In re Perkins

• Decision Date: 07 June 1938
• Citation: 117 S.W.2d 686,234 Mo.App. 716
• Parties: IN THE MATTER OF GEORGE THOMAS PERKINS, JR., GEORGE THOMAS PERKINS, SR., APPELLANT, v. THOMAS J. BROWNLEE AND KATHRYN SUTOR BROWNLEE, HIS WIFE, RESPONDENTS
• Court: Missouri Court of Appeals

117 S.W.2d 686

234 Mo.App. 716

IN THE MATTER OF GEORGE THOMAS PERKINS, JR., GEORGE THOMAS PERKINS, SR., APPELLANT, v. THOMAS J. BROWNLEE AND KATHRYN SUTOR BROWNLEE, HIS WIFE, RESPONDENTS

Court of Appeals of Missouri, St. Louis

June 7, 1938

Appeal from the Circuit Court of the City of St. Louis.--Hon. Robert W. Hall, Judge.

Judgment reversed and cause remanded.

Clark M. Clifford for appellant, George Thomas Perkins.

(1) Sec. 14074, R. S. Mo. 1929; Rochford v. Bailey et ux., 322 Mo. 1155, 17 S.W.2d 941, l. c. 944. (2) Shepherd v. Murphy, 332 Mo. 1176, 61 S.W.2d 746; Child's Saving Institute v. Knobel, 327 Mo. 609 37 S.W.2d 920; Thompson v. Arnold, 208 Mo.App. 103 230 S.W. 322; 1 C. J. 1387; In re Norris, 283 N.Y.S 513; In re: Mark's Adoption, 287 N.Y.S. 800; Matter of Bistany, 239 N.Y. 19. (3) Thompson v. Arnold, 208 Mo.App. 103, 230 S.W. 322; Child's Saving Institute v. Knobel, 327 Mo. 609, 37 S.W.2d 920; In re Norris, 283 N.Y.S. 513. (4) In re Province's Estate, 4 Pa. Dist. 591. (5) Wigmore on Evidence (2 Ed.), 1063; 6 C. J. 649, sec. 157; Baldassare v. Federal Union Life Ins. Co., 268 Ill.App. 243.

William W. Crowdus for respondents.

(1) Sec. 14074, R. S. Mo. 1929; Child Savings Institute v. Knobel (Mo.), 37 S.W.2d 920, l. c. 925; Thompson v. Arnold, 230 S.W. 322, l. c. 324; In re Snow's Adoption, 41 S.W.2d 627. (2) Rankin v. Rankin, 83 Mo.App. 335; Bennett v. Robinson, 180 Mo.App. 56; Waller v. Mortz, 294 S.W. 420; Meyers v. Meyers, 91 Mo.App. 151; Kelly v. Kelly, 329 Mo. 992, 47 S.W.2d 762, 81 A. L. R. 875. (a) A father's liability for support of his minor child is not affected by the fact that he has offered and is willing to take the custody of the child. Kelly v. Kelly, 329 Mo. 992, l. c. 999, 47 S.W.2d 762, 81 A. L. R. 875. (3) Sec. 14073, R. S. Mo. 1929. (4) 6 C. J. 637; 22 C. J. 393; 3 Jones, Commentaries on Evidence (2 Ed.), pp. 1939, 1944 and 1945; Alminowicz v. The People, 117 Ill.App. 415; Miene v. The People, 37 Ill.App. 589; Fuller v. Hampton, 5 Conn. 416; Dunlap v. Montana-Tonopah Mining Co., 192 F. 714, l. c. 716, affirmed in 196 F. 612; R. R. Co. v. Stone, 78 Kan. 505; Snow v. Batchelder, 62 Mass. 513 (8 Cush. Rep.); Ole Person v. Thomas Bowe, 79 Minn. 238, l. c. 239; Eastman v. Co., 44 N.H. 143; Brown v. Hebb (Mo. App.), 175 A. 602. (a) Broyles v. Achor, 78 S.W.2d 459. (5) Broyles v. Achor, 78 S.W.2d 459, l. c. 462; Bradley v. Page, 46 S.W.2d 208; U. S. v. Gamble-Skogmo (U. S. Cir. Ct. of App., 8th Cir.), 91 F.2d 372. (a) Skinner-Kennedy Stationery Co. v. Lammert Furniture Co., 166 S.W. 1079, l. c. 1080; Barton Lbr. Co. v. Gibson, 161 S.W. 357, l. c. 358. (b) On evidence fairly justifying either of two inferences the decision of the trial court must prevail. Oellin v. Galt, 131 S.W. 158; U. S. v. Gamble-Skogmo, 91 F.2d 372, l. c. 374. (c) The appellate court is not justified in weighing conflicting evidence. Biggerstaff v. Hoyt, 62 Mo. 481; Wells v. Western Union Tel. Co., 262 S.W. 70; City v. Senter Comm. Co., 335 Mo. 489, 73 S.W.2d 389; U. S. v. Gamble-Skogmo, 91 F.2d 372, l. c. 374. (d) Reviewing courts should defer to trial court's decision on facts, trial court having observed witnesses. Dawes v. Williams, 40 S.W.2d 644, 328 Mo. 680; Klebba v. Strumpf, 23 S.W.2d 205; Oellin v. Galt, 131 S.W. 158, l. c. 160. (6) In re Snow's Adoption, 41 S.W.2d 627; Thompson v. Arnold, 230 S.W. 322, l. c. 324; In re Blackburn, 41 Mo.App. 622.

