Graves v. Wooden

• Decision Date: 11 June 1956
• Docket Number: 7461,Nos. 7457,s. 7457
• Parties: Evelyn Sue Wooden GRAVES, Plaintiff-Respondent, v. Glenn WOODEN, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 665

291 S.W.2d 665

Evelyn Sue Wooden GRAVES, Plaintiff-Respondent, v. Glenn WOODEN, Defendant-Appellant.

Nos. 7457, 7461.

Springfield Court of Appeals, Missouri.

June 11, 1956.

Rogers & Rogers, Gainesville, for defendant-appellant.

Hogan & Hogan, Richard D. Moore, West Plains, for plaintiff-respondent.

STONE, Judge.

On October 5, 1951, plaintiff, then Evelyn Sue Wooden, was granted a divorce from defendant (on grounds not disclosed in the transcript) in the Circuit Court of Howell County, Missouri, and was given custody of Dyana Kay, then eight years of age, the only child born of the marriage. There was no award of alimony or child support and no mention of visitation or divided custody. By his motion to modify filed on September 18, 1954, defendant sought custody of the child on account of changed conditions subsequent to the original decree. On separete appeals here consolidated, defendant complains (a) of the judgment entered on February 9, 1955, overruling his motion on modify and directing his payment of an attorneys' fee of $200 to plaintiff, and (b) of the judgment entered on May 31, 1955, directing defendant to pay an additional attorneys' fee of $250 to plaintiff on appeal.

With respect to the issue raised by defendant's motion to modify, our duty on appeal is to review the entire record with primary regard for the regnant principle that the welfare of the child is of paramount and controlling importance [Pope v. Pope, Mo.App., 267 S.W.2d 340, 343(3); Mayo v. Mayo, Mo.App., 244 S.W.2d 415, 416(1); Garvey v. Garvey, Mo.App., 233 S.W.2d 48, 50(2)] and to determine whether the moving party, in this instance defendant, has carried his burden of showing by a preponderance of the credible evidence [Armstrong v. Armstrong, Mo.App., 185 S.W.2d 845, 847(6); Morgens v. Morgens, Mo.App., 164 S.W.2d 626, 632(3)] changed facts and circumstances which, in the best interests of the child, require modification of the custodial provisions of the original decree. Montgomery v. Montgomery, Mo.App., 257 S.W.2d 189, 196(2, 3); Davis v. Davis, Mo.App., 254 S.W.2d 270, 272(1). The morals of the respective parents are in every such case a proper subject of inquiry and become in the instant case an exceedingly important and persuasive factor. Hurley v. Hurley, Mo.App., 284 S.W.2d 72, 74(4); Dansker v. Dansker, Mo.App., 279 S.W.2d 205, 210(7); Link v. Link, Mo.App., 262 S.W.2d 318, 321(4); Rex v. Rex, Mo.App., 217 S.W.2d 391, 394.

For about two years prior to their separation (on a date not shown but 'not long' before the divorce), plaintiff and defendant had resided in Murray, Kentucky, where they had established a shoe store managed by defendant. As a result of their property settlement, defendant (having assumed all financial obligations in connection therewith) became the sole owner of the shoe store and of the family residence in Murray. After the divorce in October, 1951, plaintiff and Dyana lived in an upstairs three-room apartment in West Plains until the Fall of 1953 when they moved into a small house near the school then attended by Dyana. At the close of the school year in May, 1954, plaintiff stored her household furniture and 'stayed part time at my mothers' in West Plains. Dyana went to her father in Murray, where she had spent three weeks during the Summer of 1952, the entire Summer of 1953, and her Christmas vacations in 1952 and 1953. When defendant returned Dyana to West Plains the day before school started in September, 1954, he 'got an earful' about plaintiff and the motion to modify followed shortly.

As developed in examination of plaintiff herself at the hearing on February 9, 1955, she had, about January 15, 1953, met one Rex C. Graves, a married man (apparently estranged from his then wife although this is not shown clearly) who had some cabins and 'a tavern selling beer and meals' at Tecumseh, a small country community in Ozark County, Missouri. After meeting Graves, plaintiff 'made frequent visits' to Tecumseh. She conceded that she 'possibly' had been there 'about every weekend' and admitted that she had stayed overnight, 'sometimes Saturday and Sunday.' In reply to the pointed inquiry as to whether she 'did spend nights with Mr. Graves,' plaintiff assured the court and counsel that 'we had adequate sleeping arrangements, his mother was there.' However, neither Graves nor his mother testified; and, whatever the 'sleeping arrangements' were and however 'adequate' (in plaintiff's concept of that term) they may have been, she was pregnant when she married Graves on August 24, 1954 (about one week after he was divorced), and she gave birth to a daughter (two months prematurely, as she explained) on November 23, 1954.

