Martin v. Martin

• Citation: 160 S.W.2d 457
• Decision Date: 07 April 1942
• Docket Number: No. 25959.,25959.
• Parties: MARTIN v. MARTIN.
• Court: Court of Appeal of Missouri (US)

160 S.W.2d 457

MARTIN v. MARTIN.

No. 25959.

St. Louis Court of Appeals. Missouri.

April 7, 1942.

Appeal from St. Louis Circuit Court; James F. Nangle, Judge.

"Not to be reported in State Reports."

Action by Jean Ragsdale Martin against Vernon C. Martin. From judgment modifying divorce decree with respect to custody of minor child, the defendant appeals.

Reversed.

Charles F. Ballak, of St. Louis, for appellant.

No appearance for respondent.

ANDERSON, Judge.

This is an appeal from a judgment of the Circuit Court which modified a divorce decree with respect to the custody of the minor child of the parties. The evidence shows that the parties were married in 1933, at which time respondent was 18 years of age and appellant 42. The child, John Robert Martin, was born October 24, 1934, making him 6½ years of age at the time of the hearing below. Plaintiff, Jean Ragsdale Martin, was granted the divorce on December 16, 1937, and pursuant to a stipulation of the parties the decree awarded the custody of John Robert to the defendant, Vernon C. Martin, giving to the plaintiff the right to temporary custody from 1 to 5 o'clock on every alternate Sunday, and giving her custody from June 15th to August 31st of each year, except such portion of said time as defendant should have his vacation. The decree further provided that defendant should pay to plaintiff a sum equal to $20 per month during such period of time as plaintiff should have custody of the child during the summer months. The stipulation and decree also provided that defendant should pay to plaintiff $400 as alimony in gross, and, in addition thereto, $65 for tuition and State examination fees for a course in cosmetology. The record also shows that these sums were paid, and that plaintiff signed the stipulation upon advice of counsel.

The modified decree, which is the one being here appealed from, awarded to plaintiff permanent custody of the child from September 1st to June 15th, inclusive, each year, and awarded to defendant temporary custody of the child between the hours of 9 a. m. on Saturday and 7 p. m. Sunday, and permanent custody from June 16th to August 31st inclusive each year, with temporary custody in plaintiff between 9 a. m. Saturday and 7 p. m. Sunday during said latter period. Defendant was ordered to pay plaintiff $6.50 per week during the time she had permanent custody of the child and $50 attorney's fees.

The testimony shows that after the divorce, and on April 2, 1938, plaintiff married John William Doedli, age 26, an employee of Von Hoffman Press, and assistant to the secretary in charge of credits, collections, and billing, at a salary of $170 per month. At the trial Mr. Doedli testified that he had been with said company for 11 years, having started there as an errand boy in 1930. The record further shows that at the time of the hearing below plaintiff was pregnant and expecting to be delivered of child about April 1, 1941.

Plaintiff testified that after her marriage to Doedli she moved with him to 4638 Sacramento Avenue, and later to a furnished apartment in the 4400 block on Washington Avenue; thence to a five-room flat in the 3900 block on Labadie Avenue, where they had their own furniture; from the latter place they moved back to the house they formerly occupied on Washington Avenue, and thence to a three-room basement apartment at 3635 Flad Avenue, where they lived with Mr. Doedli's mother. Later they moved to the address where they were living at the time of the hearing, namely, 4194 Sacramento Avenue, a four-room furnished flat.

The record also shows that the defendant Vernon C. Martin is employed by the City Water Department as a stationary engineer, which position he has held for over 22 years, and for the past 10 years he has received as salary the sum of $195 per month. On August 3, 1938, he remarried. His present wife is about 45 years old. She had never before been married, and for about 5 years prior to her marriage to defendant she had worked as a nurse for children. Defendant and his present wife live at 6222 Oleatha Avenue, in a fourroom house which he had built in 1936, while married to the first Mrs. Martin. The child attends the Mallinckrodt School on Pernoud and Hampton Avenue, three blocks from defendant's home, and at the time of the trial below the child, then past his 6th birthday, was in the second half of the first grade, which shows normal progress for a child of his age. The record shows that the child's health is good, and that he is very bright and normal in every way. On Sunday the child attends Sunday School at the Westminster Presbyterian Church at Delmar and Union Boulevards.

