Lewis v. Lewis

Decision Date07 May 1957
Docket NumberNo. 29641,29641
Citation301 S.W.2d 861
PartiesPauli Renfrew LEWIS, now Pauli Scharff, Plaintiff (Appellant), v. Robert David LEWIS, II, Defendant (Respondent).
CourtMissouri Court of Appeals

Paul Brackman and Brackman, Oetting & Brackman, Clayton, for appellant.

John M. Hadley and Carter, Bull & Baer, St. Louis, for respondent.

MATTHES, Judge.

This is a proceeding on motion of defendant father to modify a divorce decree with respect to the two boys of the parties. Plaintiff, the mother, has appealed from the order which granted defendant partial custody.

Plaintiff was divorced from defendant on February 20, 1953. The decree awarded her the custody of the boys, Robert and James, who are now eight and ten years old, subject to 'reasonable rights of visitation', and temporary custody 'one summer month each year'.

Defendant remarried in April, 1954. Shortly thereafter a voluntary arrangement was entered into between plaintiff and defendant whereby the custody of the boys was given to the defendant every other week from Friday evening until Sunday evening. The present wife of defendant is the mother, by a previous marriage, of two girls nine and twelve years old, and two boys seven and eleven years old. Mr. Matthews, the father of the four children, has them in his custody on alternate week-ends. Whether as the result of design or otherwise, the fact is that the boys here involved were in defendant's home during the same week-ends that the Matthews children were there. Defendant and his present wife also have a child who, at the time of the hearing in the trial court on March 2, 1956, was a baby eight months old. Plaintiff became dissatisfied with the custody arrangement. Her objection did not go to defendant's right to partial custody, but rather to the time such right was exercised. In short, she felt that her sons should not be in their father's home when the Matthews children were present. This attitude on the part of plaintiff led to a termination of the plan. This in turn precipitated the filing of the motion to modify on January 3, 1956.

Following a hearing the court sustained the motion 'to the extent that he (defendant) be permitted to have the two minor children before the evening meal on every other Friday and to return them before 8:00 p. m. on the Sunday following'. While the suggestion is made by plaintiff that the proof does not establish a change of conditions or circumstances since the original decree was entered, the gist of plaintiff's concern carried forward in her original brief is that the welfare and best interests of the boys require that defendant have their custody on the week-ends when his stepchildren are not in the Lewis home. In her reply brief plaintiff advances the theory that the motion to modify is at best a motion to clarify the decree by spelling out the precise times when defendant may visit his children, and by designating the exact summer month that defendant is entitled to custody. Upon this premise it is said that the court was without jurisdiction to modify the decree. It is clear that plaintiff is attempting to challenge the action of the court, not because of lack of jurisdiction of the subject matter, but because the issue adjudicated was outside of and not embraced within the allegations of the motion. Since this assignment is not properly raised in plaintiff's original brief, it presents nothing for review. It is an established rule of appellate procedure in this jurisdiction that a point raised for the first time in the reply brief is not entitled to consideration. Caldwell v. First Nat. Bank of Wellston, Mo.App., 283 S.W.2d 921, loc. cit. 925, and cases there cited. Furthermore, even though the motion was lacking in clarity, the court was within its jurisdiction in adjudicating the custody issue. This is so because the only matter submitted and tried dealt with and related to the welfare of the children and whether their interests would be promoted or adversely affected by granting defendant partial custody. 'Once the issue of the welfare of the child has been submitted to the court, that court must of necessity make such orders as are proper to accomplish such welfare, and technical objections in respect to pleadings on a motion to modify should not prevent a decision on the merits. * * * The court may award custody even though no request therefor has been made in a petition.' S_____ v. G_____, Mo.App., 298 S.W.2d 67, loc. cit. 74. See, also, Clark v. Clark, Mo.App., 300 S.W.2d 851.

The applicable legal principles are well settled. Following the fixing of custody of minor children in the divorce decree there can be no change made with respect to the custody except upon a showing of changed conditions since the entry of the decree. Perr v. Perr, Mo.App., 205 S.W.2d 909, loc. cit. 911; Baer v. Baer, Mo.App., 51 S.W.2d 873; S_____ v. G_____, supra, 298 S.W.2d loc. cit. 75. The welfare of the children is without exception the basic and underlying consideration to which the parents' own wishes and personal desires must yield if opposed to such welfare. Perr v. Perr, supra; S_____ v. G_____, supra; Schumm v. Schumm, Mo.App., 223 S.W.2d 122, loc. cit. 125. Where the father and mother are proper persons, both are not only entitled to reasonable access to their children, but the best interests of the children will in fact be served by an arrangement whereby they may associate with both parents. Schumm v. Schumm, supra; Perr v. Perr, supra; Baer v. Baer, supra. "The pleasure and benefit of friendly association with both parents should be accorded to a child'. Lambert v. Lambert, Mo.App., 222 S.W.2d 544, loc. cit. 548.' Fago v. Fago, Mo.App., 250 S.W.2d 837, loc. cit. 842. It is, of course, true as suggested by plaintiff that while proof of a change in conditions is a prerequisite to a modification of the decree, such proof does not necessarily require modification. It is when the welfare of the child requires a change in the custodial provisions that the decree should be modified. Schumm v. Schumm, supra, 223 S.W.2d loc. cit. 126.

An analysis of the record has convinced us that the essential elements were established and a modification of the decree is required. At the outset it should be emphasized that there is not the slightest intimation by plaintiff in her testimony that the defendant or his present wife are unfit and improper persons to be entrusted with the care and responsibility of Robert and James.

It can hardly be denied that the boys, having reached the ages of eight and ten years, stand in a position where they need the guidance, supervision, and love and affection of their father as well as their mother. That plaintiff is conscious of this fact is conclusively and convincingly demonstrated by the statements which appear in her brief. There we find these admissions:

'Plaintiff-appellant at no time...

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  • M--- L--- v. M--- R---
    • United States
    • Missouri Court of Appeals
    • 3 Octubre 1966
    ...supra, 354 S.W.2d at 531; Green v. Perr, Mo.App., 238 S.W.2d 924, 927; Wood v. Wood, supra, 400 S.W.2d at 437(9). See Lewis v. Lewis, Mo.App., 301 S.W.2d 861, 863; Fordyce v. Fordyce, Mo.App., 242 S.W.2d 307, 314; Baer v. Baer, Mo.App., 51 S.W.2d 873, 879. Of course, we recognize that, wher......
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    • Missouri Court of Appeals
    • 3 Octubre 1958
    ...as so modified it is affirmed. STONE, P. J., and McDOWELL, J., concur. 1 McKenzie v. McKenzie, Mo.App., 306 S.W.2d 588, 591; Lewis v. Lewis, Mo.App., 301 S.W.2d 861.2 Long v. Long, Mo.App., 280 S.W.2d 690, 694; Edwards v. Edwards, Mo.App., 302 S.W.2d 37.3 S_____ v. G_____, Mo.App., 298 S.W.......
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    • United States
    • Missouri Court of Appeals
    • 11 Septiembre 1965
    ...by an arrangement which will enable his association with both parents [Davis v. Davis, supra, 354 S.W.2d at 531(6); Lewis v. Lewis, Mo.App., 301 S.W.2d 861, 863(5); Fago v. Fago, Mo.App., 250 S.W.2d 837, 842; Lambert v. Lambert, Mo.App., 222 S.W.2d 544, 548(6); Baer v. Baer, Mo.App., 51 S.W......
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    • 31 Marzo 1967
    ...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 up......
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