Garvey v. Garvey

• Decision Date: 02 October 1950
• Docket Number: No. 21410,21410
• Parties: GARVEY v. GARVEY.
• Court: Missouri Court of Appeals

Page 48

233 S.W.2d 48

GARVEY v. GARVEY.

No. 21410.

Kansas City Court of Appeals, Missouri.

Oct. 2, 1950.

Ellis Beavers, Joe Beavers, Grant City, for appellant.

Joseph M. Garvey, St. Joseph, for respondent.

CAVE, Judge.

This is an appeal by plaintiff, Jean Garvey, from an order overruling her motion to modify a divorce decree which awarded her the custody of her infant child Nancy. The motion sought permission to take the child out of the State of Missouri.

Plaintiff and defendant were married November 30, 1946, and separated May 4, 1949, and plaintiff filed a petition for divorce on May 11 of the same year; Nancy was then five weeks old. On July 29 plaintiff was granted a divorce and awarded the custody of Nancy and the defendant was required to pay the sum of $40 a month for the support of the child and $10 a month by way of alimony; the decree also provided that the defendant should have the right to visit the child on all proper occasions and to have its custody from seven o'clock to nine o'clock two evenings each week and on Sundays from two o'clock to six o'clock p. m.

On August 30 defendant had plaintiff cited for contempt for failure to comply with the provisions of the decree granting him the privilege of visitation and the custody of the child at certain hours. After a hearing the court found plaintiff guilty of contempt but deferred sentence. Pending the contempt proceedings plaintiff and defendant each filed a motion to modify the decree concerning the custody of the child. Plaintiff's motion sought to restrict defendant's right to take their child from her home to once a week, on Sunday afternoon; defendant's motion requested the court to designate Tuesday and Thursday nights of each week as the nights of visitation. Plaintiff's motion was overruled and defendant's motion was sustained and the court modified the decree so that the defendant could have the right of visitation on Tuesday and Thursday nights of each week between the hours of seven and nine, and to have the custody of the child on Sunday afternoon between the hours of two and six. There was no appeal from this order. On November 10, 1949, plaintiff filed the motion now under consideration.

At the conclusion of the evidence the court made certain findings which are so abundantly supported by the evidence and the law, that we copy such findings:

'This application is by plaintiff for permission to take the minor child of plaintiff and defendant from the State of Missouri.

'The removal of the child from the state will not be denied if the best interests of the child would be served thereby.

'In this case, the mother (petitioner herein) is living with her mother who is receiving $125 per month salary, plus some other payment by way of annuities. Plaintiff receives the sum of $40 per month for support of the child and $10 per month alimony from the defendant ex-husband.

'Plaintiff requests permission to remove the child from this state because of proffered employment in Waterloo, Iowa, and Peoria, Illinois. The distance from St. Joseph to Waterloo is reckoned as approximately 260 miles. The distance from St. Joseph to Peoria would be considerably more.

'Plaintiff is shown to be a competent secretary and office supervisor and is offered such position in other states.

'She states she was referred by an employment agency to two positions here which would have paid approximately $125 to $140 per month but that she did not interview the prospective employers and that she was not ready to go to work at that time.

'Mr. Glenn, of the Platt-Gard College testified that there were numerous vacancies (in St. Joseph, Missouri,) for employees qualified as plaintiff is, and that salaries for such positions would range approximately from $175 to $200 per month; also that there were vacancies for secretaries with salaries ranging approximately from $135 to $150 per month.

'Plaintiff states that in Waterloo, Iowa, she could obtain employment at about $51 per week.

'The sole question is whether or not the best interests of the minor child will be served by permitting the plaintiff to remove it from the State of Missouri. This would not be a temporary removal as were the facts in some of the cases cited, but for all practical purposes it would be a permanent removal.

'Under the order of the Court now, the defendant is permitted to have the child three times per week. If the child is taken to either Waterloo, Iowa, or Peoria, Illinois, it will, of course, be impractical for the plaintiff to return said child to St. Joseph for these visitations by the child's father, or for the father to visit the child.

'The defendant offers to take the child into the home of his parents (which he states is with the full consent of his mother) during the daytime and care for said child and return it to the mother each evening when she quits work if she takes employment in St. Joseph. If the plaintiff takes the child to another state it will either be necessary for the mother, with whom plaintiff resides, to cease her employment to look after the child or for someone to be employed to care for the child during the time the plaintiff and her mother are at their employment.

'It may be that plaintiff would obtain more remunerative employment in Waterloo or Peoria. However, from the testimony of Mr. Glenn, it would appear that the difference between the amount which could be obtained in St. Joseph would be very small.

'While the Courts recognize that a small child should be with its mother as much as possible, yet if the mother obtains employment either in...