I v. B

• Decision Date: 11 October 1957
• Docket Number: Nos. 7583,7615,s. 7583
• Citation: 305 S.W.2d 713
• Parties: I_____, Plaintiff-Respondent, v. B_____, Defendant-Appellant. I_____, Plaintiff-Appellant, v. B_____, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 713

305 S.W.2d 713

I_____, Plaintiff-Respondent, v. B_____, Defendant-Appellant.

I_____, Plaintiff-Appellant, v. B_____, Defendant-Respondent.

Nos. 7583, 7615.

Springfield Court of Appeals, Missouri.

Oct. 11, 1957.

Lincoln, Lincoln, Haseltine, Forehand & Springer, Springfield, for plaintiff.

Barbour & Patterson, Springfield, for defendant.

RUARK, Judge.

In Case Number 7583 we are again called upon to decide as to the custody of a child. Because the future of that child may be affected by public printed record of the unsavory conduct of a parent, names are omitted.

As to the background: The father, plaintiff below, and mother, defendant below, were married in this jurisdiction about 1948. After the marriage they lived next door to the paternal grandparents. A girl child was born (age seven at trial date), and it appears that the paternal grandparents almost immediately took over the principal care, custody, and upbringing of this child. She has been with these grandparents more than with the parents throughout her life and she now resides with such grandparents. In 1952 was born a son (about five years old at trial time) who is the subject of this controversy.

When this child was six weeks old, the parents moved to another state. The paternal grandparents went along (though in a separate automobile). The two families established themselves in separate houses less than a mile apart in the same city.

In 1954 there was a separation apparently by agreement, the father (or the paternal grandparents) retaining care and custody of the little girl, and the mother taking the boy with her and returning to Missouri to live with her parents. Shortly after the mother left, the father sued for and obtained a divorce. Within a week after his decree was final he married another woman. This marriage lasted about three months and he and his second wife separated and were divorced. In the fall of 1955 the defendant mother took the little boy and went back to the father, and plaintiff and defendant were remarried. In April 1956, while the plaintiff father was at work, defendant 'picked up and left' and again returned to Missouri, taking the little boy with her. This time she left without previous discussion or knowledge on the part of the plaintiff. He says she signed his name to a check, without his knowledge, in order to get plane fare to return. He discovered she had left upon coming in from work that evening and learned by calling the home of her parents that she and the boy were back with her parents in Missouri.

Within sixteen days the plaintiff filed another suit for divorce against defendant, and interlocutory decree was obtained. The petition in that case did not pray for care and custody of the boy because, as the father says he was informed by his counsel, the state of his residence had no jurisdiction to award custody of the child resident with the mother in Missouri.

Shortly after obtaining his interlocutory decree, the plaintiff brought this action by the filing of a petition entitled 'Application for Custody of Child.' In this he charged the defendant as an unfit and improper person to have custody of the boy because she neglects him, screams and yells at him, and is running around with numerous men. The petition then charged the defendant with one recent specific act of immorality which we will refer to later as the 'hotel incident.' The petition further charged her with having shown no love and affection for her daughter (not the child in controversy here). He asserted his own fitness to have custody and prayed for such.

The answer asserted that, as to the girl, the plaintiff's parents took charge of her care and upbringing shortly after her birth and have kept it. That they (the paternal grandparents) moved to the state where they now live, along with the parents, and continued to retain care, custody, and control of the girl at the new place of domicile, but they have never (nor has the plaintiff) manifested any interest in the second child, the boy here involved. That the defendant and the boy now live with her parents, where he has a good and loving home with satisfactory environment.

