Drew v. Drew

• Decision Date: 05 March 1945
• Docket Number: 20536
• Citation: Drew v. Drew, 186 S.W.2d 858 (Kan. App. 1945)
• Parties: DREW v. DREW
• Court: Kansas Court of Appeals

186 S.W.2d 858

DREW v. DREW

No. 20536

Court of Appeals of Missouri, Kansas City

March 5, 1945

'Not to be published in State Reports'.

George D. McIlrath, of Kansas City, for appellant.

Edward S. North, of Kansas City, for respondent.

OPINION

BOYER PER CURIAM

This is an appeal by the father of a boy from an order entered in the Independence Division of the Circuit Court of Jackson County Missouri, modifying a divorce decree in reference to the custody of the child. The case originated July 3, 1942, when the father filed his petition seeking a divorce and custody of the child. The action was entitled 'Charles H. Drew, Jr., Plaintiff, v. Claudine Drew, Defendant.' For convenience, the parties will be referred to as they were designated in the trial court. The defendant wife filed a cross-bill in which she also asked custody of the child. When the case came on for hearing plaintiff dismissed his petition and filed a reply to the cross-petition. Defendant withdrew her motion for alimony and suit money. After hearing the case a decree was entered in favor of defendant dissolving the bonds of matrimony, but the care, custody and control of the child, Charles Herbert Drew, III, was awarded to the paternal grandparents, Charles H. Drew and Madeline S. Drew, under the following circumstances:

The grandparents had executed and acknowledged what is designated 'Submission to the Jurisdiction of the Court' which was filed prior to the hearing of the divorce case, in which it is recited that they were the parents of Charles H. Drew, Jr., and the grandparents of Charles Herbert Drew, III, the child of Charles H. Drew, Jr., and Claudine Drew, his wife; that said child was then in their custody, having been left with them by his parents during the Christmans holidays of 1941; that they had been informed that Charles H. Drew, Jr., had filed an action for divorce against Claudine Drew in the Circuit Court of Jackson County at Independence and that said Claudine Drew had filed an answer and cross-bill, and that each of said parties had requested the custody of their child; that at the present time neither of said parents had a home adequate for the proper maintenance and care of their said child and that it had been suggested that the court might find it advisable and be willing to enter an order in said divorce action awarding the custody of the child to the undersigned until further order of the court, provided the undersigned would submit themselves to the jurisdiction of said court and would agree to comply with any future order directed at them relating to the care or custody of said child; that both parties to said divorce action agreed that such an order made under such circumstances would be a solution of their child's situation, temporarily agreeable to them, and would avoid a contest at the time over the custody of the child. And said writing concludes as follows: 'Accordingly, the undersigned and each of them hereby submit themselves to the jurisdiction of said court, in so far as their right to the custody of said Charles Herbert Drew III is concerned, and they agree; that for the present it will be satisfactory to the undersigned that the custody of said child be continued in the undersigned; that if at any time said court should make an order directing that some person or persons, other than the undersigned, should have the custody of said child, either temporarily or permanently, the undersigned will conform to and observe such order or orders, with the understanding that the undersigned shall not be charged with the duty or expense of making delivery of said child outside the county of the residence of the undersigned.'

The decree in the divorce case refers to the filing of such submission to the jurisdiction of the court by the grandparents preceding the order awarding them custody of the child.

