Foster v. Foster

• Decision Date: 02 April 1957
• Docket Number: No. 29725,29725
• Citation: 300 S.W.2d 857
• Parties: Jane F. FOSTER (Plaintiff), Appellant, v. Charles Harry FOSTER (Defendant), Respondent.
• Court: Missouri Court of Appeals

Page 857

300 S.W.2d 857

Jane F. FOSTER (Plaintiff), Appellant, v. Charles Harry FOSTER (Defendant), Respondent.

No. 29725.

St. Louis Court of Appeals, Missouri.

April 2, 1957.

Motion for Rehearing or to Transfer to Supreme Court Denied

May 3, 1957.

Kenneth Teasdale, Henry C. M. Lamkin, Cobbs, Armstrong, Teasdale & Roos, J. L. London, St. Louis William M. Tannenbaum and Julius A. Polikoff, Chicago, Ill., of counsel, for appellant.

Coburn & Croft, Richmond C. Coburn, William B. Eldridge, St. Louis, for respondent.

ANDERSON, Judge.

This is an appeal by plaintiff, Jane F. Foster, from an order of the circuit court denying her motion to terminate temporary custody of the minor child of the parties, given to defendant, Charles Harry Foster, by an order entered July 8, 1955, and sustaining defendant's cross-motion for permanent custody of said child.

On July 13, 1952, plaintiff was granted a divorce and, by said decree, given the custody of their 5 1/2 year old son Charles Harry Foster, Jr., The decree further provided that the defendant have temporary custody of said child, and have the right to visit said child as per stipulation filed. The stipulation provided that defendant 'shall have the right to visit the child at all reasonable and proper times, and also have the right to temporary custody of the child at all reasonable and proper times.'

On June 18, 1954, defendant filed a motion to modify and clarify the decree with respect to visitation and custody. Defendant was prompted to do this on account of frequent disputes and disagreements between the parties when he attempted to exercise his right of visitation and custody. Defendant testified that 'every visit was tempered with the possibility that the door may not be open. * * * She told me her mother was getting active in this, her mother didn't want me to see the child at all. * * * Mrs. Foster told me that history was repeating itself--her mother didn't allow her to see her father and she wasn't going to allow me to see this child. She didn't see her father during her adolescence from the time she was eight until she was twenty-three or four, and she was afraid this was happening to her.'

However, in spite of her reluctance to permit defendant to have temporary custody, plaintiff did agree, in March, 1954 that defendant might take the child on a two weeks' vacation trip beginning June 15, 1954. Defendant made preparations for the trip by securing hotel reservations and arranging for transportation. Then, on June 15, defendant called for the boy at the residence of plaintiff's mother. No one answered the door. Later in the evening, in a telephone conversation, according to defendant's testimony, plaintiff told defendant she did not want him to take the boy 'because she had dreamed and could foresee the future that we were going to have an airplane crash and we would die.' It was after this episode that defendant filed his motion to modify the decree. This motion was continued, and while it was pending the father was given temporary custody for a 10-day period in September, 1954. On November 18, 1954, the matter came on for hearing, at which time the motion was sustained and the decree was modified by setting out in detail the times and periods of visitation and temporary custody, including a provision for custody in defendant from June 15th to July 1st in each year. The foregoing modification was by consent of the parties.

During 1954, until Thanksgiving Day, plaintiff resided at 2 Glen Creek Lane, in Ladue. In the fall of 1954 Charles, Jr. went to the Conway School in Ladue. He was in the second grade. He attended regularly until the 18th and 19th of October, when he was absent. He returned to school, but was absent again on October 25, 26, 27, 28 and 29. He returned to school after these absences, but beginning on November 9 he was absent every day until his mother brought him to school on December 3.

Plaintiff testified that the child was uncomfortable at the Conway School; that he complained to her that he was mistreated and was having trouble with the other children; and that he would come home in tears. She further stated that while she was ill it was necessary for the maid to dress the child and walk to school with him, because he was so disturbed she would not let him go alone. She further testified that although he bathed daily, he was accused of uncleanliness. On December 3rd plaintiff took the boy back to school, but after lunch he started to cry and said he did not want to go back because they poked at him, singled him out from the other children, examined him and made aspersions about him. The child was not returned to the Conway School after December 3rd.

