Green v. Perr
| Decision Date | 17 April 1951 |
| Docket Number | No. 28153,28153 |
| Citation | 238 S.W.2d 924 |
| Parties | GREEN v. PERR. |
| Court | Missouri Court of Appeals |
R. P. Smith, Cape Girardeau, for appellant.
J. Grant Frye, Cape Girardeau, for respondent.
This is an appeal from an order modifying a decree of divorce with respect to the custody of a minor child.
The divorce action had been instituted in the Cape Girardeau Court of Common Pleas by the wife, Golda M. Perr, against her husband, Eberhardt Perr, and had resulted in the entry of a decree for plaintiff awarding her the general custody of a minor child, James Edward, who was then approximately thirteen months of age. The date of the decree was March 10, 1944.
The child had unfortunately been born with a harelip and cleft palate, which required a series of operations to relieve the affliction.
On February 13, 1947, the court modified the decree on defendant's motion so as to provide that defendant should have the custody of the child from September 1st of each year to the following May 31st, and with plaintiff to have custody for the remaining three months, or from June 1st to August 31st.
From the order so entered plaintiff appealed to this court, where the order was reversed and the cause remanded with directions that the child be allowed to remain in plaintiff's general custody, but with defendant accorded all reasonable visitation privileges, which were to be specifically fixed and defined so as to obviate any further room for controversy between the parties over the exercise of defendant's right to see his child. Perr v. Perr, Mo.App., 205 S.W.2d 909.
We observed in that case in connection with the question of the parties' attitude towards compliance with the court's decree that not only had plaintiff herself been greatly lacking in a proper regard for defendant's rights, but also that the situation had been seriously complicated by reason of her marriage to one Green, who had refused to permit defendant to call at their home to get the child when exercising his privilege of visitation.
Our opinion disclosed that in reversing the order modifying the decree we had no doubt of defendant's devotion to his child, but acted purely upon what we conceived to be the best interests of the child in the light of the circumstances of the case as disclosed by the record on the appeal. The child was then only four years of age; and it appeared that its welfare would be better served as of that time if it were left with its mother in the home she had established with her second husband, Green, rather than to be entrusted for nine months of the year to defendant, who was then living alone in a two-family flat, and who had planned, during the period of his custody, to leave the child with an upstairs neighbor while he was away each day at work. Furthermore there was no question in our minds of plaintiff's own devotion to the child; and we were particularly impressed with the desirability of having it remain in her care for the time being because of the experience she had gained in connection with the measures that were being taken to relieve its physical affliction.
So matters stood until October 22, 1948, when the court again modified the decree upon defendant's motion so as to provide that plaintiff should have custody of the child during the entire school year subject to defendant's right of possession on alternate week-ends, and that defendant should have custody during summer vacation periods subject to plaintiff's right of possession on alternate week-ends.
Being dissatisfied with the provision awarding defendant the custody of the child during summer vacations, plaintiff attempted to appeal from the order, but failed to give her notice of appeal in time with the result that her appeal was dismissed by this court. Perr v. Perr, Mo.App., 227 S.W.2d 490.
Very shortly after the modification of October 22, 1948, and at a time when steps were being taken to have the order reviewed on appeal, a material change in condition occurred which added immeasurably to the difficulties already existing in securing compliance with the court's decree.
Plaintiff's husband, Green, was a salesman, and at the time of his marriage to plaintiff was assigned to a territory which permitted him to maintain his home in Cape Girardeau, where plaintiff and defendant had resided during the period of their marriage, and where defendant still resides. Within less than a month after the second modification, Green changed his employment and was transferred to Plymouth, Wisconsin, where he moved with his family, consisting of plaintiff and the child, on January 31, 1949.
Even if there had been no previous trouble over securing obedience to the court's directions regarding the successive transfers of possession of the child from the one parent to the other, the change in plaintiff's residence would have put further compliance out of the question for all practical purposes. In view of the distance separating the parties and the time and expense that would be involved in journeying to and fro between Wisconsin and Cape Girardeau, it obviously became physically impossible for either party to exercise his or her right of possession of the child on alternate week-ends during the period that the other had general custody.
On May 31, 1950, plaintiff filed a motion to modify the decree in such a way as to meet the changed condition that had arisen because of her removal with the child from Cape Girardeau to Wisconsin.
Defendant thereupon filed a countermotion in which he prayed the court either to give him absolute custody of the child, or else to require plaintiff to keep the child in Missouri and within a reasonable distance of the court.
On August 25, 1950, the court consolidated the two motions for hearing, and at the same time entered an order directing plaintiff to...
To continue reading
Request your trial
-
L v. N
...Mo.App., 306 S.W.2d 588, 591(3); Bedal v. Bedal, Mo.App., 2 S.W.2d 180, 184(7); Zerega v. Zerega, Mo.App., 200 S.W. 700.6 Green v. Perr, Mo.App., 238 S.W.2d 924, 927(1); Perr v. Perr, Mo.App., 205 S.W.2d 909, 911(3); Martin v. Martin, Mo.App., 160 S.W.2d 457, 459(4); Baer v. Baer, Mo.App., ......
-
Graves v. Wooden
...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 n......
-
M--- L--- v. M--- R---
...and love of an understanding father will be most needed and beneficial. Davis v. Davis, supra, 354 S.W.2d at 531; Green v. Perr, Mo.App., 238 S.W.2d 924, 927; Wood v. Wood, supra, 400 S.W.2d at 437(9). See Lewis v. Lewis, Mo.App., 301 S.W.2d 861, 863; Fordyce v. Fordyce, Mo.App., 242 S.W.2d......
-
P-------- D-------- v. C-------- S--------
...now thirteen years of age [Davis v. Davis, Mo.App., 354 S.W.2d 526, 531; Fordyce v. Fordyce, supra, 242 S.W.2d at 314; Green v. Perr, Mo.App., 238 S.W.2d 924, 927], could never constitute an adequate and complete substitute for all that is implicit in, and flows from, the love and devotion ......