardys married Harry on October 9, 1947, in Piedmont, Missouri. Their final separation was on December 12, 1959. During the interim, their conjugal course was interrupted by a prior divorce and remarriage and was punctuated by several separations. Ardys uncertainly hazarded an estimate of 'two or three other' separations but volunteered that 'I could be wrong' and suggested that 'you could ask Harry,' while Harry, perhaps with a trace of bitterness, thought that 'when I lost track it was around twelve times and there have been a few since then.' Of this fitful and intermittent union, the first child, David Eugene, was born on August 12, 1949, and the second, James Andrew, was born on August 9, 1955 (after the first divorce and remarriage), so the children are now about 12 1/2 and 6 1/2 years of age, respectively.

Ardys, the appealing party, presents only two 'points' in her brief, towit, (1) 'the trial court's findings that plaintiff was the innocent and injured party and that the minor children were of tenders (sic) years entitled plaintiff to the custody of said children' and (2) 'all things being equal in divorce suits custody of children must be granted to the wife, especially if they are young children.' There being no express findings in the judgment and decree nisi, Ardys' first point obviously contemplates and depends upon the implied finding, inherent in and essential to any such general decree, that the party to whom the divorce is granted must have shown himself or herself (as the case may be) to have been the innocent and injured party. Simon v. Simon, Mo., 248 S.W.2d 560, 562(1); Freebairn v. Freebairn, Mo.App., 349 S.W.2d 486, 487(3); McCoy v. Briegel, Mo.App., 305 S.W.2d 29, 35(9). But, to have concluded that Ardys was 'innocent' (within the meaning of that term as employed in divorce cases), the trial court was required to find no more than that her conduct would not have entitled Harry to a divorce on his cross-bill, so no more than that is necessarily inherent in the implied finding of Ardys' innocence [Elgin v. Elgin, Mo.App., 301 S.W.2d 869, 872(3); Cadenhead v. Cadenhead, Mo.App., 265 S.W.2d 426, 436(6); Dunlap v. Dunlap, Mo.App., 255 S.W.2d 441, 442(1); Politte v. Politte, Mo.App., 230 S.W.2d 142, 148; Rowland v. Rowland, Mo.App., 227 S.W.2d 478, 484(3)]; and, in determining custody of the minor children, Ardys' success in obtaining the divorce was not in the trial court, and is not here, a decisive and controlling factor. L_____ v. N_____, Mo.App., 326 S.W.2d 751, 754(3); Paxton v. Paxton, Mo.App., 319 S.W.2d 280, 288(10); McKenzie v. McKenzie, Mo.App., 306 S.W.2d 588, 591(3) For that matter, the transcript on appeal leaves us in grave doubt as to whether Ardys was the innocent and injured party and as to whether she should have had the decree; but, with no appeal by Harry and with Ardys' counsel representing (albeit dehors the record) that both she and Harry have taken other spouses, our reluctance to compound trouble and tragedy for those helplessly involved in this marital melange, towit, not only the children born to the principals in this case but also those born to their present spouses in previous matrimonial ventures, has dissuaded us from setting aside the decree of divorce to Ardys and thereby leaving the parties in a bigamous fret and stew.

Ardys' second point, i. e., 'all things being equal in divorce suits custody of children must be granted to the wife, especially if they are young children,' presents nothing for appellate review. Dansker v. Dansker, Mo.App., 279 S.W.2d 205, 209(4); Lockhart v. Lockhart, Mo.App., 271 S.W.2d 208, 209(1). It may be recognized as an abstract statement of principle frequently found in similar language, although it should be noted that applicability of this principle is dependent upon 'all other things being equal' [L_____ v. N_____, supra, 326 S.W.2d loc. cit. 754-755(5), and cases collected in footnote 7] and that it is said to be particularly relevant where the custody of young girls is involved. McKenzie v. McKenzie, supra, 306 S.W.2d loc. cit. 591(6); Wilson v. Wilson, Mo.App., 260 S.W.2d 770, 776(7); Davis v. Davis, Mo.App., 254 S.W.2d 270, 274(6); Armstrong v. Armstrong, Mo.App., 185 S.W.2d 845, 847(4). However, there is no paucity of cases demonstrating that, where the best interests of minor children will be served thereby, custody will be awarded to the father. L_____ v. N_____, supra, 326 S.W.2d loc. cit. 755(6), and cases collected in footnote 8; Tootle v. Tootle, Mo.App., 329 S.W.2d 218, 224. In fact, that was done in two of the three cases cited in Ardys' brief. Thomas v. Thomas, Mo.App., 288 S.W.2d 689, certiorari denied 352 U.S. 873, 77 S.Ct. 98, 1 L.Ed.2d 77; Cadenhead v. Cadenhead, supra, 265 S.W.2d loc. cit. 436-437. In the final analysis, most of the commonplace truisms reiterated by rote in child custody cases are of scant assistance, for courts award custody not by application of academic principles but by ascertaining, insofar as is humanly possible, what will best serve and promote the welfare of the children involved. That is the only inflexible and unyielding, in fine the paramount and supreme, principle in custody cases. To that principle, all others must yield and give way; and, in its application, there must be no compromise or reservation. See cases collected in West's Missouri Digest, Vol. 11, Divorce, k298(1).

With an eye single to the welfare of David and James, we have read and pondered the transcript which, of course, we must take as it comes to us. Bennett v. Wood, Mo., 239 S.W.2d 325, 327(2); Prentice v. Williams, Mo.App., 324 S.W.2d 466, 469(2). Since the court's action in granting a divorce is not under review, the sorry connubial record of Harry and Ardys is of value only insofar as it bears upon the contested issue as to custody of the children [In re Krauthoff, 191 Mo.App. 149, 170, 177 S.W. 1112, 1120; Tootle v. Tootle, supra, 329 S.W.2d loc. cit. 223-224(6)]; and, with the books already bulging with innumerable marital histories reported in minute, tedious and repetitive detail and running the entire literary scale from lurid and racy on the one end to dull and insipid on the other, the instant record affords neither reason nor excuse for more than a summary of the circumstances of primary importance.

For more than ten years prior to trial, Harry (characterized by Ardys as 'a hard working man') had been employed regularly as a letter carrier working out of the Piedmont post office. His 'take-home pay' from this employment was, at the time of trial, '$159.06 every two weeks,' and he had some additional income, relatively small and highly variable in amount, from part-time plumbing and electrical work. However, Ardys testified that, although she 'didn't like the idea of working' outside the home, 'I had to do it,' and she quoted her husband as having said that 'he would rather I didn't, but if I wanted to, to go ahead.' Harry insisted that he had provided adequately for his family, that it was not necessary for Ardys to work, and that it was 'her idea' to do so. In any event, Ardys was engaged, during most of her married life, in some character of house-to-house or customer solicitation such as the sale of greeting cards, hosiery, or 'food plans.' At first, she averaged 'maybe a couple of days a week' but 'towards the last * * * I tried to put in five days a week.' Whatever her earnings may have been (as to which there was no definite or satisfactory proof), she said that most of it was used for family purposes. To the contrary, Harry stated that Ardys had spent her earnings 'as she pleased, entertainment for herself and a few gifts for her friends,' and that, so far as he knew, none of it had been used to pay family expenses. We note...