Davis v. Davis, 28541

• Decision Date: 20 January 1953
• Docket Number: No. 28541,28541
• Citation: 254 S.W.2d 270
• Parties: DAVIS v. DAVIS.
• Court: Missouri Court of Appeals

Page 270

254 S.W.2d 270

DAVIS v. DAVIS.

No. 28541.

St. Louis Court of Appeals, Missouri.

Jan. 20, 1953.

Hinkel & Carey, Sidney L. James, St. Louis, for appellant.

Burr S. Goodman, St. Louis, for respondent.

HOUSER, Commissioner.

This is an appeal from the judgment of the circuit court modifying a divorce decree with reference to the custody of Patricia Ann Davis, a child who is now 8 years of age.

On September 11, 1945 the father of the child, Charles Earl Davis, on his petition obtained a divorce from Evelyn Davis, together with the custody of the then 2 year old child from February 1st to August 1st of each year. The court awarded the custody of Patricia Ann to her mother from August 1st to February 1st of each year, and ordered that during the periods when the respective parties had custody the other party should have temporary custody on Saturdays and Sundays.

In 1947 both parties filed motions to modify the 1945 decree. After a hearing the trial court dismissed the mother's motion, sustained the father's motion, and gave him full-time custody of the child except for Sunday, Christmas and birthday afternoons, and the month of August, during which times the mother was allowed visitation privileges.

On November 1, 1951 Evelyn Davis Hartgraver, the mother, filed a motion to modify the 1947 decree, alleging the following changes of condition: that the child has attained the age of 8 years; that the mother is happily remarried, has a comfortable home and that her present husband, Harold Hartgraver, is willing and anxious to provide a home for the child; that although the custody of the child was granted to the father, her custody and control in fact have been assumed by the grandparents of the child, with whom she has lived constantly; that the grandmother is in poor health and unable to properly care for the child, who is permitted to roam the streets unattended and is not receiving proper attention. Movant prayed that the 1947 decree be modified so as to give to the mother the custody of Patricia Ann, with reasonable visitation privileges to the father.

After a full hearing on November 23, 1951 the mother's motion to modify was sustained and the decree was again modified to give the mother custody of the child, allowing the father temporary custody every other week from 1 P. M. on Saturdays until 4 P. M. on Sundays. From that judgment Charles Earl Davis, plaintiff, has appealed, claiming that there was no evidence of new facts or changed conditions warranting modification of the previous judgment and no evidence that the welfare of the child requires a change in custody or that a change in custody would benefit the child.

Following the 1945 divorce and custodial arrangement, and on November 7, 1946, Evelyn Davis married Harold Hartgraver. No children have been born of this marriage. Harold Hartgaver is a maintenance man employed in the Water Division of the City of St. Louis at a salary in excess of $200 per month. He has been in the employ of the city, in civil service status, for nearly five years. He is fond of Patricia Ann, and testified that he would treat the child as his own and give her proper religious training. He is a member of the Methodist Church. He rents the house at 1712a North 13th Street in the City of St. Louis for $12 per month. He has no outstanding debts. Their living accommodations consist of three rooms, a bedroom, kitchen and dining room. There is a place for Patricia Ann in the front room, where she would be to herself. They have toys for Patsy, a big yard and there are children in the neighborhood with whom she can play. The Hartgraver home is very clean and nicely kept. Evelyn Davis Hartgraver is presently employed, but intends to give up her work. She testified that she would dress the child properly, take her to school, continue her in her present school until the end of the school year, and devote her time to the child.

Charles Davis married his present wife, Laura, after the divorce. They have a 5 year old child and a second child less than a year of age. Laura Davis wants her husband to retain custody of Patricia Ann. She loves the child like her own, and wants very much to have her in the home. She thinks of Patricia Ann as one of her own children. Mrs. Davis is not employed outside the home. She devotes all her time to the maintenance of the home and the care of the children, and sees to it that Patricia Ann plays with her children. Patricia Ann usually goes to bed by 9 or 9:30. The Davises are 'always there' when she goes to bed and if she is not at her grandmother's she is at her father's house. Davis works for the City of St. Louis in the assessor's office at a salary of $275 per month. He has at all times supported Patricia Ann and wants to keep her. This is Davis' third marriage. He was separated from his present wife on one occasion for approximately five weeks. During this separation his former wife Evelyn, movant herein, called him twice at his office suggesting that they go out together on a boat excursion, but he declined to go with her. From June, 1947 until October, 1950 the Davis home was in the 2600 block of 13th Street in the City of St. Louis, in a 3-room house rented by plaintiff. Plaintiff's mother, Della Wells, lives at 10th and Madison, which is two or three blocks from the Davis house. The Wells' living quarters consist of three large rooms and one small room. In October, 1951 Mr. Wells became ill. The Davis family then moved into the Wells home. Mr. Wells died on October 20, 1951. Since that time the household has consisted of Della Wells, Patricia Ann Davis, Charles and Laura Davis, and their two children.

Our duty is to review the whole record, giving prime consideration to the best interests and welfare of the child, to determine whether movant has shown by a preponderance of the credible evidence that there has been a change of facts and circumstances occurring since the entry of the 1947 decree, sufficient to require a change in the custodial arrangements then made. On this review 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, this court should direct the entry of the proper judgment under the law and the evidence. Fago v. Fago, Mo.App., 250 S.W.2d 837.

To establish her case defendant maintains that Patricia Ann has been living with her grandmother, Della Wells, since the entry of the 1947 decree, and not with plaintiff to whom the court awarded legal custody; that plaintiff has not taken care of the child; and that the grandmother has been too sick to properly care for the child; that Mrs. Wells is 'sick quite a bit' and has 'some kind of spells' which last from a few days to a week; that she goes to a doctor regularly; that she has been sick in bed about four times during the past year; that during her illnesses Patricia Ann is cared for, the dishes washed and the house cleaned by a neighbor's child who is about 10 years old; that the 10 year old takes Patricia Ann shopping on 14th Street and to the show 'and different places'; and that the child, when delivered into defendant's custody on weekends, is not clean and her hair is not combed. Plaintiff concedes that his mother has been ill but claims that she has only 'usual ailments' and is ill no more than anybody else. According to Mrs. Wells she has no chronic illness, only nervousness, and is in no worse health than any other woman who goes through her stage of life. She is 50 years of age.

On the question of actual residence plaintiff, conceding that the child spent most of her time at the home of Mrs. Wells, testified that the child stayed at his home during the first month following the entry of the 1947 decree but that a situation developed by reason of the conduct of defendant's husband which made it impossible to keep the child there. This was the belligerent attitude of Mr. Hartgraver when he would come to the Davis home on Sundays to take the child for afternoon visiting. He would cause...