Madigan v. Madigan

• Decision Date: 05 February 1924
• Docket Number: No. 18435.,18435.
• Citation: 260 S.W. 485
• Parties: MADIGAN v. MADIGAN.
• Court: Missouri Court of Appeals

260 S.W. 485

MADIGAN v. MADIGAN.

No. 18435.

St. Louis Court of Appeals, Missouri.

February 5, 1924.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

"Not to be officially published."

Suit for divorce by Iva Madigan against Irving Madigan, who interposed a cross-bill. From a decree for defendant for divorce, but denying him custody of the children, he appeals. Reversed and remanded, with directions to modify decree.

W. B. & Ford W. Thompson, of St. Louis, for appellant.

Edward E. Butler, of St. Louis, for respondent.

BECKER, J.

Defendant (husband) below in an action for divorce having been granted a decree on his cross-bill, but the court having awarded the custody of the two children born of the marriage to the maternal grandparents, brings this appeal.

The wife, who was plaintiff below and whose action for divorce was dismissed with prejudice by the court, is admittedly an immoral woman, and the record abundantly establishes that the husband is an industrious, sober man of good character and good repute. The record further convincingly shows that he has at all times been a kind and considerate father and has at all times provided for the maintenance and support of his children in an adequate manner and according to his means.

The sole question brought here for consideration is the action of the trial court in awarding the custody of the said two minor children, both boys and at the time of the trial eight and nine years old, respectively, to their maternal grandparents, instead of placing them in the custody of their father.

After a careful reading of the entire record and upon mature refection, we come to the conclusion that the learned trial court properly granted a decree of divorce to the defendant husband upon his cross-bill, but erred in the matter of awarding the custody of the children. In our view the custody of the children, under the facts and circumstances in the record before us, should have been granted to the father.

It may be well at the outset for us to advert to the fact that our Supreme Court in a later case reaffirmed the doctrine that the presumption of law is that the best interest of the child is to be in the custody of the parents. With such prevailing presumption a showing against the parent must be made, or there must be some special or extraordinary reason why such custody should not be in the father. State ex rel. Crockett v. Ellison, 271 Mo. 416, 196 S. W. 1140. See, also, In the Matter of Berenice S. Scarritt, 76 Mo. loc. cit. 582; Weir v. Marley, 99 Mo. loc. cit. 494, 12 S. W. 798, 6 L. R. A. 672.

In the Scarritt Case, supra, it was a contest between the father of the infant in question on the one side and the maternal grandparents on the other, and the court in its opinion said:

"There is but little, if any, dispute between the parties as to the law generally applicable to such contests. It is conceded that the father is the natural guardian of his child, and as such entitled to the custody of its person. It is also conceded that in contests of this sort it is the duty of the court to award the person of the infant to the custody of the father, unless it is made manifest to the court that the father, for some reason, is unfit or incompetent to take charge of it; or unless the welware of the child itself, for some special or extraordinary reason, demands a different disposition of it, at the hands of the court. Such appears to be the language and current of authorities, to which we have been cited, or to which we have had access. Indeed, this is the admitted law. About this there is no controversy."

And what we have quoted from the opinion in the Scarritt Case was quoted with approval by our Supreme Court in State ex rel. Crockett v. Ellison, supra.

Measuring the facts and circumstances before us in the light of the rule above noted, we find that the record admittedly contains no charge nor even a suggestion that the father in the instant case is for any reason unfit or incompetent to take charge of the children born of this marriage. The action of the learned trial court then in awarding the custody of the children to the maternal grandparents must be sustained, if at all, upon the theory that the welfare of the children themselves for some special or extraordinary reason demands that the custody be taken from the father and placed with said grandparents.

The record as we read it clearly presents no such special or extraordinary reason as to warrant such action. It would serve no purpose to set out in detail the testimony adduced at the trial, most of which deals with the delinquency of the plaintiff. We content ourselves with a recitation of such facts as the record discloses bear upon the question of the custody of the children.

Defendant at the time of the trial was 41 years of age; by occupation a hoisting engineer and a structural iron worker. Plaintiff and defendant were married on July 25, 1911,, and went to board with plaintiff's mother. In the latter part of November of that year defendant was employed at Augusta, Ark., his wife joining him the latter part of December. In May, 1912, they moved to Kansas City, Mo., where the defendant was employed in the construction of the new Union Station. In July, 1912, for reasons not necessary to set out herein, they moved back to St. Louis and boarded with plaintiff's mother, and the defendant took employment as engineer in the construction of the Railway Exchange Building. In April, 1913, because work in St. Louis was slack, the defendant returned to Kansas City and was again employed in the woes at the new Union Station. The wife remained in St. Louis, a child having been born in the latter part of January of that year, and she remained with her mother to learn how to take...