BENNICK, C. Hostetter, P. J., and McCullen, J., concur; Becker, J., not sitting.

OPINION

BENNICK, C.

This is an appeal by the natural father from the decree of the Juvenile Division of the Circuit Court of the City of St. Louis sustaining the respondents' petition for permission to adopt his minor son.

With the father not consenting to the adoption but instead opposing it with all the force at his command, the chief issue at the hearing below was whether he had neglected to provide proper care and maintenance for his child for the two years last preceding the date of the filing of the petition. Under the statute (Sec. 14074, Revised Statutes of Missouri, 1929 [Mo. Stat. Ann., sec. 14074, p. 823]) this is one of the contingencies which dispenses with the necessity for obtaining the consent of a parent of a child as a condition to the court's right to decree its adoption by a person or persons petitioning therefor.

The appellant is Dr. George Thomas Perkins of San Antonio, Texas, while the petitioners are Thomas J. Brownlee and Kathryn Sutor Brownlee, his wife, who reside in the City of St. Louis. Mrs. Brownlee was formerly the wife of appellant, and it was of their marriage that the child in question, George Thomas Perkins, Jr., was born. Subsequently Dr. Perkins obtained a decree of divorce from his wife under circumstances which will presently appear, and thereafter she married Mr. Brownlee, with whom she has joined in this proceeding for the adoption of George Thomas Perkins, Jr., as their child.

The evidence discloses that appellant and Mrs. Brownlee were secretly married on April 23, 1929, while both were students at Washington University in the City of St. Louis. Appellant was enrolled in the dental school, preparing himself for the dental profession so that upon his graduation he might become associated with his father who was a practicing dentist in San Antonio. Mrs. Brownlee was then Kathryn Sutor, the daughter of Mr. and Mrs. D. M. Sutor, who reside within the metropolitan area of the City of St. Louis.

Upon appellant's graduation from the university in June of 1929 he at once entered upon the practice of his profession in San Antonio, while his wife remained in St. Louis for the time being without the fact of their marriage having been revealed. However he shortly came back to St. Louis for a formal wedding which was arranged, and at the conclusion of this his wife accompanied him to San Antonio where they furnished an apartment and set up housekeeping with the expectation of making San Antonio their permanent home.

It appears that when appellant first started up in practice he was quite successful and did well financially, but that the depression soon came on, causing his practice to fall off and his earnings to be materially decreased. Indeed the business decline beginning with the fall of 1929 is a matter of current history, and appellant was unfortunately in a position to feel its effect almost immediately on account of indebtedness he had been compelled to incur at the very outset of his career in connection with the purchase of furniture for his apartment and dental equipment for his office. Then on December 2, 1930, his son, George Thomas Perkins, Jr., was born, and with the family expenses thereby increased and appellant's obligations to his creditors becoming steadily more difficult to meet, the point was soon reached where both young people came to realize that some drastic step would have to be taken if appellant should hope to get out from under the burden of his debts.

The decision arrived at, even according to Mrs. Brownlee's own testimony, was "that it would be better if I would go home on a visit and take the baby with me, and that we break up housekeeping, and he (appellant) stay with his family until he got his debts paid."

With this in view appellant wrote Mr. Sutor on February 17, 1931, informing him of the conclusion that he and his wife had come to, and asking for Mr. Sutor's opinion in the matter so that if the plan met with his approval the necessary arrangements could be made to put it into effect. He also advised Mr. Sutor that he had taken up with his local bank the matter of negotiating a loan in order to enable him to take care of his debts of long standing, and had been told that the indorsement of two property owners would be required upon his note. His own father was to be one of his endorsers, and he inquired of Mr. Sutor whether he would do him the favor to be the other one. Appellant's idea was that if both he and his wife should return to their respective parents' homes for the time being as they had mutually agreed to do, the resulting reduction in his current expenses would enable him to pay off his loan at the bank at the rate of $ 100 a month.

Mr. Sutor replied to appellant's letter, graciously advising that he would be more than glad to have his daughter and grandson come into his home and remain as long as necessity should demand, but cautioning appellant that once the step was taken, it would be necessary that appellant should permit them to remain "without complaint and without fuss" until such time as he might be able to get his affairs in shape. He also stated that while he expected appellant to provide for their transportation to St. Louis, after they reached St. Louis he (Mr. Sutor) would "take care of them for their living and necessitates." As regards the matter of the loan from the bank, he informed appellant that he would be willing to go on his note for a sum not to exceed $ 800, and also stated that he regarded appellant's plan as a very wise one, and one which many men in his position and at his age would not have the courage to undertake.

On February 25, 1931, appellant again wrote Mr. Sutor, informing him that the bank had refused the loan upon the ground, among others, that it did not make loans that were to be paid in installments, but advising that his wife would come to St Louis as planned some time around the middle of March. He then stated that "the visit will do her good I know but as for Tommie he will probably miss playing with his old Dad. For every afternoon when I go home we always have a friendly fight. He's a rowdy little devil for he kicks and moves his mitts around like nobody's business." With regard to his financial affairs, he expressed his thanks to Mr. Sutor for...