J-- G-- W-- v. J-- L-- S--

• Citation: 414 S.W.2d 352
• Decision Date: 31 March 1967
• Docket Number: No. 8547,8547
• Court: Court of Appeal of Missouri (US)
• Parties: J__ G__ W__, Plaintiff-Respondent, v. J__ L__ S__, Defendant-Appellant.

Page 352

414 S.W.2d 352

J__ G__ W__, Plaintiff-Respondent, v. J__ L__ S__, Defendant-Appellant.

No. 8547.

Springfield Court of Appeals, Missouri.

March 31, 1967.

William A. Moon, Springfield, for defendant-appellant.

Wayne T. Walker, Springfield, for plaintiff-respondent.

STONE, Presiding Judge.

This appeal brings for review a bitter contest concerning the custody of a boy N_ _, now six years of age, and a girl M_ _, now five years of age (hereinafter jointly referred to as the children), born of the marriage of plaintiff herein, the mother, and defendant herein, the father, which disintegrated in divorce on January 18, 1963. On that date, the mother voluntarily dismissed her petition for divorce, and the court entered a decree granting the father a divorce on his cross-complaint, and awarding major custody of the children to him with minor custody to the mother 'on weekends' and 'both parties to have the right of reasonable visitation.'

The present proceeding was instituted on September 8, 1965, by the filing of the mother's motion to modify in which she averred, inter alia, that at the time of divorce she had no income and no place to keep the children; that 'defendant (the father) agreed to and did keep said children with his mother, who was a fit and proper person'; that the father subsequently married a woman (hereinafter frequently referred to as the stepmother) who had two children; that the living quarters provided by the father for the children and the stepmother's children, four in all, are inadequate; that the stepmother 'mistreats her stepchildren' and they 'have become emptionally upset, nervous and dissatisfied'; that the mother also has remarried and her husband (hereinafter frequently referred to as the stepfather) is 'a person of good character' who is willing and anxious for the mother to have full care and custody of the children; and that the welfare of the children would be served by granting full custody to the mother with a reasonable sum for child support.

In his answer to the motion to modify, the father generally denied that 'the circumstances have materially changed' since entry of the original decree, specifically negated most of the averments in the mother's motion to modify, alleged that the mother's 'own actions,' while the children were with her on weekends, caused them 'to be nervous and upset upon being returned' to the father, and prayed the court not only to deny the mother's motion but also to grant affirmative relief by deleting from the original decree the provision for the mother's minor custody on weekends and granting to the mother, in lieu thereof, the right of reasonable visitation.

After hearing, the trial court entered judgment finding the issues in favor of the mother, sustaining her motion to modify, awarding her full care and custody of the children with the right of reasonable visitation to the father, and ordering the father to pay $20 per week as child support and $200 as an attorney's fee. On this appeal by the father, his position is that 'the evidence of the (mother) shows some change in conditions but it is far short to warrant modification of the decree and awarding custody of the two children to (the mother).' We approach the record, mindful of the applicable principle that, although proof of a change of condition is a prerequisite to modification of a custodial order (Simmons v. Trenter, Mo.App., 327 S.W.2d 936, 939(4); Lewis v. Lewis, Mo.App., 301 S.W.2d 861, 863(3)), '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 Shreckengaust, 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).' (All emphasis herein is ours.) Hurley v. Hurley, Mo.App., 284 S.W.2d 72, 73--74(3); McCoy v. Briegel, Mo.App., 305 S.W.2d 29, 39(18). See Thomas v. Thomas, Mo.App., 357 S.W.2d 208, 210(2); Jeans v. Jeans, Mo.App., 348 S.W.2d 145, 154--155; Birrittieri v. Swanston, Mo.App., 311 S.W.2d 364, 367(2).

