Hurley v. Hurley

• Decision Date: 22 November 1955
• Docket Number: No. 7407,7407
• Citation: 284 S.W.2d 72
• Parties: Edward D. HURLEY, Plaintiff-Respondent. v. Dorothy Elizabeth HURLEY, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 72

284 S.W.2d 72

Edward D. HURLEY, Plaintiff-Respondent. v. Dorothy Elizabeth HURLEY, Defendant-Appellant.

No. 7407.

Springfield Court of Appeals, Missouri.

Nov. 22, 1955.

Lincoln, Lincoln, Haseltine, Forehand & Springer, Springfield, Edgar Mayfield, Lebanon, for defendant-appellant.

Neale, Newman, Bradshaw, Freeman & Neale, Springfield, for plaintiff-respondent.

STONE, Judge.

On October 23, 1948, defendant was granted a divorce on her cross-bill, was given the care and custody of two minor children (hereinafter referred to as the children), and was awarded $40 per month for their support. The decree did not mention visitation of the children by plaintiff, their father. On plaintiff's motion, the court, on August 26, 1954, modified the decree by providing expressly that plaintiff may visit the children 'on all reasonable occasions in the home of the defendant' and may 'have said children visit him in the home of his mother' for a period of two weeks each year, during which period plaintiff 'shall have the care and custody of said children free from any interference or control by the defendant.' Defendant appeals, complaining only of the provisions concerning the 'visit' of two weeks each year in the home of plaintiff's mother.

Much of the testimony, at the hearing on the motion to modify, pertained to plaintiff's conduct shortly prior to the divorce in 1948. We shall refer to the charges against plaintiff in general terms only, since no good purpose could be served by recitation and recordation here of the sordid, vulgar and repulsive details of plaintiff's gross indiscretions and indecencies established, as we believe and find, beyond any reasonable doubt by obviously disinterested witnesses whose testimony, although referred to by plaintiff's counsel as 'backfence gossip' and an 'incredible line of 'sex pervert' testimony,' more properly was characterized by the trial judge as 'very strong proof from very reliable witnesses.' Although the trial judge also observed that 'I don't think we have to pass on whether he (plaintiff) was (a sex pervert) before,' the evidence fully justified his further statement that 'if he (plaintiff) did what these witnesses have said he did he certainly must have been a sex pervert.'

Properly recognizing that the original decree of October 23, 1948, from which no appeal was taken, was final and conclusive as to all matters then adjudicated, including care and custody of the children, and could not be disturbed except in a proceeding initiated for that very purpose [Hayes v. Hayes, 363 Mo. 583, 252 S.W.2d 323, 328(10); Mahan v. Mahan, 239 Mo.App. 317, 192 S.W.2d 626, 627(1); Sanders v. Sanders, 223 Mo.App. 834, 14 S.W.2d 458, 459(1)] and upon proof of new facts or changed conditions subsequent to the original decree [Cherry v. Cherry, Mo.App., 272 S.W.2d 700, 704(5); Lehr v. Lehr, Mo.App., 264 S.W.2d 35, 36(1); Montgomery v. Montgomery, Mo.App., 257 S.W.2d 189, 196(2); Ex parte Lofts, Mo.App., 222 S.W.2d 101, 106-107(5)], the trial judge commented, when the decree of modification was entered, that he was 'inclined to believe that the facts in this case do show a change of circumstances such as required by the law.' Our duty on appeal is to review the entire record with primary regard for the regnant principle that the welfare of the children is of paramount and controlling importance [Pope v. Pope, Mo.App., 267 S.W.2d 340, 343(3); Mayo v. Mayo, Mo.App., 244 S.W.2d 415, 416(1); Garvey v. Garvey, Mo.App., 233 S.W.2d 48, 50(2)] and to determine whether the moving party, in this instance plaintiff, has carried his burden of showing by a preponderance of the credible evidence [Armstrong v. Armstrong, Mo.App., 185 S.W.2d 845, 847(6); Morgens v. Morgens, Mo.App., 164 S.W.2d 626, 632(3)] changed facts and circumstances which, in the best interests of the children, require modification of the custodial provisions of the original decree. Davis v. Davis, Mo.App., 254 S.W.2d 270, 272(1); Fago v. Fago, Mo.App., 250 S.W.2d 837, 841(1).

In our review, we must bear in mind that it is not sufficient simply to show some change in circumstances but that modification is justified and permitted only upon proof of changed conditions affecting the welfare of the children to a substantial or material extent [Application of Shreck-engaust, Mo.App., 219 S.W.2d 244, 247(3); Hawkins v. Thompson, Mo.App., 210 S.W.2d 747, 751-752(3)] and in a beneficial manner. Frame v. Black, Mo.App., 259 S.W.2d 104, 108(4); Watkins v. Watkins, Mo.App., 230 S.W.2d 778, 783; Schumm v. Schumm, Mo.App., 223 S.W.2d 122, 126(7). Mere passage of time and the fact that the children are older do not constitute changes sufficient, in and of themselves, to justify modification [Davis v. Davis, supra, 254 S.W.2d loc. cit. 273(4); Fordyce v. Fordyce, Mo.App., 242 S.W.2d 317, 314(3)], and the morals of the respective parents properly become the subject of inquiry as an important factor to be considered in determination of the motion to modify. Dansker v. Dansker, Mo.App., 279 S.W.2d 205, 210(7); Link v. Link, Mo.App., 262 S.W.2d 318, 321(4); Rex v. Rex, Mo.App., 217 S.W.2d 391, 394.

On October 18, 1948, five days prior to the original decree, plaintiff, who had been in military service some 3 1/2 years in earlier life but then was employed at a dairy in Lebanon, re-enlisted as a staff sergeant in the air force. Trooper Brummell of the Missouri State Highway Patrol, who testified that plaintiff had admitted to him in 1948 the indiscretions and indecencies which other witnesses had described as matters of their own personal knowledge, said also that an effort was made to avoid 'exposing the horrible facts to the general public out of respect for his (plaintiff's) wife and children' and that, in his last meeting with plaintiff, 'an agreement' was made 'that these incidents would cease to happen and that (plaintiff) was then thinking of going into the service and leaving town.' Although plaintiff offered guarded and unconvincing denials of the alleged 'agreement' as well as of any misconduct on his part, the fact remains that he was, at the time of entry of the original decree, and that he has been at all times thereafter, in military service which he now intends to follow as a career. It is suggested that plaintiff sought no provision for visitation or custody of the children in October, 1948, because he then anticipated an overseas assignment. If so, there has been no material change in plaintiff's situation for, at the hearing on the motion to modify, he testified that he expected 'to be called back to overseas duty * * * at any time.' Readily admitting that he had had 'regular furloughs' while in service, plaintiff said that he had not visited the children on any of those furloughs 'because I never could afford the trip'; and, when asked whether he 'could afford the trip now,' plaintiff's reply was 'no, I had to borrow the money to come here.'

Witness Schmidtlein, who was best man at the wedding of plaintiff and defendant and who loaned plaintiff money for his honeymoon, testified (without denial by plaintiff) that, in talking with plaintiff in January, 1952, after his return from a period of overseas duty, plaintiff told 'about his living over in Europe * * * shacked up...