Mayo v. Mayo
| Decision Date | 05 November 1951 |
| Docket Number | 21639,Nos. 21622,s. 21622 |
| Citation | 244 S.W.2d 415 |
| Parties | MAYO v. MAYO. |
| Court | Missouri Court of Appeals |
Myer M. Rich, Isadore Rich and Rich & Rich, all of Kansas City, for appellant.
W. B. Ennis, Kansas City, for respondent.
SPERRY, Commissioner.
Fern Mayo, plaintiff, sued her husband, Marvin T. Mayo for divorce, custody of their child, and for alimony, suit money, attorney fees, and maintenance for said child. Judgment was for plaintiff. Defendant appeals from the judgment, except that part granting plaintiff a divorce.
Plaintiff came from Kirksville to Kansas City to live with her aunt, when she was 15 years of age. She and defendant were married 2 years later, defendant then being 17 years of age. Since their marriage they have lived in a home owned and occupied by defendant's father and mother, grandmother and an unmarried aunt. Defendant's father is now dead. A child, Judith Ann, was born in 1947.
Plaintiff left the home on two occasions prior to the last separation, which was September 10, 1950. On that date she went to the home of her sister, Mrs. Burkhart, and this suit followed. The child remains in the home of defendant (who is now in military service) and is being cared for by her grandmother, great-grandmother, and a maiden aunt. Defendant contends that plaintiff is not a fit person to have care and custody of the child because of her mental condition.
We will review the evidence and reach our own conclusions therefrom; however, we will defer largely to the findings of the trial judge where there is irreconcilable conflict in the evidence. Taylor v. Taylor, Mo.App., 224 S.W.2d 412, 416; Parks v. Cook, Mo.App., 180 S.W.2d 64. The controlling factor in arriving at our decision will be the welfare of the child, which is superior to the claim of either parent. McPhail v. Houghtelling, Mo.App., 225 S.W.2d 162, 165.
There was strong evidence tending to prove that defendant has dated other women frequently. The evidence also tended to prove that he is not a steady worker and has exhibited a low earning capacity. He had contributed to the family budget only $10 per week during his married life. He is now in military service, but if he were not in such service, it is conceded that the child would in fact, be under the care of defendant's mother, aunt, and grandmother, the first two being employed and away from home a major portion of the time; and the grandmother is almost 80 years of ago.
It appears, from the evidence, that the child's best interest requires that her custody the awarded to plaintiff if she is a suitable person. Defendant's contention that she is not a suitable person to have custody, is based on evidence of a previous mental disorder, for which she received shock treatments. He contends that she has not fully recovered.
Much evidence was offered, by both parties, on this issue. Dr. Day, an osteopath, stated that, in his opinion plaintiff was mentally unsound and not capable of properly caring for the child. However, he had not seen plaintiff since the underwent shock treatments.
Dr. Cooper treated her at General Hospital, where she was given shock treatments. He stated that she thought she heard men outside of her window with a bomb; that she had auditory hallucinations, paranoid type of schizophrenia; that he regards one as a schizophrenic who believes that he hears, sees, or feels something when, in fact, he does not; that the cause of the disease is not fully known but that plaintiff's home life probably aggravated it; that medical authorities differ as to whether or not the disease is curable. He stated that he is not a specialist, or a fully qualified authority on mental diseases.
Defendant, and members of his family, testified to the effect that, on one occasion when plaintiff left the home, she took with her the child, who was very ill, and was taking penicillin; that she kept her for several hours, administered no medicine and gave her no food except an ice cream cone; that the first night she returned home, after the child was born, she gave the baby to defendant's Aunt Dee and has never taken care of her since that time; that plaintiff has never taken care of the baby; that, when she left home on September 10, 1950, she did not take the baby and made no inquiry about her until several days thereafter. It is urged that the above testimony strongly indicates mental unfitness.
Mr. Koelmel, formerly a member of the police department, for many years, has lived across the street from defendant's home. He is a cripple and spent much time on his front porch; he observed plaintiff and the family; plaintiff cried a great deal because of her unhappy home life; he heard defendant's mother tell plaintiff that she didn't have enough brains to take care of the baby or to do housework; he has seen defendant on Cliff Drive with various women on several occasions; defendant has told him of his amorous conquests; he believed plaintiff to be a normal person, 'above average.'
Mrs. Siegel, about 50 years of age, lives back of the Mayo home. She has been in the home, and plaintiff has been in her home with the baby; she likes the Mayo family; has seen plaintiff in the back yard caring for the baby many times. She stated that she believes plaintiff is normal mentally and a good mother. She has seen her sit on the porch with the baby and cry.
Mrs. Izaby lives two doors east of the Mayos. She stated that she did not think defendant is a good husband or father; that he went out nights without his wife; that plaintiff took care of the baby and she thinks she is normal mentally.
Plaintiff's aunt, Zola Miller, stated that plaintiff has never visited her home with the baby except when 'Aunt Dee' accompanied her; that witness never visited the Mayo home except once, because she thought the Mayos did not want her; that on an occasion when plaintiff lef...
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