Fordyce v. Fordyce
| Decision Date | 11 September 1951 |
| Docket Number | No. 28150,28150 |
| Citation | 242 S.W.2d 307 |
| Parties | FORDYCE v. FORDYCE. |
| Court | Missouri Court of Appeals |
Harold I. Elbert, Charles M. Spence, St. Louis (Thompson, Mitchell, Thompson & Douglas, St. Louis, of counsel), for appellant.
Fordyce, Mayne, Hartman, Renard & Stribling, St. Louis, for respondent.
HOUSER, Commissioner.
This is a motion to modify a decree of the circuit court rendered in 1944 awarding major custody of Nancy and 'Cam' Fordyce to their father, C. Powell Fordyce. Their mother, now Mrs. Henry B. Hosmer, unsuccessfully sought the modification and now appeals from the judgment overruling her motion to modify.
That motion, filed April 5, 1950, alleges that the parties were married in 1928; divorced in 1940; that the original decree awarded the mother major custody of the two children; that in 1943 after a hearing a decree was entered awarding the father general custody with the right to the mother to have custody in the City or County of St. Louis at stated times during the summer and Christmas season; that on joint petition of the parties the court on June 12, 1944 modified the 1943 decree to allow the mother to remove the children from the State of Missouri during the periods of the summer custody; that the court in 1948 declined to modify the 1944 decree on the motion of the mother; that Nancy and Cam were 9 and 5 years of age in June, 1944, and that Nancy became 15 years of age in January, 1950 and that Cameron will become 12 years of age in August, 1950; 'that the said children have frequently and persistently, especially since the last hearing in this matter in 1948, expressed unhappiness over living with their father and stepmother, and their desire to spend the greater part of their time with defendant and her husband, and that said children have now attained ages which entitle their desires in this regard to great weight with the court'; that the mother and her husband own a home at Concord, Massachusetts, and are well able to provide a home for the children and are desirous of having the children live with them. The mother prayed for general custody.
Bearing in mind that our first and foremost duty is to so rule as to best promote the interests and welfare of the children, we must determine whether the moving party has shown by a preponderance of the credible evidence that there has been such a change of circumstances since the 1944 decree as to require a change in the decree, Shepard v. Shepard, Mo.App., 194 S.W.2d 319, loc. cit. 323; Olson v. Olson, Mo.App., 184 S.W.2d 768, loc. cit. 772; Crooks v. Crooks, Mo.App., 197 S.W.2d 678, loc. cit. 681; Schumm v. Schumm, Mo.App., 223 S.W.2d 122, loc. cit. 126, and whether the welfare of the children requires a change in the provisions for their custody. Schumm v. Schumm, supra; Hensley v. Hensley, Mo.App., 233 S.W.2d 42, loc. cit. 43; Watkins v. Watkins, Mo.App., 230 S.W.2d 778, loc. cit. 783. In making this determination the appellate court must not lightly disturb the judgment of the trial court. Instead we will defer to the trial court unless its judgment is in conflict with a clear preponderance of the evidence and discloses a manifest abuse of judicial discretion. Garvey v. Garvey, Mo.App., 233 S.W.2d 48; Stokes v. Stokes, Mo.App., 222 S.W.2d 108. In that event we should direct the entry of such judgment as we deem proper under the law and the evidence. Watkins v. Watkins, supra.
The position of appellant, simply stated, is that in the Fordyce home there is an absence of affection and a poor home atmosphere in which the children are unhappy, ill-adjusted and do not feel a sense of security; that the relationships between Nancy and Cam, their father, stepmother and half brother have deteriorated and are becoming progressively worse; that Nancy and Cam are old enough and sufficiently mature to form a rational judgment and to exercise an intelligent preference with respect to their custody; that their wishes 'should be given very great weight--if indeed they should not be treated as controlling'; that they strongly wish to spend the major portion of their time in the home of their mother and stepfather, where they are happy and secure and where they find congeniality and contentment, and are welcome. To establish her case the mother, in addition to her own testimony, offered that of the two children, a Dr. Rupe, a deposition by Virginia Ham, and certain documentary evidence. Neither in the 1948 nor in the present hearing did Mr. Hosmer testify, either personally or by way of deposition.
