In re Leete

• Citation: 205 Mo. App. 225,223 S.W. 962
• Decision Date: 03 July 1920
• Docket Number: No. 17047.,17047.
• Parties: In re LEETE et al.
• Court: Court of Appeal of Missouri (US)

223 S.W. 962

205 Mo. App. 225

In re LEETE et al.

No. 17047.

St. Louis Court of Appeals. Missouri.

July 3, 1920.

Separate Opinion, July 15, 1920.

In the matter of the original petition of Theodore C. Leete for a writ of habeas corpus against George Olive Ames Leete to obtain the custody of the minors, Theodore Bradford Leete and Helen Ames Leete. Judgment for petitioner.

This is an original proceeding in habeas corpus, whereby the petitioner, Theodore C. Leete, seeks to obtain the custody of his two minor children, Theodore Bradford Leete and

Helen Ames Leete. The respondent is George Olive Ames Leete, the mother of said children.

The petition for the writ alleges that on August 15, 1910, the petitioner was lawfully married to the respondent, and that petitioner and respondent resided as husband and wife at Longmeadow, in the county of Hampden, commonwealth of Massachusetts; that there were born of said marriage, in Massachusetts, two children, namely, Theodore Bradford Leete, born September 18, 1911, and Helen Ames Leete, born March 3, 1913; that on or about June 26, 1918, petitioner and respondent separated in Massachusetts, and on November 19, 1918, by a decree of the superior court of the commonwealth of Massachusetts, in and for the county of Hampden, a court of general jurisdiction having jurisdiction of the parties and of the subject-matter of said proceeding, in a libel brought by this respondent against this petitioner, a decree of absolute divorce was granted to the former, which decree became absolute on May 19, 1919; that on said November 19, 1918, it was by said court ordered, adjudged, and decreed that this respondent have the custody and control of said children from September 1, 1918, until September 1, 1919; and that thereafter, subject to the further order of said court, she and this petitioner have alternately the custody and control of said children during the successive years thereafter, beginning September 1, 1918, and continuing during the minority of each of said children.

The petition further alleges that on August 28, 1919, respondent filed a petition in said superior court of the commonwealth of Massachusetts, in said county of Hampden, in the aforesaid proceeding, praying the court to so far alter its said decree as to give the custody of said children to this respondent during their minority, setting up that this petitioner had remarried and that he then resided in the state of Connecticut. And the petition before us avers that on December 12, 1919, a final decree was entered by said court whereby the decree theretofore entered, to wit, on November 19, 1918, was modified in this, that it was decreed that the said children should be forthwith delivered over by the respondent to this petitioner at the Hotel Kimball, in the city of Springfield, Mass., to be retained by this petitioner until September 1, 1920, whereupon they were to be by petitioner given over, at said Hotel Kimball, to respondent, to be retained by her until September 1, 1921, then to be returned by her to petitioner, "and so on alternately in alternate years until said children should become of age."

The petition further alleges that petitioner has in all respects complied with the original decree of said court and the said modification thereof, but that the respondent, the mother of said children, has refused to carry out the terms of said decree, as modified, and refused to deliver the children to the petitioner at said Hotel Kimball, in Springfield, Mass., or elsewhere, but has retained them and has brought them from the commonwealth of Massachusetts to the state of Missouri, where she is now residing and where she has the custody of said children.

