Garrett v. Garrett, 9033

• Court: Court of Appeal of Missouri (US)
• Citation: 464 S.W.2d 740
• Docket Number: No. 9033,9033
• Parties: Glen GARRETT, Plaintiff-Respondent, v. Louise GARRETT, Defendant-Appellant.
• Decision Date: 11 February 1971

Page 740

464 S.W.2d 740 Glen GARRETT, Plaintiff-Respondent,
v.
Louise GARRETT, Defendant-Appellant. No. 9033. Springfield Court of Appeals, Missouri. Feb. 11, 1971.
Motion for Rehearing or to Transfer to Supreme Court Denied
March 3, 1971.
Application to Transfer Denied April 12, 1971.

Page 741

Almon H. Maus, Monett, for plaintiff-respondent.

O. J. Taylor, Neale, Newman, Bradshaw & Freeman, Springfield, for defendant-appellant.

TITUS, Presiding Judge.

In October 1968 the Circuit Court of Barry County awarded the 32-year-old defendant-wife a divorce on her crossbill and the custody of the four children born of the marriage. The 37-year-old plaintiff-husband was granted reasonable visitation privileges and temporary custody of the children on alternate weekends. When the decree was entered, plaintiff was living in a rural area near Purdy, Missouri, and now resides there; defendant and the children were residing in nearby Butterfield but defendant, as was her known intention at the time of the divorce, soon moved with the children to Springfield where she was enrolled as a college student and is still so engaged. Plaintiff remarried the latter part of March 1969 and in October of that year filed his motion to modify the decree to give him major custody of the children. Defendant countered with a like motion seeking to eliminate plaintiff's weekend custody privileges and to restrict his visitation rights with the children to the City of Springfield. The motions were tried together on March 13, 1970, at which time the children were 14 (a boy), 12 (a girl), 6 (a boy)And 3 (a girl) years of age. The court nisi entered judgment modifying the initial decree in several respects. Of particular concern here in that part of the modifying order which transferred custody of the two younger children to plaintiff. Defendant's after-trial motions were denied and she appealed.

Plaintiff had alternate weekend custody of the children following the October 1968 divorce until June or July of 1969, at which time plaintiff's privileges in this respect were terminated by defendant's own decision. There were 'difficulties all along' with respect to plaintiff's custody and visitation rights. Plaintiff testified there never was a time that he exercised these privileges 'without some unpleasantness' and that defendant 'without exception' would be 'mad' and threaten that plaintiff 'wasn't going to get the kids any more.' Defendant agreed that she had told the plaintiff he had forfeited all his rights to the children, that the children had no father and that plaintiff had no children, but denied, as plaintiff had asserted, that such statements had been made in the presence of the children.

According to the plaintiff, the four children were happy to be with him at first but by Christmas of 1968 his relationship with the two older children 'wasn't as good as it has been. They were so distant.'

Page 742

Defendant vowed the children were upset by plaintiff's visits, that the two older children were 'not at all satisfied with the (temporary custody) arrangement,' that she told 'them they were not compelled' to go with their father and 'never made any attempt' to explain to the children that they should go with the plaintiff. Defendant did not advise the plaintiff when their youngest son suffered a broken shoulder, and stated that she made the decisions concerning the children's schooling and their medical and dental needs without consulting the plaintiff. Shortly before Mother's Day in 1969, plaintiff gave the children some money to assist them in purchasing defendant a gift for the occasion; when defendant became aware of the matter she returned it by mail to the plaintiff. Also, when plaintiff learned that defendant's sister had died he called her and offered to keep the children. Defendant refused the offer and, instead, arranged for them to stay at the home of plaintiff's business partner during this period.

Defendant admitted she 'knew that (she) was not following the decree of the court' in refusing to let the plaintiff have custody of the children on alternate weekends after the summer of 1969. Subsequent to this decision by defendant, plaintiff continued to visit with the children in Springfield on an average of once a week and 'there was an occasion or two' when defendant permitted plaintiff to take the children from the house 'for dinner or to the fair,' but thereafter plaintiff was not allowed to take the children out of the home....