M--- L--- v. M--- R---

• Decision Date: 03 October 1966
• Docket Number: 8560,Nos. 8551,s. 8551
• Citation: 407 S.W.2d 600
• Parties: M__ L__, Plaintiff-Appellant, v. M__ R__, Defendant-Respondent. M__ L__, Plaintiff-Respondent, v. M__ R__, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 600

407 S.W.2d 600

M__ L__, Plaintiff-Appellant, v. M__ R__, Defendant-Respondent.

M__ L__, Plaintiff-Respondent, v. M__ R__, Defendant-Appellant.

Nos. 8551, 8560.

Springfield Court of Appeals, Missouri.

Oct. 3, 1966.

Sam F. Hamra, Jr., Springfield, for plaintiff.

Moore, Pettit & Keeter, Aurora, for defendant.

STONE, Presiding Judge.

These consolidated cross-appeals by plaintiff M_ _ L_ _ (hereinafter referred to as the mother) and by defendant M_ _ R_ _ (hereinafter referred to as the father) bring to us for review an order of the circuit court modifying upon the mother's motion (but not to the extent sought) the custodial provisions of a decree entered on January 31, 1964, which reflected the mother's voluntary dismissal of her petition for divorce, granted a divorce to the father upon his cross-complaint, and awarded him custody of the only child, an adopted boy K_ _ then two years of age, subject only to the mother's right of reasonable visitation.

In her motion to modify filed on May 17, 1965, the mother averred, inter alia, that on October 16, 1964, she had married one G_ _, an over-the-road bus driver; that she and G_ _ were buying 'a three-bedroom home with a fenced backyard' in a metropolitan area in another state; and that, if given the custody of the boy, she would devote her full time to his care and would rear him 'in a proper and adequate environment.'

Since the morals of the respective parents are an appropriate subject of consideration in this child custody case (L_ _ v. N_ _, Mo.App., 326 S.W.2d 751, 755(8); Hurley v. Hurley, Mo.App., 284 S.W.2d 72, 74(4)), the court quite properly received, at the hearing on December 16, 1965, considerable testimony pertaining to the mother's alleged misconduct with G_ _ beginning on the night of April 17, 1963, when the father and mother separated, and continuing intermittently through October 1, 1963, when G_ _ and his second wife were divorced, and January 31, 1964, when the father was granted a divorce from the mother on his cross-complaint, to the marriage of the mother and G_ _ on October 16, 1964. S_ _ v. G_ _, Mo.App., 298 S.W.2d 67, 75--76. In view of the present agreement of the parents as to the proper disposition of these appeals (of which more anon), we need not record here such admissions of misconduct as the mother and G_ _ made at the hearing or descend into unsavory factual details and odious inferences. Suffice it to say that it is altogether understandable why the court, in the original decree of January 31, 1964, awarded full custody of the boy to the father, subject only to the mother's right of reasonable visitation.

It is a trite principle that a custodial order once made becomes as conclusive as any other order (Schumm v. Schumm, Mo.App., 223 S.W.2d 122, 126; Brake v. Brake, Mo.App., 244 S.W.2d 786, 801; Lehr v. Lehr, Mo.App., 246 S.W.2d 35, 37) and may be disturbed only upon proof of changed conditions subsequent to entry of the order coupled with a showing that modification of the order would promote the best interests of the child or children involved. P_ _ D_ _ v. C_ _ S_ _, Mo.App., 394 S.W.2d 437, 439(1); Hirsch v. Hirsch, Mo.App., 366 S.W.2d 484, 489(3--5); Frame v. Black, Mo.App., 259 S.W.2d 104, 108(4). But counsel for the mother vigorously emphasized in the trial court (and upon submission here) that the mother's prior transgressions of the moral law did not necessarily require that she be denied custody of the boy upon her subsequent motion to modify (Johns v. McNabb, Mo., 247 S.W.2d 640, 643; Yount v. Yount, Mo.App., 366 S.W.2d 744, 748(7); Knepper v. Knepper, 139 Mo.App. 493, 122 S.W. 1117) and ably presented evidence designed to support his insistence that both the mother and G_ _ (now her husband) had repented of their former transgressions. Ex parte Ferone, Mo.App., 267 S.W.2d 695, 698, 700. Contrast Graves v. Wooden, Mo.App., 291 S.W.2d 665, 669(5). And in the order of modification entered on December 24, 1965, the trial court found 'that there has been a substantial change of condition since the divorce was granted on January 31, 1964, in that, among other things, plaintiff (mother) has remarried and has an established and good Christian home; plaintiff and her husband (G_ _) are compatible; they are congenial with the (boy) and desire to and can furnish a good home in which K_ _ can be with them; and it is for K's best interests and welfare that the original decree be modified, as provided herein, because of such change of condition.'

