Lambert v. Lambert
| Decision Date | 21 June 1949 |
| Docket Number | No. 27596.,27596. |
| Citation | 222 S.W.2d 544 |
| Parties | LAMBERT v. LAMBERT. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; Waldo C. Mayfield, Judge.
"Not to be reported in State Reports."
Divorce action by W. C. Breckenridge Lambert against Jeanne Marguerite DuBois Lambert. From judgment modifying a decree of divorce as it related to the custody and support of the infant daughter of the parties, the plaintiff appeals.
Reversed and remanded with directions.
Murphy & Bloom, St. Louis, for appellant.
R. Walston Chubb, Philip A. Maxeiner, and Lewis, Rice, Tucker, Allen & Chubb, all of St. Louis, for respondent.
WOLFE, Commissioner.
This is an appeal by the plaintiff from an order modifying a decree of divorce as it relates to the custody and support of the infant daughter of the parties.
The original decree entered in July of 1946 granted a divorce to the defendant on her crossbill and awarded the custody of the daughter, who was then about fifteen months of age, to the defendant's parents. It provided that the plaintiff should have temporary custody of his daughter from 3 p. m. Saturday to 6 p. m. Sunday each week end and on alternate holidays throughout the year from 9 a. m. to 6 p. m. There was an additional provision that he should have the child during his summer vacations not to exceed thirty days in any one year.
Prior to the hearing of the divorce case the parties had stipulated, subject to the court's approval, that the custody of the child should be granted to the wife's parents but the periods of temporary custody were not agreed upon and the court fixed the times that the father might have the child with him, without the aid of any agreement.
A motion to modify the decree was filed by the defendant. She stated in it that she had lived with her parents at all times since the divorce and that she had exercised full control over her child except for the periods of temporary custody enjoyed by her former husband. She further stated in the motion to modify that the stipulation upon which the court awarded custody of her daughter to the maternal grandparents was entered into in order to avoid a controversy with her husband. He was maintaining at the time of the divorce that the condition of his wife's health rendered her incompetent to have custody of their daughter. The modification sought was a change of custody to the defendant and the elimination of periods of temporary custody in the plaintiff except for two weeks during the summer months.
The plaintiff filed a reply to the defendant's motion and he also moved to modify the decree requesting that he be given the custody of the child. He stated in his motion that the defendant had suffered from a mental disorder which was recurring in nature and that the safety and welfare of the child would be jeopardized if custody was awarded to her.
To this motion defendant replied, denying that she suffered from any mental disorder and requesting that the plaintiff be allowed only the right to visit the child at reasonable times in her home. The reply concludes: "* * * defendant respectfully withdraws that portion of the prayer of her original motion herein to require plaintiff to pay for maintenance and support of the said minor child."
On March 19, 1948, it was agreed between the parties by their attorneys that the motions should be peremptorily set for hearing on June 2, 1948, and a memorandum to that effect was filed with the clerk. Upon the call of the case counsel for the plaintiff stated to the court that he was not ready for trial and orally requested a continuance. He said that he had only been associated with other counsel in the matter and that the plaintiff was actually a client of Mr. Goodbar, who was out of town. He stated that he had assumed by reason of conversations with defendant's counsel that hospital records would be made available but he learned on May 19 that they would not be. He also stated that the failure of the plaintiff to produce the records would require the taking of depositions in Milwaukee, Wisconsin, and Switzerland. Defendant's counsel denied that anything had been said that might have misled plaintiff's counsel and after considerable argument on the question of continuing the hearing, the court indicated that the request would be denied. Plaintiff's counsel then announced to the court that he would take no further part in the proceeding but asked leave to file an affidavit for continuance. He left the courtroom and the court proceeded to hear the defendant's evidence in support of her motion.
The evidence that she offered was the testimony of her mother and father, who both asked to be divested of the child's custody and requested that it be given to their daughter. They asserted that she had always had full control of the child's care and upbringing. Friends and acquaintances testified that the child's mother was an accomplished person in the rearing and care of her daughter.
A physician testified that he had examined the defendant over an extended period of time and studied her past medical history. He concluded that she had had "a confusional state, which is very common following childbirth," and that she was a person of superior intelligence and emotional balance without any indication of a chronic or recurring mental illness.
The defendant testified that the plaintiff refused to discuss any matters relating to the child with her and that all negotiations respecting minor things that arose had to be done through their attorneys. She stated that the week ends that the child spent with the plaintiff upset it. She had taken notes on the child's conduct after its return from visits with its father. The notes generally asserted that the child was tired, cried in her sleep, wouldn't take a nap, was nervous and overwrought, and there was an occasional notation of a digestive upset. She also testified that the child did not want to leave her to go with the father and that the nervousness and temper that it displayed upon its return was not its normal conduct. There was corroboration of some of this by other witnesses.
Defendant's father had set up an irrevocable trust fund for the care and education of the child and he testified that the plaintiff was at the time of the hearing unemployed, but that he had previously been employed at a salary unknown to the witness which he presumed to be about four thousand dollars a year.
Upon this evidence the court granted the defendant's motion to modify the decree and awarded custody of the child to her. The decree was further modified in that it limited the father to temporary custody of the child from 12 noon on Sunday to 7:30 p. m. on the same day and directed payment by him of twenty-five dollars per week to the defendant for the support and maintenance of the child. It also granted the defendant the right to remove the child from the state of Missouri for thirty days during the summer months and dismissed the...
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