While on her weekend trips to Tecumseh, plaintiff left Dyana with plaintiff's mother in West Plains; and, after defendant returned Dyana at the end of the summer vacation in 1954, she lived with her grandmother in West Plains until January 3, 1955, when the child was withdrawn from school there and was taken into the home occupied 'the middle of November,' 1954, by plaintiff, Graves and their infant daughter, which was located on a five-acre tract about 2 3/4 miles east of Gainesville. At the time of the hearing on February 9, 1955, Dyana was attending school in Gainesville, riding a bus to and from school. Graves then was operating 'a business in Gainesville' where 'he sells beer only'--'no meals.' Dyana had attended Sunday School in West Plains 'as regular as average' but not since 'about the middle of November,' 1954. When taken with her testimony as a whole, plaintiff's unconfirmed statement that, after the child's removal to Gainesville, 'I (plaintiff) am seeing she attends church,' lacks the 'naturally compelling ring of sincerity' [Clemens v. Clemens, Mo., 235 S.W.2d 342, 346] and leaves us unconvinced.

Turning to defendant, we find persuasive evidence of his commendable and continuing concern for Dyana's welfare. Shortly after the divorce, defendant began to send $25 per month to Dyana, most of which was deposited in Dyana's bank account 'to use when she saw fit,' and also 'cash trying to average each week spending money.' While Dyana was with defendant in the Summer of 1952, he clothed her for the coming school year and told her 'any time she needed necessities I would like to know about it.' On December 14, 1952, defendant married his present wife, Mrs. Jessie Frances Wooden, formerly of Shelbyville, Tennessee, a woman not previously married who, as the oldest of six children, had 'helped raise the younger five' after 'we lost our mother.' Since her marriage to defendant, the present Mrs. Wooden has 'made practically everything' for Dyana, who is hard to fit with 'ready made clothes' because 'she is short waisted' and above average in weight. During the four periods Dyana has been with defendant and his present wife in Murray (i. e., the Christmas vacations in 1952 and 1953 and the entire summer vacations in 1953 and 1954), Dyana and her stepmother 'got along fine.' The child evidenced affection for her stepmother who, in turn, emphatically stated at the hearing that 'I do as much for her (Dyana) as if (she were) my own child' and that, if defendant were given custody of Dyana, the stepmother would welcome the child into the Wooden home and would treat her as a daughter.

Defendant (now 38 years of age) and his present wife (now 36 years of age), to whom no children have been born, reside in a modern seven-room dwelling, which is only three blocks from school and six or seven blocks from the church attended by the Woodens, where defendant is treasurer of the Sunday School, teaches a class of young boys, and is the assistant training union director, and where his wife is superintendent of the primary department in Sunday School and group leader of the junior department in Training Union. The testimony (by depositions) of four residents of Murray, namely, the president and the 'agricultural representative' of the bank, the proprietor of a restaurant, and the minister of music at the church, adequately establishes that defendant's 'financial affairs are good, both from the business and personal standpoint,' and that he and his present wife are of unimpeachable reputation and character.

As we undertake the unwelcome and unpleasant task of determining which parent should be awarded custody of Dyana, we are deeply conscious of the finite limitations imposed by human frailty and fallibility upon courts, counsel and parties alike, and we are profoundly impressed with the heavy responsibility and grave solemnity attendant upon discharge of our duty bearing upon the sacred relationship between parent and child, involving the future course of a precocious and innocent girl, and perhaps influencing the eternal destiny of an immortal and unexpendable soul. We agree with plaintiff that the custody of a child should not be awarded with any thought of gratifying the wishes of, or meting out punishment upon, either parent [Long v. Long, Mo.App., 280 S.W.2d 690, 694(4); Green v. Perr, Mo.App., 238 S.W.2d 924, 927(1)]; and, notwithstanding the fact that Dyana did not testify and her parental preference (if any) is not indicated, it may not be amiss to add that a child's wishes, although entitled to consideration, are not to be indulged if they are inconsistent with attainment of the paramount objective, i. e., furtherance of the child's welfare. Fordyce v. Fordyce, Mo.App., 242 S.W.2d 307, 313-314(2); Wells v. Wells, Mo.App., 117 S.W.2d 700, 705 (16-18); Hartman v. Hartman, Mo.App., 277 S.W. 950, 951-952(1).

We also recognize that, as plaintiff's counsel remind us, a mother's prior transgression of the moral law does not necessarily require that she be denied or deprived of custody of her child. Johns v. McNabb, Mo., 247 S.W.2d 640, 643. But, we are not here confronted with the alternative of awarding custody either to aged and enfeebled great-grandparents or to a mother...