Hawkins v. Thompson
| Decision Date | 23 April 1948 |
| Docket Number | 6720 |
| Citation | 210 S.W.2d 747 |
| Parties | HAWKINS v. THOMPSON |
| Court | Missouri Court of Appeals |
'Not to be published in State Reports'.
Norman Foulke & Warten, of Joplin, for appellant.
John H Flanigan, Jr., of Carthage, for respondent.
VANDEVENTER
This is an appeal from a decree of the circut court of Jasper County partially sustaining a motion to modify a decree in a divorce case relative to the care and custody of a child. On the 22nd day of December, 1944, Owen Hawkins, the appellant here, as plaintiff filed a petition for divorce against his wife Josephine Hawkins, and as his grounds alleged that his wife offered him certain indignities, among which it was alleged that she wrote him a letter telling him she did not love him any more and that she was in love with another person. His wife (the respondent) voluntarily entered her appearance, waived the issuance of summons, consented to the jurisdiction of the court over her person as fully as if summons had been served upon her in the manner provided by law. In her entry of appearance and waiver of summons, she stated she knew the nature of the action, that she had received a copy of the petition, that she was not in the military service of the United States of America and she requested that the case be set for hearing as soon as the rules of the court would permit. This entry of appearance and waiver so filed by her was signed and acknowledged in the presence of a notary public for Los Angeles County, California. She did not file an answer, did not appear at the trial which was had on the 4th day of January, 1945, and a decree was entered in favor of appellant. In the decree it was recited that the issues were found in favor of the appellant, that he was the injured and innocent party, was of good moral character and entitled to a divorce. In this petition, he had asked for care and custody of their child, Sally Jo Hawkins, age three years. The decree gave him the exclusive care, custody and control of the infant child forbidding any interference on the part of the respondent.
On the 29th day of June, 1946, the respondent filed a motion to modify the decree as to care and custody of the infant child, Sally Jo Hawkins, and in that motion stated that there had arisen a new state of facts and conditions since the granting of the original decree in the divorce case. It was alleged that since the divorce was granted, appellant had remarried and lived in Baxter Springs, Kansas; that his wife had a child by a former marriage, which was now living with them, that appellant had permitted the child, Sally Jo Hawkins to be taken out of the State of Missouri and that the appellant was not caring for or supporting the child. Respondent further stated that she also was remarried and was living with her husband, Phillip B. Thompson, at 4705 Kester Avenue, Sherman Oaks, California, that she had a good income and a good home and was willing and financially able to take care of and raise the child and properly educate her. She further stated that appellant, since the custody of the child had been awarded him, had persistently refused to permit her to see the child or to permit the child to visit her although he had previously agreed to do so. She prayed for a modification of the decree and asked that the custody of the child be awarded to her.
After a full, complete and extended hearing on this motion to modify, the same was modified to the extent that it permitted the respondent to visit the child at reasonable times.
The evidence presented on this motion to modify showed that appellant and respondent were married in 1937. That born of this marriage was the child in question, that in 1943, appellant, respondent and the child were living with appellant's sister and mother in California and both of them were working at Lockheed Aircraft Plant at Burbank California. That a short time before Thanksgiving, 1943, her husband enlisted in the air force of the army and was stationed away from California, part of the time in New Mexico. That there was also working in the Lockheed plant one Phillip B. Thompson, a married man, with whom she became acquainted and with whom she fell in love. The evidence indicates that for some months respondent and Thompson carried on a partially concealed clandestine courtship; that eventually, she, with the assistance of Thompson, packed her clothes and left the home her husband had provided for her with his mother and sister, where also Sally Jo was kept, and obtained a private room elsewhere. Later, also with the assistance of Thompson, she moved to the residence of a Mrs. Baldwin and in a short time she moved onto the property of Thompson's mother. When she left the home provided by her husband, she also left Sally Jo with her husband's sister and mother, and told the mother she would never take Sally Jo away from her. Before leaving her home and child she wrote her husband (who was still in the armed forces) a letter telling him with brutal frankness that she did not love him any more but that she did love another. He immediately came to the Lockheed plant to see her where he found her, not working but apparently waiting for someone, and tried to affect a reconciliation for the sake of their daughter. She emphatically refused to become interested in the proposed reconciliation and appeared to have no interest in either her daughter or her husband and informed him of her state of mind. At other times he tried to get her to return to him for the child's sake but without success.
Appellant brought their child back to Missouri and left her with his mother, h being unable to care for it because of his service with the army. After he volunteered in the service of his country, he had made an allowance to her, which the evidenced showed was either $ 80.00 or $ 100.00 per month and that this allowance continued until approximately three months after the divorce. Appellant filed a suit for divorce in Jasper County, Missouri as above related.
He was discharged from the armed forces on October 25, 1945, came back to Baxter Springs, Kansas, where he immediately went into business and later married a very estimable lady of about his age, who had a child, also a girl, of about the same age of Sally Jo. His new wife's former husband had been killed in action while in foreign service.
In the meantime, Thompson's wife had secured a divorce from him and he had married respondent. Thompson had been drafted into the armed services for about seven months when he was discharged for some physical disability. He had resumed his work at Lockheed and was making $ 58.00 per week. They were living on the rear of a lot belonging to his mother in Sherman Oaks, California. The evidence further showed that the mother of appellant had taken Sally Jo to the State of Washington with the consent of appellant, that she was well taken care of and that she did not bring her back to Missouri until the time the first motion to modify was being heard. It was shown, however, that appellant and his second wife were living in Baxter Springs, Kansas, were people of the highest character, regular attendants in church, in affluent circumstances and able to take care of Sally Jo and willing and anxious to do so. They had a nice home in a high class residential neighborhood and were well thought of by all their neighbors. In fact, no attack whatever was made indicating that they were in any way unfit persons to take care of her.
On the 4th day of November, 1946, the respondent filed in the circuit court of Jasper County a second motion to modify the decree as to the care and custody of Sally Jo. This second motion alleged that at the time the decree of divorce was granted and the custody of Sally Jo to her father, that the appellant was then in the Army Air Corps and that the respondent was not in a financial condition to support and maintain the child; that both parties agreed that the custody of the child should be decreed to plaintiff and that whenever the circumstances of respondent changed and she was in proper condition to take care of said child, she should have it. That since said order relating to custody was made, the circumstances surrounding the parties had changed. That during much of the intervening time plaintiff had not personally had the care and custody of the child but that it had been in the custody of his mother, who was 67 years of age and that she had taken it to Spokane, Washington and respondent could not visit it. That respondent had married Phillip B. Thompson, who had established a suitable home and place of abode for respondent and respondent's child at 4705 Kester Avenue, Sherman Oaks, California, that the respondent and her present husband had recently acquired a new home and within three weeks would start constructing a new house providing plenty of room for said child and the family and where the child could live in comfort and in a condition beneficial to the health of said child, that she would have a room of her own, it was located near a school and in easy reach of transportation; that she and her new husband had no children of their own and that she was not then working and did not intend to work and could devote her entire time to the education, training and upbringing of said child; that the appellant had remarried and his wife had a minor child by a former marriage which was the same age of Sally Jo and who was living with them at Baxter Springs, but that Sally Jo's best interest required that she be placed with her mother, the respondent, so that she might have a mother's love, affection and care. It further alleged that her new husband was gainfully employed at the Lockheed Aircraft Plant at Burbank, California 'earning about $ 60.00 per...
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