Hill v. Hill

• Decision Date: 07 December 1925
• Docket Number: Mo. 15463.
• Citation: Hill v. Hill, 277 S.W. 961 (Mo. App. 1925)
• Parties: HILL v. HILL
• Court: Missouri Court of Appeals

277 S.W. 961

HILL v.HILL

Mo. 15463.

Kansas City Court of Appeals. Missouri.

December 7, 1925.

Appeal from Circuit Court, Buchanan County; William H. Utz, Judge.

"Not to be officially published."

Suit by Goldie Hill against Clarence Hill.Decree for plaintiff.From order overruling defendant's motion to modify decree, he appeals.Affirmed.

Joseph Goldman, of St. Joseph, for appellant.

Eastin & McNeely, of St. Joseph, for respondent.

ARNOLD, J.

This is an appeal from an order of the trial court overruling defendant's motion to modify the decree in a suit for divorce, whereby the custody of the small daughter, Juanita June, was awarded to the mother, the plaintiff therein, and $25 per month for the maintenance of the child.The divorce suit was tried in division No. 3 of the circuit court of Buchanan county on May 17, 1924, where a decree was entered for the mother and by agreement the care and custody of the child was awarded to her; the father being required to pay $25 per month toward the support of the child.

On January 28, 1925, the defendant in that suit filed in said division of the circuit court a verified motion and application asking a modification of that part of said divorce decree awarding the care and custody of said child to her mother, by awarding said care and custody to the father, and that the further payment of $25 per month be ordered to cease.The grounds for said motion and application, as stated, were that the condition of the parties had changed since the custody of said child had been awarded to the mother, and that since that time she had intermarried with one Proffitt and was living in a rooming house which was not suited to the child's welfare, and that the sanitary conditions of said house were poor; that the father of the child was desirous and able to place the child in surroundings more suited to its welfare; and that no further necessity existed for the payment to the mother of the sum of $25 per month as maintenance for the child.

On February 13, 1925, the court heard evidence in support of and against the motion, both parties being present and represented by counsel.The court overruled the motion to modify the decree, and the movant thereof appeals.As is required of us, we have read the testimony produced at the hearing on the motion and shall consider and decide the case de novo.

It has been held and is the established rule in this state that a motion to alter or modify a decree of divorce concerning the custody of a minor child, or children, is a continuance of the original suit, and the appellate court will review the evidence and give judgment which should have been given below.The reason for the rule is that in such a case the findings of, the trial judge are not conclusive where the testimony is conflicting.Nunnink v. Nunnink(Mo. App.)257 S. W. 832, 835.

Under the provisions of section 1814, R. S. 1919, as to the custody of a minor child, or children, the father and mother are placed on an equal footing.Such being the law, and the welfare of the child being the chief consideration, its custody should not be awarded for the mere purpose of gratifying the feelings and wishes of one parent against the other.Barnhart v. Barnhart(Mo. App.)253 S. W. 50.

Under points and authorities, defendant urges that the trial court erred in over ruling his motion to grant him the custody of the child and in refusing...