The divorce decree was entered July 31, 1942. On November 8, 1943, defendant filed her motion to modify the decree in reference to the custody of the child and to award said care and custody to her. The motion recited the facts in reference to the decree of divorce and the awarding of custody of the child to the grandparents who resided in Cranston, Rhode Island, and that at the time of said decree defendant's son was and ever since had been living with his grandparents at said place and that prior to entry of said decree the grandparents submitted themselves to the jurisdiction of the court and agreed that if at any time the court would make an order changing the custody of the child they would conform to and submit to such order. The basis upon which the modification of the decree was sought was stated as follows: 'That at the time of the entering of said decree, defendant had no established home, but was living in a boarding house while working for a living; that since that time, to-wit on or about October 1, 1943, plaintiff acquired and now owns a home of her own in Kansas City, Missouri; that defendant is employed at a substantial salary, and is able to maintain herself in said new home; that her father, Claud O. Sorrell, and his wife are making their home with her and Mrs. Claud O. Sorrell has agreed that, if the custody of defendant's said son is awarded to defendant, she, said Mrs. Claud O. Sorrell will give said child the necessary care and attention while defendant is at work; that plaintiff also lives in Kansas City, Missouri, and the changing of the custody of said child to defendant, and the change of the residence of said child to Kansas City, Missouri, will afford said child both the care of his mother, and the opportunity to enjoy the love and affection of both his mother and father; that the aforesaid change of custody will be to the benefit of the child.'

Defendant prayed the court to set aside, vacate or modify the decree in so far as it awarded the custody of the child to his grandparents, and to award custody of her son to her with provision for visitation by the plaintiff, and for an order upon plaintiff for the maintenance of said child.

At the time the aforesaid motion was filed the judge who had heard the divorce case had been succeeded by another and the motion was heard by the new judge who had not heard the evidence in the divorce proceeding. After hearing the evidence the court took the case under advisement and finally, on December 11, 1943, entered an order finding that the custody of the minor child of the parties should be awarded to the defendant and that plaintiff should contribute to the support of the child. It was therefore ordered that the motion is sustained, the decree theretofore entered was modified so that defendant, Claudine Drew, be awarded the care, custody and control of said minor child; that plaintiff should have the right of visitation and should contribute $ 50 a month to the defendant for the support and maintenance of the child.

From this order and judgment the plaintiff, after due and proper proceeding, applied for and was granted an appeal to this court, and raises questions pertaining to the jurisdiction of the court and complains of the exclusion of evidence offered by plaintiff in reference to the fitness of defendant to be awarded custody of the child, and that the evidence offered in the case does not justify a change in the custody of the child on the basis of its best interest and welfare. It appears that a rather comprehensive review of the evidence and the proceeding in the trial court is called for.

Plaintiff and defendant were married June 10, 1939. The child whose custody is now in question was born May 4, 1940. Defendant was reared in the home of her father, Claud O. Sorrell, at Kirksville, Missouri. Defendant testified she was thirteen years of age when her mother died and her father remarried six or seven years ago; that at the time of the divorce decree she was not working and that the child was with plaintiff's parents in Rhode Island, and had been with them about six months. In answer to the question how the child happened to be at the home of the grandparents, she said: 'Dr. Drew was just starting out in practice and we didn't want to take the baby to the city because we didn't know what we were getting into.' He had just finished his course in the Osteopathic School at Kirksville Missouri; that they went to visit the child's grandparents in Rhode Island during the Christmas holidays and it was left there until her husband could be established and be able to support the child; that her father's permanent home is at Kirksville; that she had a brother who had gone to California and was in a technical school preparing for service in the air force; that her father and his present wife had gone to California to be with her brother during his school period and shortly after the divorce she also went to California; that she went out to stay with them and went to work in an airplane factry and was in California about six months; that she lived with her father part of the time and later shared an apartment with other women. After her visit to California, defendant returned to Kansas City in March, 1943, where she obtained employment with T. W. A. and at the time of the hearing on her motion she was earning $ 150 a month. She went to live in an apartment where some of her former school chums in Kirksville were living; she remained with them for awhile and then moved to a boarding house. She says she moved because they were crowded and she wanted to find a place to put the baby if she could get him; that she had recently purchased a home where she is now living at 4343 Holmes Street, Kansas City, Missouri, that the money to purchase the home in the sum of $ 4000 was furnished by her father and that she gave her father a mortgage for $ 3500, payable $...