Kraus v. Kraus

• Decision Date: 16 February 1903
• Citation: 72 S.W. 130,98 Mo. App. 427
• Parties: KRAUS v. KRAUS.
• Court: Missouri Court of Appeals

72 S.W. 130

98 Mo. App. 427

KRAUS v. KRAUS.

Court of Appeals at Kansas City, Missouri.

February 16, 1903.

DIVORCE—SUPPORT OF INFANT CHILD—ISSUE AS TO PATERNITY—EVIDENCE.

1. Evidence in a proceeding to modify a decree requiring a divorced father to make monthly payments for the support of an infant child, consisting in part of the father's allegations in the cross-bill that the child was his, considered, and held to support a finding of the father's paternity, rather than to show the child a foundling, fraudulently imposed on him as his own.

Appeal from circuit court, Jackson county; James Gibson, Judge.

Suit for divorce by Lulu E. Kraus against Samuel Kraus. On petition to modify a decree requiring monthly payments from defendant for the support of an infant child. From a judgment refusing modification, defendant appeals. Affirmed.

Beardsley, Gregory & Kirshner, for appellant. S. S. Gunlack, for respondent.

BROADDUS, J.

This suit is on a petition to modify a decree rendered by the circuit court on the 13th day of January, 1899, wherein the same adjudged the care and custody of an infant male child, then 22 months old, to the mother, Lulu E. Kraus, said child having been born during the marriage relations between plaintiff and defendant, and awarding that defendant pay to plaintiff on the 1st day of each month the sum of $15, to be used for the care and keeping of said child, said payments to continue until it reaches the age of 6 years, if it should live so long and remain in the care and custody of plaintiff, at which time the court might make such further order affecting the maintenance of said child as shall then be deemed right. The grounds of the petition are that said child is neither the progeny of the plaintiff nor that of the defendant and that plaintiff fraudulently, at the time of its supposed birth, imposed said child upon defendant as that of her own, when in fact it was a foundling of unknown parentage. The defendant complied with the order of court, and made the monthly payments for the care and custody of the child until the month of March, 1901, at which time he claims he learned that it was not born of the wedlock between himself and the plaintiff, when he discontinued such payments. One of the principal witnesses was one Amelie Bethman, who stated that about the 2d day of March, 1897, she went to defendant's residence in Kansas City, Mo., at which time she saw the plaintiff and a Miss Ritter, a hired girl. Plaintiff then told her that she (plaintiff) must have a baby, as her husband thought she was pregnant; that she had padded herself with cotton to lead him to so believe; and that, as her husband did not treat her well, she thought, if she could get a child, he would treat her better. Said witness further testified that she looked about a week without finding a child to suit her; that, after having had a talk with Miss Ritter, the servant girl, she went to a certain house on East Twelfth street, to see about a baby there, and from thence she went to plaintiff, and told her how the baby looked, whereupon plaintiff gave her a cape and a shawl; that she then went and got the baby from the Twelfth street house, placed it under the cape, and carried it to the plaintiff, and put it in a bed; that plaintiff then went to bed; that the woman from whom she got the baby was a midwife; that at about 4 o'clock p. m. defendant came home, and saw the child; that she came regularly in the morning for nine days to look after the baby, during which time plaintiff was up and around the house; that the child appeared to be four or five days old when she first saw it; and that she, as a midwife, reported the birth of the child as that of plaintiff and defendant. One Emma Hayden, also a midwife, testified that she was the person who furnished a young baby to the said Bethman in 1897 from her house in Kansas City, at which place she was living. Mary Ritter, the house girl named, testified that she went at plaintiff's request to Mrs. Bethman for the purpose of obtaining an infant, and made an appointment for a meeting between them; that she was not present at such meeting, but that Mrs. Kraus told her that the Bethman woman had promised to bring her a baby soon; that at this time plaintiff began to make preparations to deceive her husband, and make him believe she was with child; that in about two weeks thereafter Mrs. Bethman brought the child in question; that after the child appeared, and at about 3 o'clock p. m. of the same day, at plaintiff's request, she went to a grocery store, and telephoned defendant to come home; that he came shortly thereafter, and asked witness how she got Mrs....