Green v. McDowell

• Decision Date: 22 June 1922
• Docket Number: No. 3226.,3226.
• Citation: Green v. McDowell, 242 S.W. 168, 210 Mo. App. 517 (Mo. App. 1922)
• Parties: GREEN v. McDOWELL.
• Court: Missouri Court of Appeals

242 S.W. 168

210 Mo. App. 517

GREEN v. McDOWELL.

No. 3226.

Springfield Court of Appeals. Missouri.

June 22, 1922.

Habeas corpus proceeding by Bertie I. Green against Claud C. McDowell to determine the right to custody of Chauncey I. McDowell, a minor child. Custody of child awarded to petitioner, with permission to respondent to visit it at reasonable times and to take the child to his home one month in each year.

Hamlin & Hamlin and Haymes & Dickey, all of Springfield, for petitioner.

O. H. Scott, of Buffalo, and Herman Pufahl, of Bolivar, for respondent.

PER CURIAM.

This is an original proceeding by habeas corpus to determine the right to the custody of Chauncey I. McDowell, a minor child 4 years of age.

This court appointed Hon. George W. Goad, a member of the Springfield bar, commissioner, with directions to take the testimony and make a report to the court with his finding of facts and conclusions of law. This he has done. The facts found by him are as follows:

"Finding of Facts.

"I find that some time prior to 1917 the petitioner and respondent were harried and lived together as husband and wife until about January, 1921. That there was born of said marriage one child, Chauncey I. McDowell, who is now about 4 years old, and the subject of their controversy.

"That petitioner and respondent resided at Mustang, in Oklahoma county, Okl., for about 2 years prior to November 16, 1920, at which time petitioner went to Oklahoma City. That petitioner and respondent never lived together as husband and wife from and after December, 1920, although respondent visited petitioner several times while she resided at Oklahoma City. That while she lived at Mustang, Okl., petitioner held the position of postmistress for about 2 years, lived in the same building where she kept the post office, and also worked at dressmaking. That some time in the early part of 1919, respondent secured employment in the oil field at Ardmore, Oklahoma, which was about 100 miles distant from Mustang. That respondent came home about once a month, staying from Saturday to Sunday evening. That prior to the time respondent went to Ardmore, petitioner met Arthur R. Green, that she went riding with him several times in company with respondent, and did some sewing for Green's children, and met him at the post office in a business way. After petitioner went to Oklahoma City, and during her stay at that place said Green visited her several times; on one or two of said visits he was accompanied by the respondent.

"Respondent testified the first time he met Green was July 5, 1920; that he came home from the, oil fields at Ardmore and found petitioner gone; that she came home that night with Green about "10 or 11 or 12 o'clock," claiming they were delayed on account of tire trouble; that they drove respondent's car.

"As to this incident, petitioner and Green testified that Green drove petitioner to Oklahoma City to a Fourth of July celebration at the request of respondent; that they started home early enough to arrive before dark, but they were delayed by tire trouble, and arrived home about 9 o'clock that evening; in any event the affair was not treated at the time by respondent as being serious, as Green stayed at the hotel that night, and the next morning respondent called on him and invited him to breakfast with him and petitioner, and on the same day took Green and petitioner in his car for a trip out in the country.

"Both petitioner and Green denied any improper conduct or relations with each other at any time, or that the subject of marriage was ever discussed between them prior to the divorce decree.

"While in Oklahoma City petitioner attended school, and, with the assistance of her parents, paid the expense thereof.

"In July, 1921, petitioner filed suit in the Oklahoma county, Okl., district court. Respondent was personally served, read the charges in the petition, and employed a lawyer to represent him in said case. I find that petitioner and respondent talked over the divorce matter prior to the decree; that petitioner stated that she wanted to be free and wanted to keep the child, stating that she would care for and educate same; that respondent consented for her to have the care and custody of the child, and promised to help her care for it, stating that he wanted her to have it while it was young if she took care of it properly.

"The foregoing are my findings as to matters which occurred prior to the divorce decree.

