Maupin v. Neels, 33477

• Decision Date: 20 January 1970
• Docket Number: No. 33477,33477
• Citation: 451 S.W.2d 381
• Parties: In the Matter of Charles F. MAUPIN, III, a Minor: Charles F. Maupin, Petitioner, v. Mrs. Eileen NEELS, Respondent.
• Court: Missouri Court of Appeals

Page 381

451 S.W.2d 381

In the Matter of Charles F. MAUPIN, III, a Minor: Charles F.

Maupin, Petitioner, v. Mrs. Eileen NEELS, Respondent.

No. 33477.

St. Louis Court of Appeals, Missouri.

Jan 20, 1970.

Motion for Rehearing or to Transfer to the Supreme Court

Denied March 4, 1970.

Motion to Transfer Denied April 13, 1970.

Gershenson & Gershenson, St. Louis, for petitioner.

Thomas, Busse, Weiss, Cullen & Godfrey, Donald H. Clooney, St. Louis, for respondent.

WOLFE, Presiding Judge.

The Petitioner was granted a Writ of Habeas Corpus for the production of his minor son before the Court. He sought to obtain custody of the son who was at the time in the custody of Mrs. Eileen Neels, the mother of the petitioning father and consequently the paternal grandmother of the child in question. The Respondent filed a return to the writ alleging that the father of the child was not fit to have the child's custody. The matter was certified to the Juvenile Court of St. Louis County under § 211.051, RSMo., V.A.M.S. The Honorable Noah Weinstein, Judge of the Juvenile Court, conducted a hearing of the matter and filed with this Court a transcript of the testimony together with his findings of fact and conclusions of law. The findings of fact and conclusions of law are as follows:

'Charles F. Maupin III, hereinafter sometimes referred to as the 'child' or 'Chuckie,' was born to Margaret Teanette Maupin and Charles F. Maupin II on October 24, 1959. The child's parents were divorced on October 5, 1961, in Cause No. 39297E in the Circuit Court of the City of St. Louis and custody of the 'child' was granted to the mother. The mother of the child, Margaret Teanette Maupin, died on February 1, 1969. The physical custody of the child was placed with the child's paternal grandmother, Eileen Neels, when he was about a year-and-a-half old and has remained with Mrs. Neels since then up to the present time.

'Eileen Neels, age 54, was married to Charles F. Maupin I and they were divorced 'thirty-four years ago'. Charles F. Maupin II was born of this marriage on June 19, 1933. Charles F. Maupin II, sometimes hereinafter referred to as 'father,' was five years old when he last saw his mother with the exception of meeting in 1961. Other than the 1961 meeting, the father's mother (Mrs. Neels) phoned him once in 1956, or 1957, at the time of his marriage to the child's mother. The father's mother married Thomas Neels on December 6, 1942.

'Charles F. Maupin II, the father of the child, was born June 19, 1933 to Charles F. Maupin and his wife, now Eileen Neels. The father married Margaret (mother of the child) on November 10, 1956, and one child, Charles F. Maupin III, was born of the marriage. They separated on or about July 14, 1961, and were divorced on October 5, 1961, and custody of the child was awarded to the mother. Thereafter, Charles F. Maupin II married Lelia Maupin (in 1961). Lelia's age is forty-one. Lelia has two children by a prior marriage, one of whom, Tommy, age nine, lives with Lelia and Charles F. Maupin II.

'The father has been employed as a truck driver for Lueking Transfer for approximately seven years. His pay is Three Hundred Dollars ($300.00) per week with his take-home pay Two Hundred Twenty Dollars ($220.00) to Two Hundred Fifty Dollars ($250.00) per week. Prior thereto the father was employed by H. A. Dailey Company in 1958 and 1959.

'Earl Trumbull married Margaret Maupin, the mother of Chuckie, on November 6, 1963, which marriage terminated at the death of Margaret on February 1, 1969.

'Thomas V. Neels married Eileen Maupin (Neels) on December 26, 1942. He is fifty-eight years of age. He retired in 1961 from his job with Colgate-Palmolive Peet and is now employed by Muscular Dystrophy. His income is Ten Thousand Dollars ($10,000.00) per year plus expenses. He and Mrs. Neels reside at 7211 Deckside. Charles F. Maupin III has lived with Mr. and Mrs. Neels since on or about August or September, 1961.

'Susan Perry, Deputy Juvenile Officer of the Juvenile Court of St. Louis County, made a home study and filed a report with the Court. By agreement with counsel, the Court did not take this report into consideration in determining the issues and at the hearing the report was not received in evidence. Miss Perry testified in answer to a hypothetical question that she would recommend that the child remain with the grandparents at this time. The Court, however, does not consider this testimony to be material and the conclusion herein reached does not involve the Juvenile Officer's testimony or her report.

'We have a situation in which a child has lived continuously for the last eight of his nine-and-a-half years of life with his paternal grandmother and paternal step-grandfather, Mr. and Mrs. Neels. The physical custody of the child was placed with the Neels by the child's mother prior to the divorce of the child's parents on October 5, 1961, and although the Divorce Decree awarded legal custody of the child to the mother, the physical custody of the child in the Neels continued unchanged up to the present time. The child has never spent a single night away from the Neels.

'The father of the child has maintained all child support payments. Likewise, the father has exercised his right of temporary custody either on his own or, as later required by Divorce Decree, through his father and two aunts with substantial regularity. Although the records produced by Mrs. Neels indicate that some temporary custody days were missed by the father or his representative, they were not in my opinion substantial or material to the issues. It is not contradicted that the child is being well cared for by the Neels although the father attempted to make some issue about the child's teeth...