Edwards v. Engledorf
| Decision Date | 16 January 1946 |
| Docket Number | No. 6585.,6585. |
| Citation | 192 S.W.2d 31 |
| Parties | EDWARDS v. ENGLEDORF. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Lawrence County; Emory E. Smith, Judge.
"Not to be published in State Reports".
Proceeding on motion by Efton Edwards to modify a divorce awarding custody of Willie Clifford Edwards, a minor, to his mother, since deceased. From a judgment awarding custody of the child to Mrs. A. A. Engledorf, Efton Edwards appeals.
Judgment reversed and cause remanded with directions.
See, also, 180 S.W.2d 603.
H. A. Gardner, of Monett, for petitioner.
Emery C. Medlin, of Monett, for respondent.
This is an action based upon a motion by petitioner to modify a former decree in which the custody of Willie Clifford Edwards, a minor, was awarded to Helen Edwards, his mother, now deceased. Petitioner now asks custody of the child. Defendant filed her answer alleging in substance that petitioner is an unfit person to have the custody of the child. Upon a hearing the trial court awarded the custody of said child to the defendant and rendered its judgment accordingly. From this judgment petitioner duly appeals.
The evidence shows that petitioner and Helen Edwards, daughter of defendant, Mrs. A. A. Engledorf, were at one time husband and wife and that there were two children born of this marriage: James Lee, born December 14, 1930, and Willie Clifford, born December 30, 1933. On May 26, 1937, in a divorce proceeding instituted by petitioner against his wife, Helen, a divorce was granted to the wife on her cross-bill and the care and custody of Willie Clifford awarded her. The custody of James Lee was awarded to the father, the petitioner herein and with whom the child has resided since that time. At the time of the divorce Helen and her two boys resided at the home of her parents. Helen's father, A. A. Engledorf, subsequently died and following his death Helen died in May 1943, and since then Willie Clifford has resided with his maternal grandmother, the defendant herein.
Both petitioner and defendant live near Verona, Lawrence County, approximately three miles apart. The evidence shows that the grandmother has discouraged visitation and social intercourse between petitioner's sons, Willie Clifford and James Lee; that she has refused to permit the father to visit Willie Clifford or come on the place because of the fact, as she says, that the father used profane language in his presence. The evidence on the part of defendant shows that petitioner never contributed anything to the support of the child from the time it was brought to her home. On the other hand the petitioner testifies that the Engledorfs refused to permit him to contribute to the support of the child from the time it went into the home until the present time. It is further shown that petitioner is a cripple, possessed of little property, but is of good character, industrious, a hard worker and honest; that he rents and maintains a home, about the average of the community, consisting of three rooms in which he and James Lee live and at times the father of petitioner lives with them. It is also shown that Mrs. Engledorf, the defendant, is a good woman of splendid character. She owns ten acres of land upon which is located a good six-room house in which only she and Willie Clifford live. James Lee, who has lived with his father since the granting of the divorce, now 13 years of age, is shown to be an intelligent boy, always appearing neat and clean, is well mannered, refined and courteous. He is above average in school which he attends regularly and his teachers spoke of his conduct in general in the highest terms. He also attends church and Sunday school. There are no women living in petitioner's home and neither is there a man living in the home of defendant. Such other evidence as may be deemed necessary will be referred to in the course of the opinion.
The question here presented is whether or not, in the interest of the child, the original decree of the Circuit Court entered at the time the divorce was granted should be modified to the extent of awarding the child to the care and custody of petitioner. In reaching our conclusion we must bear in mind the applicable law and the rules well established by the courts of this state.
Section 375, Article 16, R.S.Mo.1939, Mo.R.S.A., says in part: "In all cases not otherwise provided for by law, the father and mother, with equal powers, rights and duties, while living, and in case of the death of either parent, the survivor, * * * shall be the natural guardian and curator of their children and have the custody and care of their persons, education and estates; * * *."
The presumption is that the best interest of the child is to be in the custody of the parent and in this situation a showing against the parent overcoming such presumption must be made or that there was some special and extraordinary reason why such custody should not be in the father. Weir v. Marley, 99 Mo. 484, 12 S.W. 798, 6 L.R.A. 672; State ex rel. v. Ellison, 271 Mo. 416, 196 S.W. 1140; McDevitt v. Morrison, Mo.App., 180 S.W.2d 608; Abel v. Ingram, 223 Mo.App. 1087, 24 S.W.2d 1048; Ruedlinger v. Ruedlinger, 222 Mo.App. 819, 10 S.W.2d 324; Ex parte Archer, Mo.App. 253 S.W. 1095.
The parents have a right to the custody of their children by nature and by law, which rights should never be denied except for the most cogent reasons, and in case of the death of the mother the father is entitled to the first consideration in passing upon the question of custody as between the father and some outside party or relative. Waters v. Gray, Mo.App., 193 S.W. 33; Abel v. Ingram, supra.
The trial court, in the instant case, did not find that petitioner is an unfit person, but "* * * that the petitioner is incompetent to take charge of this minor child and that some special or extraordinary reason demands at the hands of the court that the care and custody of this child be awarded to the defendant * * *." (Italics ours.) The action of the Court, at the time the divorce was granted, in awarding the custody of James Lee to the petitioner clearly infers that it found petitioner to be a fit person to have such custody and that he was competent to take charge of such minor child at that time. We find nothing in the record in the instant case to show that since that time petitioner has become an unfit person for such custody. Since he was then found to be a fit person to have the custody of James Lee why should he not be awarded the custody of Willie...
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