In trial of this cause, plaintiff testified that while the parties were still living together the defendant frequently used obscene language toward the boy and toward the paternal grandmother. This grandmother testified that defendant had used such language toward her on one occasion, over the telephone. Plaintiff also produced witnesses who testified that frequently (on Saturday nights) in the period after the last separation the defendant, in company with others, usually with one certain woman and usually with different soldiers, would come into a certain cafe at times after midnight. One witness expressed it as 'after the bars had closed.' On these occasions her woman companion would be drunk and would act unseemingly, sufficiently so as to annoy men who were customers in the cafe. That on these occasions defendant would frequently be drinking but that she would sit down and behave herself and was not 'out of the way.' One witness testified to having also seen defendant in bars on two or three occasions. Another witness who worked at an all-night cafe testified that at 4:00 in the morning of the day before the trial of the case the defendant came to the door of this cafe and wanted to know if 'Jim' had been there. Defendant positively denied this occurrence. She testified that she was at such time working at another restaurant until 3:00 in the morning, but that the incident in regard to search for 'Jim' did not occur.

Plaintiff also introduced a series of eight letters apparently written by two of defendant's acquaintances and addressed to her during a period extending from November 1955 to March 1956 (this after defendant had returned to her husband and prior to the last separation). Defendant admitted that she got the letters, that one of the writers was a friend with whom she corresponded, the other an acquaintance she had associated with 'not much.' ¹ These letters indicate that a regular correspondence was continuing between the defendant and the writers. They refer to persons, places, and incidents in previous associations and recount some of the present doings of the writers. We do not wish to spread the content of these letters upon the printed page. Some of it is filthy. Suffice it to say that the principal refrain (in some of the letters) is soldiers and other servicemen, honky-tonks, liquor, and sexual relations. If they do not indicate loose moral habits on the part of the defendant, they at least attest to the fact that defendant had some dissolute friends and confidants and that at least one of them has morals on a par with those of an alley cat.

Plaintiff also called police officers to testify as to the 'hotel incident.' In order to avoid testimony in regard to the details of this incident, the defendant admitted for the record in substance the following facts: That within a month prior to the filing of the petition in this case the defendant (age twenty-eight) was caught by the police while resorting to rooms as husband and wife with a soldier from Fort Leonard Wood. This soldier was eighteen years old and of Puerto Rican descent. That defendant was arrested and that she thereafter forfeited her bond upon the charge against her made in this respect. By the admission of such incident defendant was able to keep out of evidence the details and circumstances surrounding such arrest and charge.

Plaintiff proved his good reputation in the locality of his Missouri residence for the period prior to his removal therefrom in 1952. He did not offer testimony concerning his reputation in the locality of his present residence. The defendant did not offer to prove good character on her part.

In respect to his plans and ability to care for the child, plaintiff testified that he is steadily employed and lives in a three-bedroom house with another man. He and this friend 'batch' and prepare their own meals but have a maid who comes in to clean once a week. He leaves for work at a quarter until seven in the morning and his regular work hours end at 4:00 p. m. His parents' house is 'on the way to work.' He works to a later hour two or three times a week, but when he does not work late (he says) he gets his daughter from his parents' home and has her with him in his home in the evenings. We gather from his testimony that she eats all of her meals with his parents and spends most of the nights with them, but that the father has her with him on occasions which are convenient and compatible with his work. He stated that his present plan, if he secures custody of the son, is to have both children stay with him at night, take them to his parents' home before breakfast in the morning on his way to work, and leave the children with such parents during the day, then pick them up in the evening and take them home with him. He said his ultimate plan is eventually to move in with his parents, but the grandmother, who testified, gave no indication of any knowledge of this plan. These paternal grandparents are approximately fifty years of age. The paternal grandfather is employed as a maintenance man in a mill. The paternal grandmother testified that she loved the boy; that she was willing to care for him and help with his rearing; that it was not her idea to take the child, but that she realized if her son got custody she would have to help in the child's upbringing, and this she would do. The reputation or willingness of the paternal grandfather is not shown. These paternal grandparents do not seem to have had close contact with the boy, as they have had with the daughter. This is about all the record contains concerning the paternal grandparents. The only thing we have which carries any indication concerning the character, home, and surroundings of these paternal grandparents is the fact that defendant has...