Garbee v. Tyree
Decision Date | 16 February 1966 |
Docket Number | No. 8463,8463 |
Citation | 400 S.W.2d 193 |
Parties | Raymond GARBEE, Plaintiff-Appellant, v. Patricia Ann Garbee TYREE, Defendant-Respondent. |
Court | Missouri Court of Appeals |
Bussell, Hough & Greene, Joe C. Greene, E. Mitchell Hough, Springfield, for plaintiff appellant.
Parker F. Moon, Springfield, for defendant respondent.
This is another insolvable problem presented by an appeal from an order modifying custody of two boys, aged respectively five and three at the time the motion was filed, and a year older when the case was tried on its merits.
In 1962 the father, Raymond Garbee, filed suit for divorce and custody against his wife Patricia. Decree of divorce was granted the wife on her cross-bill, and custody of the two children was split between the mother and father in alternating three-month periods until (in the future) September 1, 1964, after which the father should have custody during the school months and the mother during the summer months, with reasonable rights of visitation in both parties; the father to pay twenty-five dollars per week for support while the children were in the custody of the mother. On November 15, 1963, the mother, Patricia, filed motion to modify as to custody (the contents of this motion will be described in some detail hereafter). Raymond filed answer and cross-motion to modify. The judge who had heard the issues in the divorce case having disqualified, the evidence in this case was heard by special judge, the Honorable H. A. Kelso, on August 8, 1964. Then, on application of the father, the hearing was recessed and continued until October 28, 1964, at which time it was resumed. On December 17, 1964, the court rendered its decree, the substance and effect of which was to reverse the periods of custody so the mother has the children during the school months and the father takes them during the summer months, with additional provisions for visitation and temporary custody during holidays. The father has appealed.
The transcript is replete with repeated objections and arguments of father's counsel. We will consider the technical points raised in the appellant father's brief, but first we must set forth generally the conditions as they existed at the time the divorce was granted as we gather from hither and you in the transcript.
Here we remark that the mother was somewhat restricted in the showing of prior conditions. It is true that the judgment of a court having jurisdiction as to divorce becomes res adjudicata as to divorce; and the award of custody therein made is a conclusive adjudication in respect to the fitness and unfitness of the parents in respect to the over-all conditions then existing. Custody can later be changed only by proof of other further or different circumstances which call for such change. The reliance on the plain record does not always give a true picture of the conditions existing at the time of the original award. Often a number of grounds and a number of incidents are set forth in the pleadings. The trial judge does not usually make a finding of facts, and sometimes, as here, the judge who hears the motion to modify is not the one who heard the original case. Of course (in a motion to modify) the original case (and the facts involved) cannot be retried and rehashed (Derringer v. Derringer, Mo.App., 377 S.W.2d 513, 515) but it often is necessary to permit the showing in a general and limited way of the circumstances and character of the parties as they existed at the time of decree in order to furnish a basis for determining whether there has been a material change affecting the welfare. 1 The original decree of divorce having been granted the mother on her cross-bill, it necessarily follows that she was the innocent and injured party and tht the father was the wrong-doer in some one or more of the matters charged in her cross-bill. McCoy v. Briegel, Mo.App., 305 S.W.2d 29, 35. But that in itself is not the sole criterion in awarding custody. Paxton v. Paxton, Mo.App., 319 S.W.2d 280.
As to the circumstances existing at the time of the original decree: The younger boy had been born what is termed mongoloid. 2 The mother was suffering from a condition which the doctors refer to as a post-partum psychosis--a mental illness which sometimes follows the birth of a child. The father and mother were separated; she was unemployed and without means and was living with her parents in a nearby town. Her father was in the habit of getting on extended drunks and was of limited means. There is little, if any, evidence as to circumstances of the father at the time of the divorce.
One of the appellant father's assignments is error in overruling his motion to dismiss the mother's motion to modify. This motion to modify set forth allegations in respect to her remarriage, the occupation and salary of her present husband, her present living quarters, ability to maintain, support, and educate the children, attendance in church and kindergarten, and the further allegation that she had continued her medical treatment and that her present psychiatric condition was such that she was able to maintain herself at all times.
