Foster v. Foster
| Decision Date | 02 December 1940 |
| Docket Number | No. 19695.,19695. |
| Citation | 146 S.W.2d 849 |
| Parties | FOSTER v. FOSTER. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Cole County; Nike G. Sevier, Judge.
"Not to be published in State Reports".
Action by Vesta Foster against Thomas M. Foster involving the custody of a minor child of the parties. From the decree, plaintiff appeals.
Affirmed.
W. C. Irwin and H. P. Lauf, both of Jefferson City, for appellant.
Elliott M. Dampf, of Jefferson City, and D. E. Kennedy, of Sedalia, for respondent.
This action involves the custody of Norella Foster, the minor female child of the parties hereto, who was two years and one month of age at the time of the trial.
The facts show that on February 10, 1939, a decree of divorce was granted to the plaintiff from her husband and the custody of the child born of the wedlock was awarded to her until September 1, 1939, the defendant to see and visit the child at all reasonable and seasonable times; that commencing September 1, 1939, defendant was to have the custody of the child for 6 months, with the right of visitation to the plaintiff, and commencing March 1, 1940, the care and custody of the child was to alternate between the parties for the period of 6 months at a time. No motion for a new trial was filed.
On April 25, 1939, plaintiff filed a motion to modify and, on September 23, 1939, plaintiff filed an amended motion to modify the decree, praying that the Court grant the custody of the child to the plaintiff, with the privilege given to the defendant to visit the child at all reasonable and seasonable times.
Upon the trial of the cause it was shown and admitted that the plaintiff was a fit and competent person to have the custody of the child. At the conclusion of the trial the court modified the decree by giving plaintiff the custody of the child for eight months in the year and the defendant the custody for four months. Plaintiff has appealed.
Plaintiff insists that the court erred in not sustaining in full her amended motion to modify; that it is well settled in this state that the custody of a female child of tender years will be given the mother, as against the father, when she is shown to be a fit person to have the custody of the child, everything else being equal.
This may be the rule but we are not now dealing with the custody of this child, as an original proposition, but upon a motion to modify the original decree. It is well...
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Wakefield, In re
...Mo. 583, 252 S.W.2d 323, 328. To that extent such a decree is res adjudicata. Shepard v. Shepard, Mo.App., 194 S.W.2d 319; Foster v. Foster, Mo.App., 146 S.W.2d 849; Crooks v. Crooks, Mo.App., 197 S.W.2d 678. The effect of such order may, of course, cease upon the death of one of the partie......
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Shepard v. Shepard
...113 S.W.2d 139; Martin v. Martin, 233 Mo.App. 667, 125 S.W.2d 943; State ex rel. Scott v. Harris, Mo.App., 136 S.W.2d 78; Foster v. Foster, Mo.App., 146 S.W.2d 849; Martin v. Martin, Mo.App., 160 S.W.2d 457; Fernbaugh v. Clark, 236 Mo.App. 1200, 163 S.W.2d 999; Olson v. Olson, Mo.App., 184 ......
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Shepard v. Shepard
... ... 825, 113 S.W.2d 139; Martin v. Martin, 233 ... Mo.App. 667, 125 S.W.2d 943; State ex rel. Scott v ... Harris, Mo.App., 136 S.W.2d 78; Foster v. Foster, ... Mo.App., 146 S.W.2d 849; Martin v. Martin, ... Mo.App., 160 S.W.2d 457; Fernbaugh v. Clark, ... 236 Mo.App. 1200, 163 S.W.2d ... ...
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Landreth v. Landreth
...Mo.App., 284 S.W.2d 72; Lehr v. Lehr, Mo.App., 264 S.W.2d 35, 36(1); Shepard v. Shepard, Mo.App. 194 S.W.2d 319, 323(3); Foster v. Foster, Mo.App., 146 S.W.2d 849], and that authority for modification of a judgment for alimony is dependent upon proof of a subsequent change in conditions. Sc......