Plaintiff testified that thereafter she tried to enroll the child in other schools. She went to and inquired at the Community School, but there was no room for him there. She then took the child to the Glen Ridge School and explained the situation to the principal. The latter, in the presence of the child, referred to him as a 'problem child,' whereupon the child burst into tears. He was not entered at the school. She took him to Principia, but could not enter him there because she was not a member of the Christian Science Church.

Mrs. Foster did not tell the defendant that the boy had dropped out of school. She stated: 'The boy, I am sure informed him. I have had very few conversations with Mr. Foster. * * * I assumed he knew what the boy was doing because he was seeing him regularly, even when the boy wasn't able to go out.' The defendant first learned that the boy was not in school about December 1, 1954. He called Mrs. Foster about the matter. In this conversation plaintiff said she was going to reinstate the boy in a day or two. The defendant kept in touch with the situation, and when she failed to reinstate the boy in school he called his attorney. After that a conference was had in Judge Weinstein's chambers where the subject of the child not going to school was discussed at great length. This conference was in January, 1955. The attorneys for both parties, and Judge Weinstein, were present. The result of the conference was that Judge Weinstein informally ordered that the child be sent to the Taylor School.

Plaintiff then placed the child in the Taylor School. Dr. Taylor tested him, felt that he was bright and put him in the third grade, with the understanding that plaintiff would help him at home with his studies. The child attended the Taylor School for a week or ten days, then refused to continue further.

Defendant testified that he called Mr. Thies, plaintiff's attorney, and told him that if the boy was not going to school he ought to be tutored. Shortly thereafter he learned that Mr. Thies had procured a tutor for the child. The tutor employed was a Miss Meyer who was employed by the Clayton school system to help children in their work. She tutored the boy from March until the close of the school year. She spent from one to two hours with the boy, and came to the home at such times as best suited her. Plaintiff testified the tutor did a 'wonderful job'; and that she herself helped him with his lessons.

On February 4, 1955, plaintiff filed a motion for permission to take the child from the state for the balance of the school year. In said motion it was alleged that plaintiff had not since the divorce had a vacation where she would be free from the prescribed commitments as to weekly availability with respect to the child; that she and her son had been under constant restraint, with the result that both she and her son had become apprehensive to the point that their lives moved in a state of constant unrest; these conditions 'obtaining by reason of the steadfast expression of dissatisfaction on whatever moves, whatever actions, whatever schools the plaintiff elected upon or the son subscribed to.' It was then alleged that it would be to the interest of the plaintiff and the child to be free for a reasonable time from the consistent pressure that had been exerted; that the schooling of the child had been interrupted for one reason or another in three different schools so that a change to an additional school would not provide an unusual or unreasonable circumstance; that the court had ordered an investigation which might alter or change the future custody of said child, and during the period of investigation it would be well to permit plaintiff and the child to have a chance to compose themselves and be free from continual and constant duress, admonition and warnings by defendant, so that after the court should examine into the matter the child would be in a sufficiently composed state of mind to enter into such program of education, custody and control as the court might order. The prayer of the motion was that plaintiff be given authority to take a vacation away from the city and state for the balance of the school year, conditioned upon the child being placed in a school of acceptable standards during the balance of the school year, and that defendant be ordered to not molest, interfere or place any restraint upon either plaintiff or the child, unless for good cause shown to the court.

No action appears to have been taken on the foregoing motion.

On February 8, 1955, defendant filed a motion to modify the decree and award him the custody of the child. The grounds of said motion, among others, were that the child was not in attendance at school, and that plaintiff, due to her condition of health, was not a proper custodian of said child.

On February 11, 1955, the court entered an order that the child 'remain in the custody of the plaintiff and that he be entered in the Taylor School in Clayton, Missouri, on Monday, 2-14-55, subject to the right of visitation and temporary custody as heretofore ordered.'

On February 26, 1955, pursuant to agreement of counsel, the court ordered defendant to refrain from any interference with plaintiff's right to custody of...