"On the 12th day of October, 1921, the district court within and for Oklahoma county, state of Oklahoma, rendered the following decree omitting caption:

"'Now on this the 12th day of October, A. D. 1921, the same being one of the regular juridical days of said court, came on to be heard the above-entitled cause, and the plaintiff appearing in person and by her attorneys, Giddings & Giddings, and the defendant appearing by his attorneys Cargill, Looney & Estes, and the court, having heard the evidence and argument and suggestions of counsel, and being fully advised in the premises, find:

"`(1) That the parties hereto were married as in plaintiff's petition set forth.

"`(2) That the plaintiff has been an actual resident of the state of Oklahoma and Oklahoma county for more than one year next preceding the filing of her petition herein.

"`(3) That one child named Chauncey I. McDowell, aged 4 years now in the custody of the plaintiff, was born as the fruits of said marriage.

"`(4) That said defendant has been guilty of gross neglect of duty as in plaintiff's petition set forth; that prior to the hearing of this cause and on the 11th day of October, 1921, the parties hereto entered into a contract of separation and disposition of property and the settlement of alimony and property rights between them, and that the plaintiff is entitled to a divorce and the custody, care, and control of the said minor child, Chauncey I. McDowell, and that she have and recover from the defendant the sum of $750 alimony, and $25 per month for the use, benefit, maintenance, and education of the said minor child, Chauncey I. McDowell, as agreed upon in said contract of separation and disposition of property.

"`It is therefore ordered, adjudged, and decreed by the court that the bonds of matrimony heretofore and now existing between the plaintiff and defendant be annulled, set aside, and held for naught, and both parties be and are hereby released from same, that said contract of separation and disposition of property, having been introduced in evidence herein and marked "Plaintiff's Exhibit A," be and the same is hereby ratified and approved by the court in all respects; and that the plaintiff have and recover from the said defendant the sum of $750 permanent alimony and in settlement of all property rights between the parties hereto; $350 cash paid to said plaintiff upon this day shown by the evidence in this case, and the additional sum of $400 permanent alimony to be paid on or before the 1st day of March, 1922, and as evidenced by a certain promissory note in writing made, executed, and delivered by the defendant to the plaintiff upon the 11th day of October, 1921, and the additional sum of $25 per month payable on the 1st of each and every month hereafter to the plaintiff for the use, benefit, maintenance, and education of the said minor child, Chauncey I. McDowell, and until the further express order of the court. And that the said plaintiff, until any further express order of the court, be and she is hereby awarded the permanent care, custody, and control of the said minor child, Chauncey I. McDowell, subject, however, to the right of the defendant to be with said child and visit said child at any and all reasonable times. Provided, however, that this divorce do not become absolute and of effect until six months from the date hereof?

"Sections 4968, 4971, and 4973 of the Revised Laws of Oklahoma 1910, were introduced in evidence by the respondent. Said sections are as follows:

"`4968. Care of Children. When a divorce is granted, the court shall make provisions for guardianship, custody, support and education of the minor children of the marriage, and may modify or change any order in this respect, whenever circumstances render such change proper, either before or after final judgment in the action. * * *

"`4971. Appeal in Ten Days. A party desiring to appeal from a judgment granting a divorce, must within ten days after such judgment is rendered file a written notice in the office of the clerk of the court, duly entitled in such action, stating that it is the intention of such party to appeal from such judgment. If notice be filed as aforesaid, the party filing the same may commence proceedings in error for the reversal or modification of such judgment at any time within four months from the date of the decree appealed from and not thereafter. It shall be unlawful in any event for either party to such divorce suit to marry any other person within six months from the date of the decree of divorcement; and if notice be filed and proceedings in error be commenced as hereinbefore provided, then it shall be unlawful for either party to such cause to marry any other person until the expiration of thirty days from the day on which final judgment shall be rendered pursuant to such appeal. Any person marrying contrary to the provisions of this section shall be deemed guilty of bigamy, and such marriage shall be absolutely void.

"`4972. Punishment for Remarriage within Six Months. Every person convicted of bigamy as such offense is defined in the foregoing section shall be punished by imprisonment in the penitentiary for a term of not less than one year nor more than three years.

"`4973. Decree to Show Date. Every decree of divorce shall recite the day and date when the judgment was rendered in the cause, and that the decree does not become absolute and take effect until the expiration of six months from said time, or as...