Graham v. Graham
| Decision Date | 21 May 1968 |
| Docket Number | No. 32981,32981 |
| Parties | Ruth Esther GRAHAM, Plaintiff-Appellant, v. Philip Edward GRAHAM, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
Edward T. Wright and George D. Pittman, Jr., St. Louis, for plaintiff-appellant.
Granville L. Gamblin and Earl L. Davis, St. Ann, for defendant-respondent.
JAMES H. KEET. Jr., Special Judge.
On April 12, 1966 Appellant, mother of Paul Walter Graham (born March 22, 1961), was awarded an uncontested divorce from his father and custody of her said son, on her divorce petition filed February 23, 1966, alleging general indignities which the father generally denied. The decree awarded Respondent temporary custody on alternate Sundays beginning April 17, 1966 from 9:00 A.M. to 6:00 P.M.; on alternate Saturdays beginning April 23, 1966 from 10:00 A.M. to 6:00 P.M.; and two weeks in summer vacation beginning in 1969.
On March 23, 1967 Respondent moved the trial court to modify the decree so as to allow Respondent (1) temporary custody on alternate weekends from Friday after school until 6:00 P.M. the following Sunday and the right on intervening Sundays to take his son to Sunday School and Church and return him to Appellant at 6:00 P.M., and (2) temporary custody for one week during August of 1967 and 1968.
On April 26, 1967 Appellant moved to modify the decree so as to change the temporary custody to every fourth Saturday from 11:00 A.M. to 4:00 P.M. and every fourth Sunday from 9:15 A.M. to 4:00 P.M., and to increase the child support from $35.00 to $50.00 per week. Both motions prayed for general relief.
Trial on both motions was held on May 17, 1967. The record does not reflect the ages of the parties, or except as mentioned in this opinion, any of the circumstances existing at or prior to the divorce. Without detailing the numerous allegations in each motion as to claimed material change of condition since the divorce (on only some of which there is any evidence in the record), we will set out the evidence we have considered on our review de novo.
Respondent's evidence was to the following effect: He had for the last year been living in a well-furnished two-bedroom modern apartment in a nice area, his first permanent residence suitable for Paul since the divorce, when he lived at a farm but planned to find an apartment or buy a house. Respondent's mother, who lives in Iowa, has visited him but he has never left Paul in her charge, having been with Paul 'every minute' while he had his temporary custody. He has taken Paul to the grocery and service station to have the car serviced. They have read and played games together and gone to Respondent's school and its athletic events and to the woods and a farm and to Sunday School and Church and have been in the homes of Respondent's friends (including his attorney, Mr. Gamblin) where Paul has enjoyed playing with the friends' children and grandchildren. Paul has played with the children of one of Respondent's friends, an assistant high school principal, when he brought his family to Respondent's apartment once for Sunday lunch. According to the testimony of this friend, Respondent was looked on as a dignified, sound person with good judgment among his associates at school and others. Respondent wants and has unsuccessfully tried to get progress reports and recommendations on Paul from the school in which Appellant enrolled Paul without consulting with Respondent. When Paul had the chickenpox, Respondent took some candy and dessert to him but Appellant would not let Respondent in and after a few minutes let Paul come to the door and open it a crack and accept the confections. Appellant did not attend church prior to the divorce but now teaches Sunday School at Elliott Unitarian Chapel. Paul has visited Respondent's Iowa relatives at Christmas and other times in St. Louis. The parties had agreed to the custody arrangement provided in the divorce decree that Respondent would have temporary custody for two weeks in the summer when Paul reached the age of eight, and that until then (1969) it would be best for Appellant to have complete custody and Respondent to visit with Paul only in the daytime. Respondent had 'accepted' this arrangement. If granted temporary custody a week in August, Respondent would take Paul to Iowa to visit them and take a camping trip. He has been promoted from teacher to assistant principal at Parkway High School and is prepared to devote his entire time to Paul when he has temporary custody. Appellant and her mother have become 'too possessive,' as shown by Respondent's past experience with his mother-in-law and his frequently seeing her car at Appellant's home when he is by there about once a week and from what Paul has told Respondent, and they have denied Paul a normal existence. Paul has had wet shoes several times from walking through wet grass from the car to the house. Respondent has told him that he is a Lutheran and to always be a good one but this has caused no conflict in the boy that he could see. Paul has never objected to the time spent at the Lutheran Church of appeared restless or lost interest in church.
Appellant's testimony was to the following effect: Because of Respondent's irresponsibility at the time of the divorce the parties had agreed that Paul should not stay with Respondent over night until he reached age eight. Since the divorce Respondent had shown himself irresponsible in failing to bring back clothing and 'motorific' toys; in being 20 or 30 minutes late several times in bringing Paul home; and with respect to Paul's health. Paul would come home with grass stains, dust, and dirt on his clothes. Paul came home once from Respondent's with wet feet and began coughing that night. He got oversunburned once after he had recovered from the mumps, had fever, and could not go to summer camp because of this. He had fever also after being exposed to the cold while at a football game with Respondent in December, 1967. Appellant refused to let Respondent see Paul when he had the mumps and chickenpox. She enrolled Paul in Rossman School without consulting with Respondent and instructed the school to give no information on Paul to anyone. She had sent play clothes with Paul for after Sunday School and Church but Paul would come back with his Sunday School clothes wet from washing the car. Paul has played with the children at his school during the week and with some of them on Saturdays. He has missed 'social education' at birthday parties because of having to visit Respondent. Paul had said Respondent's Church lasted too long. Paul has attended church with Appellant. The visitations with Respondent make it difficult to get him fed and to bed by eight. Paul is used to eating at six and is very tired after each visit with Respondent. Her home, on a one-acre lot with outside play equipment, is better of Paul than Respondent's apartment. Paul always had a 'tremendous' number of toys. If she had anything to do with it, Paul would 'never, ever visit with his father.' She wants visits with Respondent cut down so he will eventually have nothing to do with rearing Paul. In testifying she requested the court never to let Paul see his father again because of the latter's irresponsibility and 'poor training toward this...
To continue reading
Request your trial
-
Marriage of Powers, In re
...S.W.2d 5, 7 (Mo.App.1975), and to evaluate the intangibles which do not appear in the record in child custody cases. Graham v. Graham, 428 S.W.2d 941, 944 (Mo.App.1968). The wife argues that the trial court abused its discretion in granting the husband excessive temporary custody. The main ......
-
Marriage of Bradford, In re
...are usually served by association with both parents. Asbell v. Asbell, 430 S.W.2d 436, 438(6) (Mo.App.1968); Graham v. Graham, 428 S.W.2d 941, 944-945(4) (Mo.App.1968). In short, it is neither alleged nor indicated that the default judgment was the product of misrepresentation nor that the ......
-
L-- E-- (S--) v. J-- A-- E--, L---
...but also their sincerity and character and other trial intangibles which may not be completely revealed by the record. Graham v. Graham, 428 S.W.2d 941, 944 (Mo.App.1968); Wagner v. Wagner, 465 S.W.2d 655, 659 (Mo.App.1971); M--- C--- A--- v. G--- H--- A--- , 493 S.W.2d 660, 663 (Mo.App.197......
-
Stockton v. Stockton
...we would sua sponte dismiss the father's appeal for total failure to comply with Civil Rules 83.05(a)(3) and (e), V.A.M.R. Graham v. Graham, Mo.App., 428 S.W.2d 941, 944(1). Although Civil Rule 73.01(d), V.A.M.R., enjoins us to review court-tried cases upon both the law and the evidence, we......