Hartman v. Hartman

• Decision Date: 07 December 1925
• Docket Number: No. 15464.,15464.
• Citation: 277 S.W. 950
• Parties: HARTMAN v. HARTMAN.
• Court: Missouri Court of Appeals

277 S.W. 950

HARTMAN v. HARTMAN.

No. 15464.

Kansas City Court of Appeals. Missouri.

December 7, 1925.

Appeal from Circuit Court, Buchanan County; Sam Wilcox, Judge.

"Not to be officially published."

Motion by Arminta Hartman against James H. Hartman, to modify decree in divorce suit giving custody of child to defendant, so as to give its custody to plaintiff. From judgment changing custody from defendant to plaintiff, defendant appeals. Reversed.

Thomas F. Ryan, of St. Joseph, for appellant.

Oliver C. Hathway of St. Joseph, for respondent.

BLAND, J.

Plaintiff and defendant were formerly husband and wife, but plaintiff obtained a divorce from defendant about 6 years ago. Seven children were born of the marriage, and of these two girls and one boy were minors at the time of the divorce. The custody of the older girl was given to the plaintiff and the other girl and the boy to defendant. Eleven months after the divorce, plaintiff married again, but lived with her second husband only 4 years when she was divorced from him. Defendant has remarried and is now living with his second wife. The younger girl left the father and went to the mother, and has remained with her ever since. She is now 19 years of age and has finished high school. On the 12th day of May, 1925, plaintiff filed a motion to modify the decree so as to give custody of the boy, who was then over 15 years of age, to her.

Plaintiff testified that when divorced from defendant she was given no alimony and was compelled to go to work, but that she has now about $2,000, mostly in cash; that one of her married daughters, who lives in California, desires that she and the 19 year old daughter come there and live with her; that they were going, and the boy wanted to go with her, and that she told him that he could go; that the boy preferred to live with her; that she desired to have the custody of the boy so she could give him a high school education; that the decree of divorce permitted the boy to visit her at all reasonable times, but that formerly defendant did not comply with this in the way he should, and she was required to apply to the judge who had granted the divorce for relief; that thereafter defendant permitted the boy to come to see her, but not often enough. She testified that she was now 56 years of age and had lived with her first husband 33 years; that the daughter, whose custody was given to plaintiff, is now married and rents from defendant the apartment where they live, and that plaintiff rents rooms from this daughter, the daughter paying $15 and the mother $5 per month of the rent; that she had been living with, her daughter for three months; that during that time the boy was going to school and saw plaintiff every day when he came to her house for dinner; that she did not know of any objection that defendant had to the boy's visiting her.

Defendant testified that he is a farmer and contractor; that after the divorce the older daughter lived with her mother awhile until she and her mother fell out, and then the daughter came to live with him and remained until she was married; that the other daughter went to live with her mother with his consent; that he reared two of his grandchildren whose father was dead; that he sent one of his daughters, the one now living in California, to college, and also the oldest grandchild, a boy; that his son had finished grade school, and that he intended to send him either to high school or to business college; that his present wife treated the boy better than plaintiff had treated him; that he never objected to the boy's visiting his mother; that when the boy was sick he told his daughter to tell plaintiff that she could come to see him; that the boy took dinner with his mother every day while he was going to school, to which the witness did not object; that the witness does not now object to his son seeing her; that on Saturdays and after school hours the boy drove a truck for him.

The boy testified that he had finished grade school, and that he had been helping his father by driving a truck on Saturdays and after school; that he wanted to go to high school, but had never talked to his father about it, and had not heard his father say whether he intended to send him to high school or not; that his father once said: "I could either be helping him or going to high school; he said that once. He said by going to school this year I lost a year's work." The witness thought that he would be more likely to go to high school if with his mother than with his father. When asked abut his father's treatment of him, he said that at times his father "fusses and quarrels, but other times it is good"; that the treatment he received from his stepmother was good; that he saw his mother every day when he went to school. When asked if there had been any any objection to his seeing his mother, he answered, "Not recently"; that formerly his father objected; that prior to the past year he did not go to see his mother very frequently; that he felt sure he would be better satisfied with his mother; that he knew about his mother's going to California and he wanted to go with her.

The younger daughter testified that she had been living with her mother about four years; that her mother treated her well; that she left her father because "he did not treat me well"; that her mother sent her to high school, from which she was graduated, and that she was going to California with her mother to live with her sister; that she thought she would be able to obtain a better position there.

The father testified that he was financially ' able to care for the boy, and this is not disputed. No complaint was made as to the manner in which the father has reared the boy to date. The court changed...