Accordingly, the court modified the custodial provisions of the original decree (which had awarded the father full custody of the boy subject only to the mother's right of reasonable visitation) by leaving major custody with the father but granting to the mother minor custody for (a) a forty-five day period each summer, (b) 'one week-end beginning 5:00 P.M. Friday until 5:00 P.M. Sunday . . . in each even-numbered calendar month' and 'one week-end beginning 5:00 P.M. on Wednesday until 9:00 A.M. Sunday . . . in each odd-numbered calendar month' insofar as such week-end custody would not interfere with the boy's attendance at school, and (c) a ten-day Christmas vacation period (including Christmas Day) and the 'Easter school vacation' in even-numbered years. The order of December 24, 1965, also included several additional provisions calculated to minimize friction and disagreement between the parents incident to the frequent transfers of custody, e.g., requirements (a) that the mother give to the father written notice by registered mail not less than seven days prior to the beginning date of each period of permissive custody selected by her, (b) that the mother or one of her parents personally pick up the boy and redeliver him, and (c) that all expense incident thereto be borne by the mother. Within the period of thirty days during which the trial court retained control over the order of December 24, 1965, to 'vacate, reopen, correct, amend or modify (it) for good cause' (V.A.M.R. Rule 75.01), to wit, on January 20 and again on January 21, 1966, the court amended the order of December 24, 1965, in minor and here unimportant particulars.

Relying upon the hereinbefore-quoted findings of the trial court and the oft-repeated statement that, all things being equal, the custody of a child of tender years belongs with the mother (see cases collected in 11 West's Missouri Digest under Divorce, k298(6), and in 22A West's Missouri Digest under Parent and Child, k2(3.2)), counsel for the mother initially pressed us, both by brief and by oral argument, to direct the trial court to grant full custody of the boy to the mother subject only to the father's right of reasonable visitation. But as we recently observed 'all things never are exactly equal' (Garbee v. Tyree, Mo.App., 400 S.W.2d 193, 199); and a profusion of cases convincingly demonstrates that the courts are not reluctant to entrust children into their father's care and custody, where the best interests of the children will be served thereby. Copenhaver v. Copenhaver, Mo.App., 402 S.W.2d 612, 615 (4, 5); Wood v. Wood, Mo.App., 400 S.W.2d 431; Jaros v. Jaros, Mo.App., 395 S.W.2d 217, 220(5); Jennings v. Jennings, Mo.App., 379 S.W.2d 159, 162--163; Derringer v. Derringer Mo.App., 377 S.W.2d 513; Crowley v. Crowley, Mo.App., 360 S.W.2d 293, 297(7, 8); C_ _ v. B_ _, Mo.App., 358 S.W.2d 454, 459; Thomas v. Thomas, Mo.App., 357 S.W.2d 208; Harwell v. Harwell, Mo.App., 355 S.W.2d 137, 143; Davis v. Davis, Mo.App., 354 S.W.2d 526, 528(3); Tootle v. Tootle, Mo.App., 329 S.W.2d 218, 224; L_ _ v. N_ _, supra, 326 S.W.2d at 755(6), and cases cited in note 8. The only rigid, inflexible and unyielding principle in custody cases is that the welfare of the child is paramount and supreme (see cases collected in 11 Missouri Digest under Divorce, k298.1, in 22A Missouri Digest under Parent and Child, k 2(3.1), and in 15A Missouri Digest under Infants, k 19.2(2)), and perplexing problems of custody must be resolved not by applying academic rules or by mouthing pious platitudes but rather by determining, insofar as is humanly possible, what will best serve and promote the child's welfare. P_ _ D_ _ v. C_ _ S_ _, supra, 394 S.W.2d at 446; C_ _ v. B_ _, supra, 358 S.W.2d at 459.

The father, now thirty-five years of age and single, and the boy live with the father's widowed mother in her comfortable home in a wholesome Ozark community having a population of approximately 1,250 persons. The paternal grandmother, now sixty years of age, is in excelent health and does not work outside the home. The father and his unmarried sister, a registered pharmacist, own and operate a drug store, from which the father derives a modest but adequate income. He usually goes home for lunch and does not work evenings or Sundays. His minister confirmed the regular attendance of both father and son at church services, and there is not a scintilla of evidence in any wise reflecting upon the father's reputation and character. In short, the father 'is doing a good job (in rearing the son) and there is no evidence to the contrary.' Ballew v. Ballew, Mo.App., 288 S.W.2d 24, 26; Ragan v. Ragan, Mo.App., 315 S.W.2d 142, 147. The boy, now five years old, is verging on an age at which the guidance, direction, supervision, companionship and love of an understanding father will be most needed and beneficial. Davis v. Davis, 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,...