In our inquiry as to whether or not there was a substantial and material change of condition affecting the welfare of the children subsequent to entry of the divorce decree of January 18, 1963, it becomes appropriate to ascertain first what condition existed at that date. Garbee v. Tyree, Mo.App., 400 S.W.2d 193, 195--196(3); S_ _ v. G_ _, Mo.App., 298 S.W.2d 67, 76(8). The father then was only twenty-four years of age, the mother just twenty-one. Although their material possessions were of relatively small value, the parties entered into a 'Property Settlement Agreement,' the only portion of interest here being 'that (the father) is a fit and proper person to have the care and csutody of the minor children of the parties' and that, subject to approval of the circuit court, the father should have their major custody with the mother to have the children 'on Saturday and Sunday of each week' and with each party to have reasonable visitation rights while the children were in the custody of the other party. As we have seen, that was the custodial arrangement embodied in the divorce decree.

Upon trial, the mother explained that her acquiescence in this custodial arrangement was a product of necessity. In her words, 'I had no choice. I wasn't working . . . I had no way to keep the kids, no money, no place to take them. My folks were divorced, my mother was sick . . . she couldn't help me care for them.' In her fleeting appearance on the witness stand, the maternal grandmother explained that she had been in the hospital 'with a nervous breakdown . . . was taking two and three shots a week for my nerves . . . was taking tranquilizers at the sme time' and that she was neither physically nor financially able to care for the children. Other evidence suggested that the maternal grandmother had both alcoholic and psychiatric problems.

The mother insisted that she had consented to the father's major custody of the children because of his oral agreement that the paternal grandmother, whom the mother recognized as 'a fit and proper person,' would care for the children. Although the father denied any such oral agreement, for a considerable period of time after the divorce both the father and the children did reside with his parents and, in fact, the paternal grandmother did care for the children. Upon trial, the mother had no complaint about the conduct of the paternal grandmother--she 'was always nice' and 'there wasn't any trouble at all.' As indicating the mother's alleged want of interest in the children during that interval, the father testified that the mother took the children only 'maybe a third' of the weekends, and the paternal grandmother estimated that the mother 'missed a third.' The mother, agreeing with counsel that she had taken the children only 'about a third of the time when (she) should have (had) them,' offered the explanation that was so 'because when I got there, they weren't home, that's why.'

One L_ _, then twenty years of age, who later became the stepmother of the children, first entered the picture in October 1964 when she, together with her two sons 'very near the same ages' as the children, moved into a two-bedroom home on K_ _ Street about six or seven blocks from the home of the paternal grandparents in one of the larger cities within our territorial jurisdiction (hereinafter referred to as the city). From that time forward, the father, already acquainted with L_ _, who was married but not living with her husband, began to take the children to L's house where (as the father put it) 'she baby-set for me.' 'They (the children) stayed there a lot,' virtually every day; and, although 'it wasn't regular practice' for the children to remain overnight, sometimes they did. The father himself was at L's house almost every day and every evening, sometimes until a late hour but (so he insisted) never 'all night,' even though his automobile at times remained outside her house overnight--a circumstance explained by L_ _ as resulting when she would need transportation the following day and the father would leave his automobile at her house, walk home in the evening, and 'catch a ride to work the next day.' In any event, both the father and the children were at L's house so much of the time that L's next-door neighbor, called as a witness for the father, thought that the children and L's two sons were 'all brothers and sisters' and assumed that the father and L_ _ were married--'if they wasn't married, I didn't know it.' During this period, the father and L_ _ occasionally went to stock car races and cafes and, on one Sunday in 1964, to 'a night club' or beer tavern. When the mother's counsel suggested that 'you (L_ _) were doing things that weren't quite accepted by society,' L_ _ retorted 'I was separated, and I feel that I had the right to do as I pleased . . . I am not the only person who has.'

During April 1965, L_ _ and her two sons moved from the house on K_ _ Street in the city to her mother's home in a small town some fifteen miles distant (hereinafter referred to as the small town); and, 'because of difficulties' in the mother's home, during June 1965 L_ _ and her sons moved to another address in the small town. It is not clear how frequently the children were with L_ _ during the period of her residence in the small town, but we are told that she did keep them overnight 'once or twice' and that the father visited her 'almost every night.' On July 3, 1965, L_ _'s marriage was terminated by a decree of divorce entered in another county; and on August 7, 1965, L_ _ became the stepmother of the children by virtue of her marriage to the father. The...