Montgomery v. Montgomery

• Decision Date: 21 April 1953
• Docket Number: No. 28618,28618
• Citation: 257 S.W.2d 189
• Parties: MONTGOMERY v. MONTGOMERY.
• Court: Missouri Court of Appeals

Page 189

257 S.W.2d 189

MONTGOMERY v. MONTGOMERY.

No. 28618.

St. Louis Court of Appeals, Missouri.

April 21, 1953.

Motions for Rehearing and to Transfer Cause to Supreme Court

Denied May 15, 1953.

Henry S. Caulfield and Daniel Bartlett, St. Louis, for appellant.

Green, Hennings, Henry & Evans, St. Louis, for respondent.

ANDERSON, Judge.

This is an appeal by defendant, Wiley Pope Montgomery, from an order of the Circuit Court overruling defendant's motion to modify a decree of divorce with respect to the custody of a minor child, and sustaining the motion filed by plaintiff, Delores S. Montgomery, to increase the monthly payments for support of said child.

Plaintiff obtained a decree of divorce from defendant in the Circuit Court of St. Louis County on December 2, 1949. In the petition in said suit plaintiff charged as grounds for divorce that for several years grounds for divorce that for several years the defendant had treated her 'and their minor child with indifference, showing to plaintiff no love and affection,' and that defendant was of a quarrelsome disposition and continually nagged plaintiff about 'plaintiff's and the household expenses. That defendant's continual attitude and nagging has seriously affected plaintiff's health.'

The prayer of said petition was for divorce and custody of the parties' four year old child, Galen, together with an order on defendant to pay a sum sufficient for the support, education and maintenance of said minor child, and a sum sufficient for the support of plaintiff.

The answer of defendant admitted the allegations of the petition with respect to the marriage, the birth and age of the child, but denied all other allegations.

The trial resulted in a decree which dissolved the bonds of matrimony existing between the parties and awarded the custody of said child to plaintiff, subject to the right of defendant to have the custody of said child at reasonable times and to have said child for one month in the summer. The decree also ordered defendant to pay to plaintiff the sum of $75 per month for the support of the child, and accorded the parties the right to remove said child from the State of Missouri, in accordance with a stipulation filed in said cause.

As part of a property settlement between the parties, plaintiff received from defendant the sum of $14,000.

On December 5, 1951, plaintiff filed her motion to modify the decree by increasing the allowance for the support, maintenance and education of said minor child to $175 per month. As a basis of said motion, it was alleged that 'the cost of maintaining, caring for and educating said minor child has greatly increased since the decree of divorce and plaintiff is unable to maintain her on the sum of $75 per month; that defendant is earning in excess of $10,000 per year, and is well able to increase the amount of support for said minor child.'

By his answer to said motion, defendant denied that the cost of maintenance, etc., had greatly increased since the date of said decree, and affirmed that plaintiff was able to maintain, care for and educate said child on $75 per month.

At the same time, defendant filed a motion to modify the decree so as to give custody and control of the child to him, and relieve him of his obligation for further payments to the plaintiff for support and maintenance of the child. As grounds for his said motion, it was alleged that:

'(2) Since the entry of said Decree of Divorce, plaintiff has moved to Washington, D. C., and has lived in a small apartment therein. To the best of defendant's information and belief, plaintiff is presently employed or otherwise occupied and is not at home during working hours, and said child is not cared for by plaintiff during such working hours.

'(3) Since the entry of said Decree of Civorce, plaintiff has sent said child to a boarding school in Hockessin, Delaware, said school being over one hundred miles from plaintiff's residence. Defendant contends that a child of tender years cannot receive proper parental care and guidance in a boarding school.

'(4) On October 13, defendant married Miss Marianne J. Jensen, who is twenty-seven years of age and who has had considerable experience in raising and caring for young children, having been one of a family of nine children, and not only having cared for her brothers and sisters, but late in life having cared for her many nieces and nephews. Defendant's wife is ready, able, willing and anxious to give said child loving attention and said child will have proper care and attention by both her father and step-mother.

