H------ v. D------

• Decision Date: 06 December 1963
• Docket Number: No. 8209,8209
• Citation: 373 S.W.2d 646
• Parties: H_____, Plaintiff-Respondent, v. D_____, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 646

373 S.W.2d 646

H_____, Plaintiff-Respondent, v. D_____, Defendant-Appellant.

No. 8209.

Springfield Court of Appeals, Missouri.

Dec. 6, 1963.

Motion for Rehearing or for Transfer to Supreme Court Denied

Jan. 2, 1964.

Thomas Strong, Farrington & Curtis, Springfield, for defendant-appellant.

John F. Carr, Miller, Fairman, Sanford, Carr & Lowther, Springfield, for plaintiff-respondent.

HOGAN, Judge.

This is a child custody action. The plaintiff is the father of the child, and the defendant is her mother. They were married on January 25, 1957, and the child was born November 6, 1958. The two were separated shortly after the child was born. They were divorced in the Circuit Court of Greene County, Missouri, on May 1, 1959, and at that time the trial court granted a divorce to the plaintiff, but awarded custody of the child to the defendant. In January 1962, the plaintiff filed this Motion, requesting modification of the original decree so as to grant him the care and custody of the child, and asking for permission to remove the child to California, where he now resides. As grounds for his Motion, the plaintiff set up that: (a) the defendant was unfit to have custody of the child; (b) the defendant had, in effect, relinquished her right to care and custody of the child by placing her in the home of the maternal grandparents in Missouri, while defendant removed her residence to California; (c) the defendant had been engaged in an illicit relationship with a man not her husband; and (d) the plaintiff had been denied access to the minor child, without cause. The defendant filed a responsive pleading in which she traversed the allegations of the plaintiff's Motion generally, prayed that she be allowed to take the child to California, and asked that the amount provided for child support be increased. The trial chancellor has modified his original decree by awarding custody of the child to the plaintiff and granting permission to remove the child to California. The defendant has appealed.

Though the evidence is irreconcilably in conflict on almost every point, it is fair to say that the parties have had only a brief and very troubled marital career. The two were married in 1957 when the plaintiff was about 20 and the defendant only about 18. Their acquaintance was very limited when they were married, and their difficulties were not long developing. The plaintiff began drinking heavily within a short time and, at least according to the defendant's testimony, was physically abusive to her on a number of occasions. She estimated that the two were separated 'as many as three times' during their first year of marriage.

In February 1958, the defendant began a proceeding for divorce and moved to St. Louis to live with her sister, only to discover that she was pregnant. According to the defendant, she then 'talked to his parents' about 'financial help with the baby' and, according to the plaintiff, he went to St. Louis and 'brought her back.' In any event, the two were temporarily reconciled and the minor child was born November 6, 1958. Whatever the basic source of trouble between the two, this attempt at reconciliation was unsuccessful. In December 1958--according to the defendant because of the plaintiff's physical abuse--the parties were finally separated, and on May 1, 1959, they were divorced.

During the period from early December 1958 to March 1960, when the plaintiff moved to California, there seems to have been little contact between the two. The defendant's evidence indicated that the plaintiff made very little effort to see the child and that when he did attempt to see her he was sometimes intoxicated and only came 'to torment me.' The plaintiff very positively denied that he was abusive either to the child or to his wife during this period; he maintained that he had visited the child as often as possible, and had provided as much support as his means allowed. In March 1960, the plaintiff moved to California, while the defendant remained in Springfield. Several witnesses testified to the defendant's exemplary behavior during this period following the divorce and preceding her ill-fated attempt to become reconciled with the plaintiff in 1961. It is not seriously contended that during the first two years of her child's life the defendant conducted herself with any impropriety, nor that she failed to care properly for her child. The evidence indicates that the defendant at this time led a quiet and conventional life as a stenographer for a local drug firm, and that she spent as much of her time as possible caring for her child; the record indicates that she was a devoted and attentive mother. Indeed, we may summarize the whole diffuse record concerning the four years between January 1957 and January 1961 by saying that the evidence shows principally that the whole married career of these unfortunate litigants was characterized by misunderstanding, frequent quarrels which often ended in physical violence, and numerous periods of separation and attempted reconciliation. The relationship between the parties, both during their marriage and after their divorce in 1959, was often marked by an atmosphere of mutual suspicion or downright hostility and, while the record does not convincingly show the real source of their difficulty, it does show that their feelings toward each other had not abated at the time this case was tried. For this reason, we are frank to say that we accept the parties' testimony--at least that concerning the other's behavior--with considerable reserve.