Following the granting of a divorce to Mr. Fordyce in 1940, both parties remarried in 1941. Appellant married Henry B. Hosmer, who is a member of a law firm in Boston, Massachusetts. The Hosmers live near Concord, Massachusetts in a 13-room colonial residence on 190 acres of land which they bought in 1947. Mr. Fordyce married Ruth O'Reilly. Mr. Fordyce is a member of a law firm in the City of St. Louis. The Fordyces live in that city in a family home at 27 Lenox Place. Powell and Ruth Fordyce have one son, Bobby, born in 1943.
Mrs. Hosmer testified that the children are not mentally or emotionally satisfied,--are not happy in their father's home; that they have 'suffered greatly from this prolonged quarrel'; that they will have a growing resentment 'so long as the children are held by their father against their will'; that he is 'the one that is standing in the way of the realization of their wishes'; that both the children wish to come and live with her and have written her many times expressing this desire. She introduced in evidence 8 letters written by Cam to 'Dear Mommie' or 'Dear Mommie and Uncle Henry' between September, 1948 and March, 1950 in which he stated that he missed her and wished he was living with her and Uncle Henry. In one of them he inquired 'When are you going to ask the judge again?' Four of Nancy's letters written during the same period were introduced. One of them, written a few days after the decision in 1948, read Three other letters contained expressions that 'I wish I was there in Concord with you and Uncle Henry' or of similar import.
Mrs. Hosmer expressed her opinion that since 1948 there has been a change of feeling between her children and Bobby; that as a baby and during his preschool days they were 'both crazy about him'--loved him very much--but now that he is growing up to be a person and is asserting himself they have a strong feeling that the Fordyces discriminate against them in the matter of treatment and discipline; that they are strict with them but not strict with Bobby; that they have a well-developed feeling that all conflicts with Bobby are blamed on them. While they formerly spoke of Bobby with love they do not do so now but regard him as a 'spoiled brat' and a 'nuisance'. She asserts that there is a change of circumstance in that Cam is coming into adolescence and that Nancy, maturing, needs intimacy with an older woman whom she loves and trusts; that Nancy does not want to confide in her stepmother, and that she needs her mother. She stated that letters addressed to the children at their home were not being delivered to the children. She suspected that the present Mrs. Fordyce was opening and reading her letters to the children; believed that if she mailed letters to the Lenox Place address the stepmother might not give the letters to the children. Mrs. Hosmer calls the children every two or three weeks by long distance telephone from Concord, Massachusetts, and oftentimes asks them if they have received her letters.
Nancy testified that she told her father that she wanted a change in the custody because 'I wasn't happy in St. Louis and wanted to be with my mother * * * I told him because I didn't love Rudy.' Rudy (nickname for Ruth) is the name by which the present Mrs. Fordyce is known to the children, including her own child. Nancy said that she was happier in Massachusetts with her mother than in St. Louis with her father; that home with her father is like a 'boarding school'. She thinks Rudy would keep letters addressed to Nancy from her mother; that Rudy kept one addressed to Cam. She denied that she consulted Rudy about her problems; said she would not feel free to take up her problems with Rudy--that she was not trustful; said that 'she might laugh at my problems'; that she 'guessed' she loved Rudy but 'I don't think I think too much of Rudy.' Later in her testimony she said she 'dislikes' Mrs. Fordyce. She stated that she hates to invite friends to the home for fear something will happen to make them feel bad; that other mothers are friendly to girl friends visiting in the home. When asked to be specific about her complaint in the home she said 'Well, it is Rudy mainly,' although she stated she was not complaining of Rudy's discipline. She said that she loves her father and that he is a good father; that she has everything in the world she wants 'except I want to live with my mother'; that she would like to come and visit her father 5 weeks in the summer but would rather stay most of the time with her mother--'practically all my time'; that she loves her father less than at the time of the last hearing in this case in 1948. She blames her father for her not being with her mother. She thinks that her father broke a promise he made to her mother to let her live with her mother during the winter time. Appellant testified that an office copy of a letter from respondent was left by Mrs. Hosmer on a dresser, found by Nancy, and read by Nancy with the permission of Mrs. Hosmer. Nancy gained the impression from this letter that such a promise had been made. Although counsel promised to produce the letter it was never introduced in...
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