Endicott v. Endicott, 24900
| Decision Date | 02 December 1968 |
| Docket Number | No. 24900,24900 |
| Citation | 435 S.W.2d 388 |
| Parties | Ella M. ENDICOTT, Appellant, v. Jerry L. ENDICOTT, Respondent. |
| Court | Missouri Court of Appeals |
Roger J.Barbieri, Kansas City, for appellant.
Wilbur L. Pollard, North Kansas City, for respondent.
MAUGHMER, Commissioner.
The plaintiff-mother appeals from an order modifying the divorce decree and giving the defendant-father custody of their 15 months' old son. These parents, Ella M. Endicott and Jerry L. Endicott, were married on June 7, 1964, and separated about August 6, 1966. On August 11, 1966, Mrs. Endicott, as plaintiff filed suit for divorce. The defendant filed an answer and cross bill, which he dismissed on January 26, 1967, and on that date plaintiff was granted a divorce. Custody of the minor child, Gregory L. Endicott, then ten months of age, was divided--six months to the mother and six months to the father. As child support, the father was directed to pay $15 per week for three months and $17.50 per week thereafter while the child was with the mother.
On March 31, 1967, (63 days after the divorce) the defendant filed a motion to modify, therein alleging that the health and well-being of the child would be best served if full custody were awarded to him. After hearing testimony and arguments, the court, on May 11, 1967, denied the motion.
On May 29, 1967, (123 days after entry of the divorce decree and 18 days after denial of the first motion) defendant filed a second motion to modify. Therein he alleged that plaintiff and her then husband, Joseph Pasacarella, whom she had married on May 3, 1967, had 'severely beaten, bruised and injured' the child, had demonstrated a 'complete lack of love and affection' for him and a disregard for his health and well-being. Testimony was taken on June 14, 1967, and on that same date the court sustained the motion to modify, and awarded custody of the minor child Gregory, who was then 15 months old, to the father. The mother was privileged to have Gregory with her from 9:00 a.m. to 3:00 p.m. on each Sunday.
On appeal and under her 'Points and Authorities' plaintiff lists two as follows: 1. 'In a proceeding to modify a divorce decree, movant may be successful only upon proof of new facts since last hearing' and 2, 'In contests for custody of a child, age of child should be considered, and if all else be equal the child should be given into the custody of the mother.' Each of these declarations is a statement of legal principle and not an assignment of error. However, we shall assume appellant intended to assert noncompliance with these legal principles and we shall review the case on the merits.
The transcript before us includes the testimony taken at both hearings which were held on the motions to modify. Plaintiff says the judgment denying the first motion, which was entered on May 11, 1967, is res judicata, and therefore the evidence received on the second motion must be restricted to occurrences and happenings after May 11, 1967.
In child custody cases the welfare of the child is the guiding light. Armstrong v. Armstrong, Mo.App., 185 S.W.2d 845, 847; Lewis v. Lewis, Mo.App., 301 S.W.2d 861, 863; Garbee v. Tyree, Mo.App., 400 S.W.2d 193, 197. When the custody of a minor child is fixed in a divorce decree there can be no change made respecting custody except upon a showing of changed conditions since entry of the decree, Lewis v. Lewis, supra, or upon material facts existing at the time but unknown to or concealed from the court, but then only for the welfare of the child. 27B C.J.S. Divorce, § 317(2)b, page 542; Armstrong v. Armstrong, supra; In re Wakefield, 365 Mo. 415, 283 S.W.2d 467, 473. We believe that evidence concerning treatment of the child prior to the hearing on the first motion to modify may be considered at the hearing on the second motion, providing such evidence was not revealed to the court or known by the innocent party at the time of the first hearing.
The defendant testified that he was employed as a mechanic at TWA with earnings of about $650 per month and that his mother (age 59 years) and his father would, if he were given custody of the child, move into and live in his home and care for the child while he was at work. These grandparents had taken care of Gregory for several months from the date of the parents' separation until the divorce was granted. Mr. Endicott said that on a Sunday late in May, 1967, he, accompanied by his parents, went to the home of plaintiff and her present husband to get his son; that his son and Mr. Pascarella came to the door; that 'little Greg started to reach out to get me and Joe grabbed him by the shoulder and hauls him back in the house and they wanted me to pay them $70 before I could have him.' Defendant said he had brought $30 with him for payment of two weeks' support. He finally gave them $50 and was allowed to take the boy. It was defendant's testimony, however, that before he was able to get the child, Mr. Pascarella had called him vile names, asked him to 'around back of the house' and threatened him with bodily harm. Defendant gave this...
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...the welfare of the children, which is always our primary concern. Mondy v. Rasch, Mo.App., 437 S.W.2d 698, 702(1); Endicott v. Endicott, Mo.App., 435 S.W.2d 388, 390(1). There is no disputing defendant's claim that courts have the authority to enforce custody decrees through contempt procee......
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...at 1095.) Other courts have adopted the same rule. See, e. g., Gantner v. Gantner, 39 Cal.2d 272, 246 P.2d 923 (1952); Endicott v. Endicott, Mo., 435 S.W.2d 388 (1968); Youngberg v. Youngberg, 193 Neb. 394, 227 N.W.2d 396 (1975); Gibbons v. Gibbons, Okl., 442 P.2d 482 (1968). We hold it was......
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...but unknown to or concealed from the court. In re Wakefield, 365 Mo. 415, 283 S.W.2d 467, 473(14) (banc 1955); Endicott v. Endicott, 435 S.W.2d 388, 390(2) (Mo.App.1968). The reason for not going into matters which occurred prior to a previous decree is they have been merged into that decre......
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