The evidence shows that after the divorce, and prior to defendant's second marriage, plaintiff had custody of the child oftener than the time to which she was entitled under the stipulation and decree; that she had him every Sunday and all afternoon two or three times a week. After defendant's second marriage, plaintiff was restricted to the times specified in the decree. However, she had experienced no difficulty in getting custody of the child at the times specified in the decree.

Plaintiff testified at the trial that since her marriage to Mr. Doedli she was in a position to keep the child, and that she had discussed the matter with her husband and it met with his approval. Mr. Doedli furthermore took the stand and testified that he had great affection for the child and would accept him as a son.

The rule governing the decision in this case is stated in Salkey v. Salkey, Mo.App., 80 S.W.2d 735, loc. cit. 739, as follows: "The law of the case is well enough settled, and, as is usually true in proceedings of this character, it is the decision on the facts which furnishes the greater difficulty. However, it is not amiss once again to reiterate that a minor child of divorced parents becomes the ward of the court which grants the decree; that the court's jurisdiction to determine where custody of the child shall go vests in such court to the exclusion of all others, and continues until the child attains its majority; that any subsequent modification of or change in the decree can be had only upon the showing of new facts and circumstances arising after the entry of the original decree, as to which the party seeking the change has the burden of proof; that, in determining the respective claims of parents to the custody of a child, the welfare of the child itself will be the first consideration always to be kept in mind by the court; that the question of the child's own welfare is superior to the claim of either parent, whose wishes and personal desires must yield, if opposed to such welfare; that the awarding of the child's custody should not be made with a view either of punishing one parent or of rewarding the other; and that the finding of the trial judge on motion to modify should not be lightly disturbed, and should, in fact, be deferred to, unless it is apparently in conflict with a clear preponderance of the evidence and discloses a manifest abuse of judicial discretion. Baer v. Baer, Mo.App., 51 S. W.2d 873; Conrad v. Conrad, Mo.App., 296 S.W. 196; Lampe v. Lampe, Mo.App., 28 S.W.2d 414; Rone v. Rone, Mo.App., 20 S.W.2d 545."

Respondent was not represented at the hearing before this Court and has filed no brief herein. Therefore, we will state rather fully the evidence bearing upon the plaintiff's complaints, concerning defendant's treatment of the child, and regarding the fitness of the parties to have control and custody of the child, keeping in mind the above rules which are to govern our decision.

A part of plaintiff's testimony was directed toward establishing the fact that since the stepmother came into the home, the defendant and his wife had endeavored to alienate the child from the natural mother. Plaintiff testified that she had noticed a change in the child's attitude toward her since defendant's remarriage; that since then the child referred to her as his "other mother", and when she asked him who told him that she was his "other mother", he said, "She did;" that the child had called plaintiff by her first name quite a number of times, and had called the present Mrs. Martin "Mother" at defendant's suggestion, and called Mrs. Martin's father "Grandpa." She stated that she procured the information as to what the child had been taught to call her from the child himself. She stated she thought it improper for the child to be taught to call Mrs. Martin's father "Grandpa", and she told the child that Mrs. Martin's father was not his grandpa, and that he had only one grandpa.

Defendant testified that he never taught his child to call plaintiff by any name other than "Mother"; that when the child would return from a visit to her on Sunday he would sometimes "refer to her as his `other mother'; sometimes he called her `Jean' and I would correct him in that; give him to understand that she was his mother and that he should not call her `Jean.'" Mrs. Martin testified: "We have never told Bobby to call his mother `Jean'; I don't know how she ever construed such a thing; never told him to call her his `other mother', but in referring to both of us he does speak of her as `other mother' and me as `other mother.' I have taught the child to call me `Mother', and he does that, and he refers to his actual mother as `Mother'. When he is trying to distinguish us he uses those terms `mother' and `other mother' interchangeably when he is speaking to his father or some one; that is the only time he does it."

Plaintiff next complained with reference to the clothes furnished the child when he was sent to her the prior summer. She testified: "When they sent him to me they did not send his clothes with him; but in the winter when I would get him on Sunday he was always well dressed and clean; but in the summer when I would go after him, they would send very little clothes. I asked for the rest of his clothes; I called...