'(5) Defendant's living quarters are well furnished and adequate, and a separate room is therein available for occupancy by said child for her bedroom. No other person but defendant and his wife live therein, and such living quarters provide adequate shelter and living space for said child.

'(6) Defendant is gainfully employed and is financially able to provide said child with all the necessities of life, and is willing and able to do so.'

The two motions to modify were heard together, and the trial resulted in an order, entered May 23, 1952, sustaining plaintiff's motion, and in dismissing that filed by defendant. In said order, the decree was 'modified so that plaintiff * * * recover of defendant the sum of $40.00 per week for the support of the minor child, Galen Montgomery, except during the time when said child is visiting the defendant, during the summer vacation; that said defendant have temporary custody of said child during the summer vacation from June 15th to August 20th of each year, and during the Christmas holidays on alternate years from December 23rd to January 2nd of each of said years; that said defendant pay the costs of transportation of said child during said specified times, and to have an adult accompany said child on such trips; that defendant have the right to see and visit said child at all reasonable times and under reasonable circumstances.'

Defendant did not file a motion for new trial. Notice of appeal was filed June 20, 1952.

Shortly after the divorce plaintiff moved to Washington, D. C., taking Galen with her. She arrived in Washington the 15th or 16th of December, 1949, and took residence in an apartment for which she pays $78.75 per month rent. In January, 1950, plaintiff was employed as a secretary by a real estate company called the 'Ofty Corporation' at a salary of $125 per month. Plaintiff's mother is president and majority stockholder of the Ofty Corporation. Plaintiff still draws salary as a secretary for this company. Her present salary is $159 per month.

At the time of the divorce Galen was four years old. For the first six months after plaintiff moved to Washington she herself took care of the child. Galen was sent to a nursery school for three hours a day during that period.

Plaintiff did not seek other employment during the first six months. She stated: 'I was very ill. I was mentally upset. I had been through a divorce, and divorce is a very horrible thing and makes big inroads on people. I had to readjust myself * * * and I was in no condition to work the first six months I was divorced and therefore I didn't. * * * I was perfectly able to take care of Galen. I wasn't ill, flat on my back, or anything like that.' Thereafter, plaintiff learned she could not live on the income she was receiving and, after taking a course at a secretarial school, decided to go to work. Plaintiff then looked into the school situation, and also into the matter of hiring a maid to take care of the child, and decided that it would be better and cost less to keep the child in a boarding school than to hire a maid. Plaintiff stated that it would cost her $150 per month to have a maid in Washington. Plaintiff testified:

'I went to the Washington School Association to see about a boarding school and they told me of a very good one outside of Wilmington. They said there was nothing very good inside the district, so I went and looked into this school. It is very unique, there is none like it in the United States, in fact in the entire world. They take all children from two and one-half years, all the way through high school; it is co-educational and a great big farm. They live on 250 acres, and they know how to live together and work together. She is living in a child's world there and living with other children that I thought was very necessary for a little girl who is an only child and living in a city, with the city streets and danger of automobiles going to and from school. I knew it would have a lot of benefits that I couldn't give her in the city; learning how to ride horseback and swim, and she has learned how to live with other children so she can become emotionally secure. * * *

'Q. Tell us the condition of the child's health and temperament at about the time of the divorce and with respect to how it is today. * * * A. She was upset and very emotionally insecure, very unhappy. She knew I was unhappy and my husband was unhappy. Since the divorce and since her re-adjustment with children at the school she is living in a child's world and has never been sick a day. She is very happy and active and head of her class in school. She comes home and is with me for three and a half months out of the twelve months * * *. I visit her on week ends.'

The school in question is known as 'Sunny Hills School', and is located in Hockessin, Delaware, approximately one hundred miles from Washington. Plaintiff originally placed her child in the school's summer camp to see if the child liked it. Plaintiff asked defendant at the time to contribute to the expense of the summer camp, but he refused to do so. Plaintiff testified:

'I put her in camp to see how she would do away from me and how she would adjust in a life with other children, in a secure surrounding off the city streets and with other children. I was told she adjusted very fast and better than any child ever had there. *...