The petition further alleges that, disregarding the decrees aforesaid, respondent, without petitioner's knowledge or consent, removed the children from Massachusetts to the city of New York, and then took them to Chicago, Ill., in an automobile occupied, driven, and controlled by a married man named Howard E. Spaulding; that said Spaulding is and was at the time separated from his wife and involved in marital difficulties, was a man of about the same age as respondent, and "with whom she had theretofore been wrongfully keeping company"; that at Chicago, Ill., the children were kept in the custody and control of respondent and said Spaulding at the Morrison Hotel, where they remained "at least ten days, including Christmas of 1918"; that thereafter said Spaulding, respondent, and the children came to St. Louis, where they resided at the Hamilton Hotel in said city from about January 1, 1919, until April, 1919, during which time the children were kept in the company of said Spaulding and respondent, and where he and respondent associated together in the presence of and with the knowledge of the children, as well as when the latter were not present; that about April 1, 1919, Spaulding rented a dwelling house in University City, St. Louis county, paying the rent and expenses thereof, and that he, respondent, and the children lived there until about September 5, 1919, during which time he was constantly associated with respondent, and he and respondent had the children in their company, not only at said house, "but frequently driving and on other occasions"; that about the date last mentioned Spaulding and respondent left said dwelling "and installed themselves and the children at the Buckingham Annex, in St. Louis, Mo.," where they have since resided; that if said Spaulding and respondent do not occupy the same rooms they occupy adjoining rooms, and they and the children are in constant association; that the wife of Spaulding resides in the city of St. Louis, and that he and his wife "have now a divorce suit pending in the circuit court of the city of St. Louis, and that one of the complaints therein is the improper relations that have existed and are existing between respondent and said Spaulding, "which atmosphere the aforesaid children have been forced to breathe since the automobile tour inaugurated in New York, and in which improper and unfit atmosphere these children are being reared"; that respondent and these children are being, in large part at least, supported and maintained by said Spaulding that respondent declines to permit the children to communicate with the petitioner, has never revealed to petitioner the whereabouts of herself and children, and has at all times disregarded the aforesaid decrees and has prevented the children from seeing and visiting petitioner; that respondent is unfit to have the care, custody, and control of the children; that the present environment in which the children are living is detrimental to their proper education, general welfare, and moral uplifting; and that the petitioner is able to provide and will provide a good home for them.

And it is alleged that the children are now in the custody of respondent at said Buckingham Annex, in the city of St. Louis, and that said Spaulding is treated by respondent as though he were the father of said children, and that "all of the aforesaid tends to alienate the affections of said children from petitioner."

Following a formal allegation to the effect that no application for the relief herein set forth has been made to or refused by any superior court or officer, the petitioner prays that the writ be issued to respondent directing her to produce said children before this court, and that the court award the custody thereof to petitioner, in accordance with the terms of the said decree of the superior court of the commonwealth of Massachusetts of November 19, 1918, and the modification thereof, of date December 12, 1919.

Upon the filing of this petition, our writ of habeas corpus issued, and in due course the respondent filed her return. The return does not controvert the facts alleged in the petition regarding the divorce proceeding, the decree alleged to have been entered therein, and the subsequent modification thereof. Likewise there are other allegations of the petition not controverted by the return. The return avers that both of said children have been, since their birth, in the custody and under the control of the respondent; "that for a long time past the said Theodore Bradford Leete suffered from infantile paralysis, but under the watchful eye of his mother has constantly improved until to-day he appears to be nearly cured; that as a result of this sickness said child has developed a fretful disposition and requires affectionate handling in order to develop and bring out the best that is in him;" that"respondent has always entertained for her said children the greatest love, affection, and consideration, and has in return been loved, respected, and obeyed by them, and that at no time has she encouraged them to dislike, hate, or show disrespect for their father, the petitioner; but that petitioner has at no time treated the children with great consideration and affection.

The return further sets up that the respondent is maintaining the children in comfortable quarters in the Buckingham Annex, fat the city of St. Louis, and is able to continue so caring for them; that they attend school daily and Sunday school regularly, and have been properly clothed; that they are kept in good company; and that respondent, their mother, bears a good reputation for truthfulness, honesty, and morality, not only among the people with whom she associates in the city of St. Louis, but likewise among the people with whom she associated in Longmeadow, Mass. And it is alleged that at no time since the granting of the divorce has the petitioner ever appeared in the city of St. Louis to visit the children, or has he contributed anything to their support and education, or given them any gifts or remembrances, and that this proceeding is not taken by the petitioner for the purpose of giving him the care and custody of the children, but of giving petitioner's mother the care and custody...