McFadden v. McFadden
| Decision Date | 07 May 1974 |
| Docket Number | No. 35111,35111 |
| Parties | Mary Cella McFADDEN, Plaintiff-Respondent, v. James F. McFADDEN, Defendant-Appellant. . Louis District, Division One |
| Court | Missouri Court of Appeals |
Gerritzen & Gerritzen, Ray A. Gerritzen, St. Louis, for defendant-appellant.
Daniel P. Reardon, Jr., St. Louis, for plaintiff-respondent.
Cross motions of the parties for modification of custody orders concerning their minor children were granted in part by the court. Defendant has appealed.
Plaintiff and defendant were divorced on September 22, 1969. At that time plaintiff mother was granted care and custody of the five minor children but was prohibited from moving the children from the State of Missouri. Defendant father was granted visitation rights and temporary custody on alternate weekends and certain holidays. In a subsequent motion to modify, custody of the oldest child was transferred from plaintiff to defendant father effective June 1, 1972. Plaintiff was given temporary custody of the child on alternate weekends, certain alternate holidays, and two weeks in the summer of each year.
The court's instant judgment October 12, 1972, modifying the previous custody orders (and subsequently modified December 29, 1972) permitted plaintiff to remove the three youngest children from the State of Missouri for residence and eliminated the rights of defendant with regard to visitation or temporary custody other than at Thanksgiving and Easter in odd-numbered years and at Christmas in even-numbered years. Defendant was also awarded temporary custody of the three youngest children for a continuous period of two weeks during a period between July 1 and September 1 of each year at a time to be determined by plaintiff before June 1 with notice to defendant by that date. As heretofore described, defendant father had been previously awarded the custody of the oldest child. The decree from which this appeal has been taken also awarded custody of the second oldest child, Kenneth, to defendant. Plaintiff mother was awarded temporary custody in the state of defendant's residence of the two oldest children on certain holidays and 'at such times in Missouri or outside of this state between July 1st and September 1st of each year, as said children or either of them elect, in writing addressed to plaintiff, to be in her temporary custody.'
On appeal, we have been requested to review the case the de novo and after review of the evidence to determine that the court erred in failing to transfer the custody of all the children to their father, the defendant. Before considering this review, however, we will dispose of certain technical matters directed toward the admission of evidence. In this connection, defendant first contends that the court erred in failing to accept testimony of certain of the children as to events that occurred up to the date of the hearing. The incident complained of occurred on the second day at which evidence was taken by the court, some nine days after the first hearing date. At that time one of the children was placed on the stand to testify with regard to some recent events concerning the dispute between the parents and particularly with regard to the treatment of this child by the plaintiff, his mother. These were events which had occurred between the date of the first hearing on the motion and the date of the second hearing. The court sustained an objection to the introduction of this evidence because it came in after the date of the filing of the motion to modify, but allowed the testimony as an offer of proof.
One of the elementary rules of evidence is that all facts and circumstances which are relevant to the issues of the case are admissible, unless their exclusion is required by some established principle of evidence. Godsy v. Thompson, 352 Mo. 681, 179 S.W.2d 44, 49(8) (1944), cert. den., 323 U.S. 719, 65 S.Ct. 48, 89 L.Ed. 578 (1944); State v. Knight, 356 Mo. 1233, 206 S.W.2d 330, 333(8) (1947). On the hearing of a motion to modify, the court may consider changed facts and circumstances after the prior decree and material facts existing at the time of the decree but unknown to or concealed from the court. In re Wakefield, 365 Mo. 415, 283 S.W.2d 467, 473(14) (banc 1855); Endicott v. Endicott, 435 S.W.2d 388, 390(2) (Mo.App.1968). 1 The reason for not going into matters which occurred prior to a previous decree is they have been merged into that decree and thereafter may not be inquired into under the doctrine of res judicata, which favors the repose of litigated issues. But this rule applies only as to matters which occurred prior to the last decree concerning a child's custody. 2 The court should have admitted and considered all relevant testimony as to events which occurred after the first hearing on the motion and up to the time of the second hearing. See Brenneman v. Hildebrandt, 137 Mo.App. 82, 119 S.W. 452, 453(3) (1909). The offer of proof, however, consisted of the testimony itself, and we have therefore been able to consider this additional testimony in our review of the evidence without remand.
In another contention of error on the admission of evidence, defendant complains of the court's ruling on refusing to admit a 1968 Firmin Desloge Hospital record which defendant contends is relevant in that it showed a behavior pattern which indicated plaintiff to be unfit to raise her children. We agree with the trial court in sustaining the objection to the introduction of this exhibit because it concerned matters preceding the decree of divorce, and further, it is too remote and not relevant to the instant proceeding. As previously stated, when the custody of a child has been fixed in a divorce decree, as here, there can be no change made respecting this custody except upon a showing of changed conditions since the entry of the decree, or upon material and relevant facts existing at the time of the decree but unknown to or concealed from the court, and then only for the welfare of the child. Endicott v. Endicott, supra, 435 S.W.2d 388, 390(2) (Mo.App.1968). ...
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