Gianformaggio v. Gianformaggio
| Decision Date | 20 December 1960 |
| Docket Number | Nos. 30622,30623,s. 30622 |
| Citation | 341 S.W.2d 293 |
| Parties | Ruth GIANFORMAGGIO (Plaintiff), Appellant, v. John GIANFORMAGGIO (Defendant), Respondent. |
| Court | Missouri Court of Appeals |
Milton F. Napier, St. Louis, for appellant.
Champ C. Stonebraker, St. Louis, for respondent.
This is an appeal by the mother of two minor children from an order of the trial court which modified a divorce decree with respect to the custody of the two children, and increased the amount of the allowance for their maintenance and support. Appellant is Ruth Gianformaggio, who was plaintiff in the divorce proceedings. Respondent is her former husband, John Gianformaggio.
The original decree of divorce was rendered March 1, 1955. By that decree the plaintiff, Ruth Gainformaggio, was granted a divorce from her husband, together with custody of the minor children of the parties, Joy Anne, born July 7, 1945, and Anita Ruth, born November 19, 1948. An allowance of $10 a week was made for the support and maintenance of each child. The decree further provided that respondent should have temporary custody of said children on the first Saturday of each month from 1:00 p. m. to 5:00 p. m. and the first Sunday of each month from 10:30 a. m. to 8:00 p. m.
On January 12, 1960, appellant here filed her motion to modify the decree by allowing her $25 per week for each child, instead of $10 per week, as allowed in the original decree. Her motion also prayed for an allowance of an attorney's fee.
On February 27, 1960, the respondent also filed a motion to modify the decree. In said motion it was alleged as grounds therefor:
'2. * * * that Joy Anne, born July 7, 1945, if (is) 14 1/2 years of age and Anita Ruth, born November 19, 1948 is now eleven years of age and these children are well able to be away from their mother for a considerable period of time, and the defendant is desirous of spending more time with his daughters.
The prayer of respondent's motion was that he be given temporary custody of the children on alternate week-ends from 5:30 p. m. on Saturday until 8:00 p. m. Sunday, and for such further relief as the court should deem meet, just and proper.
Both motions came on for hearing on March 15, 1960, and both were by the court sustained. The decree provided that respondent should pay to appellant the sum of $20 per week for the support and maintenance of each of said minor children. Appellant was allowed the sum of $150 as and for an attorney's fee. Respondent was awarded the temporary custody of both children on the second and fourth weekends of each month from 10:00 a. m. Saturday until 8:00 p. m. Sunday. Respondent was further allowed temporary custody for one week during the summer vacation period.
Appellant's first complaint is that the court erred in failing to limit its judgment to the relief sought in respondent's motion. In this connection appellant points to the fact that respondent in his motion asked for temporary custody on alternate weekends from 5:30 p. m. Saturday to 8:00 p. m. Sunday, whereas the court awarded custody on the second and fourth weekends of each and every month from 10:00 a. m. Saturday until 8:00 p. m. Sunday, and for one week during the summer vacation periods. Under this state of facts appellant says the order is void because the court was without jurisdiction to grant respondent greater privileges than he had asked for in his motion.
In proceedings of this character, involving the welfare of minor children, technical rules of objection of the kind here urged, should not be given serious consideration, unless the motion upon which the action is based contains no averments reasonably sufficient to invoke the jurisdiction of the court. Sanders v. Sanders, 223 Mo.App. 834, 14 S.W.2d 458. And where an issue of custody has been actually submitted to the court by the parties, the court may award custody or change visitation rights even though no request has been made therefor by petition or motion, where the best interest of the child or children requires such action. McCoy v. Briegel, Mo.App., 305 S.W.2d 29; S_____ v. G_____, Mo.App., 298 S.W.2d 67, loc. cit. 74. The governing rule is stated by the court in the last cited case as follows:
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