Jeans v. Jeans
| Decision Date | 12 July 1961 |
| Docket Number | No. 7961,7961 |
| Citation | 348 S.W.2d 145 |
| Parties | C. Rex JEANS, Plaintiff-Appellant, v. Patricia Jane JEANS, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
Stanley P. Clay, Emerson Foulke, Joplin, for appellant
Ralph Baird, Joplin, for respondent.
This appeal is from a judgment of the Circuit Court of Newton County, Missouri, rendered September 19, 1960, upon motions of both parties to modify a divorce decree.
Plaintiff and defendant were divorced in Newton County, March 2, 1954. Defendant was awarded a divorce on her cross-motion and granted alimony of $1,000 and monthly payments of $350 for the first 18 months, and, thereafter, $250 per month until her death or remarriage. Plaintiff was awarded care and custody of the three minor children with visitation rights to the defendant at reasonable times.
October 20, 1955, plaintiff filed motion to modify this original divorce decree asking permission to remove custody of the minor children from Missouri to Oklahoma. To this motion defendant filed answer and a cross-motion to modify asking that she be granted custody of the minor children with an allowance for support and that the monthly alimony provision be changed to alimony in gross.
On January 12, 1956, defendant filed a motion for suit money and attorney fees to defend in plaintiff's motion for modification. This motion was by the court sustained and plaintiff perfected an appeal from such action to the Springfield Court of Appeals where the trial court's judgment was reversed and remanded. See Jeans v. Jeans, Mo.App., 300 S.W.2d 870.
After this appeal plaintiff dismissed his motion to modify leaving pending defendant's cross-motion. Certain legal questions were raised in the trial court as to the validity of the original decree granting alimony. The trial court rendered judgment in favor of defendant and plaintiff, again, appealed to this court where this judgment was reversed and remanded for further proceedings. See Jeans v. Jeans, Mo.App., 314 S.W.2d 922.
After this appeal plaintiff filed answer to defendant's cross-motion and, later, on January 12, 1958, re-filed his motion to modify the original divorce decree on new and additional grounds, asking for permission to remove said minor children to his ranch in Oklahoma. To this cross-motion defendant filed answer and, thereafter, refiled her motion for attorney fees, which motion was taken up with the case and judgment rendered allowing defendant $600 for attorney fees.
Defendant's motion to modify is rather lengthy. The changed conditions allegd were:
That since the decree of divorce plaintiff has remarried to one, DeJean Burnett, who is now in active charge of the infant children and that they are actually in her care and custody; that said present wife and plaintiff, by various means, are attempting to and are alienating the affections of such children from defendant and attempting to establish in their minds a feeling that the present wife of plaintiff is their mother and to erase from their minds their natural love and affection for defendant.
That the children have not and are not now being treated with love and affection to which they are entitled, but have been and are now being abused and mistreated and raised under the atmosphere of fear and restraint and are dissatisfied and unhappy in their present home.
That plaintiff has violated the decree of the court giving her the right to have such children at reasonable times for visiting in her home; that plaintiff has ordered her to stay away from his home and has threatened to shoot her if she attempted to visit the children.
That at the time of the decree defendant had no home where she could care for said infant children but that she now maintains a home adequately furnished in Joplin and can properly and efficiently care for them.
That the present wife of plaintiff displays an antagonistic attitude toward defendant, refusing her the right to talk to the children over the telephone and to furnish defendant information concerning the health, welfare and location of them and has refused other information concerning them; that defendant has been refused by plaintiff the opportunity to have the children in her home in violation of his agreement and in violation of the spirit of the court's decree.
That plaintiff has displayed toward defendant a bitter and uncompromising attitude concerning the children and refuses to even discuss with defendant their welfare and best interest and tells her the children are none of her business; that this conduct on the part of plaintiff in failing to cooperate with defendant so that they would possess love and affection for both parents is harmful and derogatory to the best interest and welfare of the children.
That plaintiff, since the granting of the decree, has informed defendant that she should not participate in Parent-Teachers work.
That since the granting of the divorce decree, the major part of plaintiff's time is devoted to business activities and he is now unable to devote to such children the required attention they should have and that their care should be with their mother.
The motion alleges that defendant sustains a good moral character and is a fit and proper person to have care and custody of the children.
