Derringer v. Derringer, 23947
| Decision Date | 06 April 1964 |
| Docket Number | No. 23947,23947 |
| Citation | 377 S.W.2d 513 |
| Parties | Donna M. DERRINGER, Plaintiff-Appellant, v. Edward L. DERRINGER, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
Hammond C. Woods, Kansas City, for appellant.
W. B. Ennis, Ennis, Browne & Martin, Kansas City, for respondent.
MAUGHMER, Commissioner.
This is an appeal from a judgment order modifying a divorce decree with respect to custody of a minor child. Appellant correctly points out that in this state a divorce action is a statutory suit at law and not in equity, but it does partake of the nature of a suit in equity and is considered de novo on appeal. It is our duty to consider, weight and evaluate all the competent evidence tending to prove or refute the essential factual issues and reach our own findings. In doing so, we are not bound by the trial court's findings, but we do accord those findings deference, especially as to the credibility of the witnesses who appeared before the trial court. May v. May, Mo.App., 294 S.W.2d 627; Eikermann v. Eikermann, Mo.App., 283 S.W.2d 391; Clark v. Clark, Mo.App., 306 S.W.2d 641, 646.
Plaintiff, Donna Mae Derringer, was granted an absolute divorce from Edward Lee Derringer on October 16, 1962, by the Circuit Court of Jackson County, Missouri. It was a default decree with personal service on defendant. By this judgment plaintiff was awarded 'the care, custody and control' of the minor child Edward Lee Derringer, Jr., who had been born on November 28, 1960, with defendant having 'the right and privilege of seeing and visiting said minor child at all reasonable times and places'.
On March 29, 1963, defendant filed his motion for modification, praying that the mother be divested of the 'care, custody and control' of the child and that same be awarded to the defendant father. A hearing was held on June 24, 1963, and on the same date the court entered its judgment modifying the original decree of divorce as follows:
'* * * the care, custody and control of the minor child, Edward L. Derringer, Jr. * * * is hereby given to the defendant, to live with his parents, Daniel and Nelldean Derringer, at 7904 Leeds Road'.
The mother appellant has dully perfected an appeal. She asserts that (1) 'The Court erred * * * with reference to the custody of the minor child because such modification is against the law', and (2) 'The Court erred in modifying the decree because the decree penalizes the minor child * * * for the alleged indiscretions of the plaintiff in violation of the policy of the courts of Missouri * * *'.
Respondent has moved to dismiss the appeal for alleged noncompliance with Rule 83.05(c), V.A.M.R. which requires a 'fair and concise statement of the facts'. We overrule the motion and shall consider the appeal on its merits.
We note that the child Edward, Jr. was not quite two years old when his parents were divorced, was 28 months of age when the motion to modify was filed and 31 months old when the judgment of modification was entered. The law is clear that only matters which have happened since the divorce are competent to sustain a motion to modify. In Hawkins v. Thompson, Mo.App., 210 S.W.2d 747, 752, the court said:
. (Italics added.)
See also Brake v. Brake, Mo.App., 244 S.W.2d 786; Paxton v. Paxton, Mo.App., 319 S.W.2d 280.
We summarize the evidence presented, keeping in mind that there must be a showing of changed conditions since the original decree and never forgetting that the personal welfare of the child is the paramount question to be answered.
Six witnesses were offered for the father movant and respondent here. Mr. Derringer himself testified that he was 24 years of age, had been employed for four years as cashier-bookkeeper for an A & P Food Store, and that he resided with his parents in Kansas City, Missouri. He said his father and mother were respectively, aged 46 and 41 years. He described their home as a 'two-bedroom home, large front room, living room, dining room, kitchen, breezeway, garage and full basement', with himself and his parents the only occupants. Mr. Derringer said that in the latter part of January, 1960, a Mrs. William Wayne Hoover telephoned to him and said that her husband was living with Donna (Mrs. Derringer) at 1928 Norton Street, Independence, Missouri. There was no objection to this testimony. On January 31, Mr. Derringer said he . He said her apartment was a one-room kitchenette, with private bath, and a divan which was convertible into a bed. It was Mr. Derringer's testimony that on the following Saturday night, his folks were called to go to his former wife's apartment, having been advised that she had tried to commit suicide. It seems that Mrs. Derringer had taken tranquilizer pills and kept calling for William Wayne Hoover.
About January 24, Mrs. Derringer moved to 24th and Hardesty Streets. Mr. Hoover lived at or near the same address. Derringer went there one day to 'pick up the boy' and Hoover came out and told him to leave. On another occasion Hoover called Derringer at his place of work and told him if 'I didn't leave her alone he would stomp me good'. Derringer said Hoover's car was parked near Mrs. Derringer's apartment night after night.
Mary Lou Koch, former wife of Mr. Hoover, said her husband brought home a letter written by Mrs. Derringer saying she was going to commit suicide if 'she couldn't have Wayne'.
Mrs. Alice Riggins, owner of the Norton Street property, testified that she usually left for work at about 6:00 or 6:30 a. m. and on occasions had seen Hoover's car parked there when she left for work.
Mr. William Shinn resided at the Norton Street address when Mrs. Derringer lived there. He saw Mr. Hoover there on numerous occasions at various hours of the...
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