The basis of the attack is that the motion to modify did not contain any allegations of change of condition rendering 'the principal custodian' unfit. We do not find in the transcript any such motion to dismiss. If there was in fact such a motion, and if the appellant intended to preserve any error because of its overruling, it was his duty to see that it was contained in the record. We do find that at the start of the trial the appellant (verbally) made what he calls a 'renewal' of his motion to dismiss, and after a few pages of argument the court permitted the mother to amend her petition to insert an allegation that the modification would be for the best interests of the children. All this was after the appellant had filed his cross-motion to modify praying for full custody. In this cross-motion he made several allegations in regard to his ability to support and care for the children and concluded with the statement that 'plaintiff has, without exception, demonstrated his stability and ability to care for said children and to see that they are appropriately raised in love and affection and that the defendant has consistently demonstrated to the contrary.' It would seem to us that if the wife's motion dod not put conditions in respect to father's fitness in issue, he himself by answering over and in his own cross-motion made such an issue. See Nunnink v. Nunnik, Mo.App., 257, S.W. 832(4).
It is true that the motion to modify is an independent proceeding and must state a 'claim for relief,' which necessarily involves a change of circumstances bearing on the welfare of the child. Wood v. Wood, Mo.App., 378 S.W.2d 237, 239; Wilton v. Wilton, Mo.App., 235 S.W.2d 418, 419; Olson v. Olson, Mo.App., 184 S.W.2d 768. But a child whose custody must be adjudged is in some respects a ward of the court (McCoy v. Briegel, supra, Mo.App 305 S.W.2d 29, 35), and the public has some interest (S. v. G., supra, Mo.App., 298 S.W.2d 67, 74). For this reason the courts have been inclined toward considerable liberality in construing the pleadings which involve the welfare of a child, and strict technicalities are swept aside (Gianformaggio v. Gianformaggio, Mo.App., 341 S.W.2d 293; Sanders v. Sanders, 223 Mo.App. 834, 14 S.W.2d 458); and the welfare of a child is not to be decided upon any 'legalistic presumption' (In re Shepler, Mo., 372 S.W.2d 87) for the obvious reason that a child should not be permitted to suffer because of the ineptness of one lawyer or the acumen of another. But regardless of the foregoing, we think the change of conditions over-all necessary to state a cause of action is one which calls for a change of custody, and this change of condition can apply to one or both of the parents. In some cases the change of condition is one which primarily affects one parent while that of the other is relatively unchanged. 3
Another of appellant's technical assignments is error in permitting the mother to file an amended petition (motion to modify) and in refusing father's motion to strike the amended motion or the evidence received prior to such amendment.
On September 16, 1964, the mother filed her amended motion to modify in which she elaborated somewhat on her remarriage, the then employment of her present husband, and her home facilities. It then made allegations in respect to the father, the principal of which was that under his custody the children were frequently left with two elderly aunts and deprived of the companionship of the father, that the younger child was retarded, and that there were no adequate shools for such (retarded) children in the father's community; that such child was being treated as a helpless invalid without opportunity to advance. It then added charges against the husband such as profanity, excessive use of intoxicating liquor, uncontrollable temper, and some abuse of the children. The father's motion to strike charged that such amended pleading interjected issues not theretofore presented and at variance with evidence already adduced, that the new petition interjected elements which were defectively absent in the first motion, that the father was surprised by the new matter, and that the father's right to appeal was jeopardized by the amendment. Trial was not resumed until October 28th, over a month after the filing. If the appellant was surprised, he had considerable time to recover from that surprise. As we have stated, the father by his own cross-motion had already put his fitness in issue.
The mother's husband had changed employment (due to the general severance of brakemen by all railroads) since the filing of the first motion. This had necessitated a change of work location and address, and the change was pleaded (see Supreme Court Rule 55.55). She had also testified as to the adverse...
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