The principal matter litigated upon this trial was the series of events which occurred after January 1961 when the plaintiff and defendant again attempted to become reconciled. As we have said, the plaintiff had moved to California in March 1960, seeking employment. Early in 1961, the plaintiff visited Springfield and while here he called on the defendant. Whatever his motivation at the time, plaintiff asked the defendant to return to him and bring the child so he might 'establish a home for her and the child and be remarried to her.' The circumstances surrounding this undertaking initially are not questioned: the plaintiff admittedly requested that the defendant return and promised the defendant that he would marry her immediately if she would do so. In February 1961, the defendant took the child and went to California where she joined the plaintiff.

The parties were not remarried. According to the plaintiff, the defendant never actually mentioned marriage, either at the time of his proposal that she return with him to California or after she joined him. When he broached the subject of marriage, he was told by the defendant 'that she did not care for me, and did not want to marry me' and that defendant had joined him only 'to provide welfare for her [defendant] for a certain length of time, until she could become established.' The defendant, on the other hand, maintained that she had consented to go to California only in reliance upon plaintiff's offer of marriage, and that when she arrived plaintiff refused to marry her. When he was pressed, the defendant testified, the plaintiff would temporize, stating that the two would be married 'within a few weeks' or 'as soon as we can get a baby sitter.' In any event, the two resumed cohabitation, established a home together with the child, and held themselves out to their acquaintances as being husband and wife. Eventually the defendant secured employment and the two shared their earnings and established a joint bank account. This arrangement lasted until the end of June or beginning of July, 1961. Both parties (then in their early twenties) assured the trial court that though they shared the same roof they voluntarily remained continent after the first few weeks in California.

In describing the plaintiff's actions during this period from February to July 1961, the defendant vividly accused the plaintiff of very serious improprieties toward the child. It was the defendant's testimony that the plaintiff disciplined the child harshly and unnecessarily. She testified that the plaintiff exposed his genital organs to the child in an obscene manner: it was her position that he did so deliberately in order to frighten the child, and she said that for this reason 'I was so mad and so hurt and I left the following week end.' The plaintiff vigorously denied that any such incident ever occurred. His explanation--if it can be called that--for the parties' final separation in July 1961 was that 'we didn't feel like sharing out lives together as man and wife. We were incompatible.' The upshot of these renewed difficulties was that the defendant moved from the quarters she had been sharing with the plaintiff to a separate apartment. It is the plaintiff's position that the defendant then acquired a paramour, a man named Larsson.

According to the plaintiff's evidence, after he and the defendant had returned to California and had subsequently discovered that they did not desire to be remarried, he and the defendant made an agreement to separate. In order to assist the defendant as much as possible, he found an apartment for the defendant, paid a part of the rent, furnished the apartment, and stocked it with some groceries. The plaintiff was obliged, he said, to borrow money to do so. Within a very short time, the defendant called the plaintiff by telephone and stated that she was going to move but refused to disclose her new address to the plaintiff; he heard nothing further from her until the middle of September, 1961. From July until the middle of September, the plaintiff had not bee permitted to visit the child. However, the defendant's bank had sent her statement to the plaintiff by mistake and plaintiff, in going through the statement, had discovered that one of the checks bore an address on Chadron Avenue in Gardena, California; by comparison with the telephone directory, it was shown in evidence...