M v. G

• Decision Date: 07 May 1957
• Docket Number: No. 29623,29623
• Citation: 301 S.W.2d 865
• Parties: M_____ (Plaintiff), Appellant, v. G_____ (Defendant), Respondent.
• Court: Missouri Court of Appeals

Page 865

301 S.W.2d 865

M_____ (Plaintiff), Appellant, v. G_____ (Defendant), Respondent.

No. 29623.

St. Louis Court of Appeals, Missouri.

May 7, 1957.

Alexander Goodman, Morris A. Shenker, Bernard J. Mellman, St. Louis, for appellant.

Ziercher, Tzinberg, Human & Michenfelder, Erwin Tzinberg, Clayton, for respondent.

WOLFE, Commissioner.

This is an action to modify a divorce decree as it relates to the custody of the daughter of the divorced parents. The father of the child prevailed upon his motion for modification and the mother prosecutes this appeal.

The parties herein were divorced on July 24, 1952, in a suit brought by the wife. By the decree entered in that action the wife, who has since remarried, was awarded a decree of divorce and custody of their daughter. The decree provided that the father should pay to the mother $15 a week for the support of their daughter and that he should have temporary custody of the child on alternate weekends from 9:00 a. m. on Saturdays until 6:00 p. m. on Sundays and on other weeks from 5:00 p. m. to 8:00 p. m. on Wednesdays.

The father of the child and the defendant in the divorce case filed a motion to modify the decree on September 6, 1955, seeking full custody and control of his daughter. One of the grounds upon which the modification was sought was that the mother had remarried and that her present husband often cursed in the presence of the child. It was also alleged that the mother had failed to properly clothe the child and that the mother and her husband left the child in the home alone at night. There was an allegation that the mother had inflicted bodily injuries upon the child and other allegations that a brother of the mother's husband spent considerable time in the home while intoxicated and that the child was afraid of him.

The father, testifying in support of his motion to modify the decree, stated that since his divorce from the plaintiff he had remarried. He was employed as an automobile mechanic. He stated that for six months preceding the filing of his motion the child had been poorly dressed and dirty when he picked her up on alternate weekends and Wednesdays. He said that her clothes were filthy and that she had not had a bath for over a week.

Over continued objections of plaintiff's counsel, the father testified as to things the child had told him. The court stated that while the evidence appeared to be hearsay it would not rule upon the admissibility of the evidence but would hear it subject to objection. The father testified that the child, who was twelve years old at the time of the hearing, said that her mother had bitten her finger. He said that he saw tooth marks on her finger. He said that on another occasion, when he picked up his daughter, she had bumps on her head which she told him resulted from her mother hitting her on the head with the heel of her shoe after first throwing her to the floor. He further testified that the child had telephoned him several times at night and told him that she was alone and frightened and he said that on three occasions he drove to her mother's home and that his daughter came out and sat in his automobile with him until her mother and stepfather returned. He stated that on two trips to the house for this purpose the child's mother and stepfather did not return until 3:00 a. m. He further testified that the daughter told him that she received no affection at home and that she was never taken to church. He said that the daughter told him that on one occasion the brother of her stepfather had fondled her breasts.

The witness upon cross-examination stated that the child was well behaved, obedient, and well mannered. He had never had her examined by a physician but he stated that she suffered from hay fever. He said that he and his present wife had clothing for her at their home and dressed her when she was with them, but returned her to her mother in the clothing that she had worn at the time that they picked her up. He said that he made no complaint to the prosecuting attorney after the child told him of advances the brother of her stepfather had made but he called his lawyer.

Defendant had not been regular in paying the support money of $15 a week and after he was in arrears $580 a settlement of the amount owing was effected through counsel.

The defendant's present wife testified to about the same things that her husband had related and she was also permitted to state what the child had told her.

After these witnesses had testified the defendant's counsel announced that he would like to call the daughter as a witness. Counsel for the mother objected and the court stated: 'I am not going to let her testify in court in the presence of her parents' and further added: 'I might want to hear the child in chambers. Any objection to that?' There was no objection. There is nothing in the record to indicate that the hearing was adjourned to chambers for the taking of testimony, nor is any testimony of the child of record.

On behalf of the mother a qualified pediatrician testified that he had examined the child and found her to be a normal adolescent girl showing no evidence of physical disorder. He said that she appeared to be doing very well and was gay and exuberant.

The mother testified that she had never mistreated the child in any way. She informed the court that her daughter had an abundance of clothing and offered in evidence sales slips for numerous articles of clothing purchased for her. She said that the child was receiving dental care from an uncle who was practicing dentistry and that she had medical attention as required. She...