Garrett v. Garrett

Decision Date11 February 1971
Docket NumberNo. 9033,9033
Citation464 S.W.2d 740
PartiesGlen GARRETT, Plaintiff-Respondent, v. Louise GARRETT, Defendant-Appellant.
CourtMissouri Court of Appeals

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.' 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. Plaintiff said his visits with the children in defendant's house, with one exception, was while 'she was there' and '(o)n most occasions, in the same room,' resulting in 'a strained atmosphere.' Finally, two weeks before the trial, as plaintiff recounted, defendant 'decided that I could see (the children) only on Friday nights and I couldn't see them any other night than that, and only if I gave her a week's notice in advance, and only at her convenience.' Defendant's only denial of this was that she had not imposed a week's notice as a condition for plaintiff seeing the children in her home.

As the reader might suspect, the foregoing is but a sampling of the evidence presented in the cause. Legal opinions in child custody cases are little else than chronicles of human misfortune, and we have no disposition and see no need to rehash the entire testimony of every witness merely to record another woeful and prolix installment to that wearisome serial where adult intolerance triumphs over parental love.

We would be the last to tilt with the platitudes of motherhood penned by dewy-eyed jurists or to deny the soundness of the curial saw that all things being equal, children of tender years should be given into the custody of the mother. Harwell v. Harwell, Mo.App., 355 S.W.2d 137, 143(9). This precept, gutted into most every opinion on the subject, is not based upon any superior right of the mother (Edrington v. Edrington, Ky., 459 S.W.2d 141, 142(1)), for our statute (§ 452.120 RSMo 1969, V.A.M.S.) provides that '(i)n all proceedings * * * in which shall be involved the right to the custody and control of minor children, * * * neither parent as such shall have any right paramount to that of the other parent, but in each case the court shall decide only as the best interests of the child itself may seem to require.' Smith v. Smith, Mo.App., 435 S.W.2d 684, 687(6); Markham v. Markham, Mo.App., 429 S.W.2d 320, 323(7); J_ _ G_ _ W_ _ v. J_ _ L_ _ S_ _, Mo.App., 414 S.W.2d 352, 360(5). The rule giving the mother preferential right to custody, is considerably softened by the realization that 'all things never are exactly equal' (Garbee v. Tyree, Mo.App., 400 S.W.2d 193, 199), and is predicated upon the acts of motherhood--not the fact of motherhood. McPherson v. McPherson, Mo.App., 447 S.W.2d 791, 794(5). Likewise, the rule will yield if the welfare of the children demands it, because this is not a presumption of law but a simple fact of life gleaned from human experience (McCallister v. McCallister, Mo.App., 455 S.W.2d 31, 34(2)), and the courts are not timid in entrusting children into their father's care and custody when their best interests will be served thereby. Hugeback v. Hugeback Mo.App., 444 S.W.2d 23, 28(9); J_ _ G_ _ W_ _ v. J_ _ L_ _ S_ _, supra, 414 S.W.2d at 359--360(4); M_ _ L_ _ v. M_ _ R_ _, Mo.App., 407 S.W.2d 600, 603(5); Jaros v. Jaros, Mo.App., 395

Although we do, it is not necessary to repeat the legal cliches that custody rights are not meted with a design to reward one parent or punish the other (Wood v. Wood, Mo.App., 400 S.W.2d 431, 436(5)), that each child custody case must be judged on its own facts (Leaton v. Leaton, Mo.App., 435 S.W.2d 408, 412(3)), and that parental rights are secondary to determining what will best serve the welfare of...

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14 cases
  • In Re The Marriage Of: Claire Noland-vance
    • United States
    • Missouri Court of Appeals
    • August 23, 2010
    ...Separating older and younger siblings because of mother's alienation of affection towards the father was upheld in Garrett v. Garrett, 464 S.W.2d 740 (Mo.App.1971), the facts of which are remarkably similar to those in this case. In Garrett, mother repeatedly denied father visitation, and b......
  • Lipsey v. Lipsey
    • United States
    • Missouri Court of Appeals
    • February 16, 1971
    ...of minor custody or visitation may constitute a changed condition justifying and requiring modification of the decree. Garrett v. Garrett, Mo.App., 464 S.W.2d 740, 743; P_ _ D_ _ v. C_ _ S_ _, Mo.App., 394 S.W.2d 437, 446(12); Rutstein v. Rutstein, Mo.App., 324 S.W.2d 760, 763(4); Wilson v.......
  • State ex rel. Watts v. Watts
    • United States
    • New York Family Court
    • August 8, 1973
    ...doctrine and out of touch with contemporary thought about child development and male and female stereotypes. In Garrett v. Garrett (464 S.W.2d 740, 742, Mo.App., 1971), the court 'The rule giving the mother preferential right to custody is considerably softened by the realization that 'all ......
  • Ready v. Ready
    • United States
    • Wyoming Supreme Court
    • November 22, 1995
    ...of custody upon the ground of wife's repeated denial of husband's visitation rights not an abuse of discretion); Garrett v. Garrett, 464 S.W.2d 740 (Mo.Ct.App.1971) (interference with visitation is a factor properly considered in determining the welfare of a child, not for punishing, but fo......
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