Since defendant has been denied modification as to alimony it is unnecessary to set out the allegations pertaining thereto.
Plaintiff's application for modification alleged: That since the decree of divorce plaintiff is no longer gainfully employed; that in the spring of 1955 he purchased a farm in Oklahoma in order to engage in stock raising business; that this will be his principal vocation in the future; that he has placed his residence in Newton County, Missouri, on market for sale; that the proposed residence in Oklahoma is accessible to good schools and churches; that the children will have advantage of pleasant and helpful rural life which will benefit them mentally, morally and physically; that plaintiff is willing for defendant to have the right of reasonable visitation as the court might provide and respectfully asks the court to permit him to remove the children from Missouri to Oklahoma and establish a permanent residence there.
Defendant filed answer denying the allegations alleged in plaintiff's motion to modify.
The cause was tried by the court October 19, 1959, and judgment rendered September 19, 1960. By this judgment the court sustained defendant's motion to modify as to the custody of the daughters, Terry Frances and Kris Irene, awarding defendant their care, custody and control during the school year, with leave to plaintiff to have them visit him at his ranch for one week end each month, for one-half of their Christmas holidays, and for at least six weeks during summer school vacations, if they so desire.
The court denied defendant's motion to modify as to the son, Michael Rex, and denied plaintiff's motion to modify as to the daughters but sustained plaintiff's motion and awarded him custody of the son and the right to take him to his ranch in Oklahoma upon condition that arrangements be made for the defendant to have him with her for week end visits, at least once a month, and requiring plaintiff to furnish surety to the court in the sum of $5,000 that he will arrange said visits when he moves to Oklahoma.
The court's judgment decreed that plaintiff furnish the court with surety in the amount of $5,000 for the peaceable return promptly to the state of Missouri, upon occasions when the daughters, or either of them, visit him in Oklahoma.
It decreed that plaintiff pay to defendant $125 per month for the support of each daughter, and, in addition, to pay defendant all medical, dental and hospital bills which may be incurred by said children.
The judgment decreed that defendant's motion to modify the decree as to the payment of alimony by denied and that plaintiff's motion to modify payments of alimony also be denied.
The decree sustained defendant's motion for attorney fees and allowed her the sum of $600.
The record contains some 398 pages of pleadings and evidence, together with numerous depositions and exhibits. We here state such part thereof as necessary for judgment on the issues presented.
Defendant testified that there was born of the marriage three children, Terry Frances, at trial date 15 years of age, Michael Rex, 13, and Kris Irene 11; that she lives in a furnished, two-story house in Joplin, for which she pays monthly rent of $50. She stated that plaintiff lives in the home she and plaintiff built, which is an extremely nice home.
Defendant's evidence is that during the time she was not receiving alimony she was employed at a weekly wage of $35 but that she is not now employed.
She stated that by the terms of the divorce decree she was given rights of visitation at reasonable times; that she and plaintiff have been unable to work out satisfactory understandings as to rights of visitation over the past several years. She gave this evidence:
'
She testified that it had been two years last June since Terry visited her; that at the last visitation of the children there was question about attending a show; that defendant and the three children wanted to go to the show but to do so would require the...
To continue reading
Request your trial
-
McCullough v. Hudspeth
...67 A.2d 595, 597 (1949); Commonwealth ex rel. Warner v. Warner, 156 Pa.Super. 465, 468, 40 A.2d 886, 887 (1945). Contra, Jeans v. Jeans, 348 S.W.2d 145, 158-59 (Mo.1961). We can perceive no sound reason why at this time we should reject the Finally, the father contends that requiring him to......
-
J-- G-- W-- v. J-- L-- S--
...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, In our inquiry as to whether or not there was a substantial and materi......
-
Good v. Good, 31821
...decree.' Defendant raised no question in the trial court regarding its authority to require a bond, and raises none now. See Jeans v. Jeans, Mo.App., 348 S.W.2d 145. The record shows that she filed the bond, with the Resolute Insurance Company as surety, and that it was approved by the In f......
-
Winter v. Crowley
...good woman does not give her the right to have the custody of her daughter, unless the welfare of the child requires it.'); Jeans v. Jeans, Mo.App., 348 S.W.2d 145 (some change in conditions, but not enough to warrant change in In accordance with the views above expressed the order appealed......