Morgens v. Morgens
| Decision Date | 06 October 1942 |
| Docket Number | No. 26127.,26127. |
| Parties | MORGENS v. MORGENS. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; James F. Nangle, Judge.
"Not to be reported in State Reports."
Suit by Valle Bush Morgens against James Allen Morgens for divorce. A decree was entered granting plaintiff a divorce and awarding her custody of a minor child. From a judgment modifying the divorce decree in regard to the custody of the child, the plaintiff appeals.
Reversed and remanded with directions.
Ellison A. Poulton and Joseph J. Howard, both of St. Louis, for appellant.
John C. Vogel, of St. Louis, for respondent.
This is an appeal from a judgment of the Circuit Court of the City of St. Louis modifying a prior judgment of said court in relation to the care, custody and maintenance of a minor child growing out of a suit for divorce wherein appellant, as plaintiff, had been granted a divorce from respondent as defendant.
The record shows that on June 16, 1938, the court, following a trial of the issues in the divorce suit, entered a decree, also called judgment, granting plaintiff a divorce from defendant and awarding plaintiff the custody and control of William Allen Morgens, the child of the parties, then six years of age. In said decree the court ordered that defendant pay to plaintiff for the support and maintenance of the minor child the sum of $50 per month until the further order of the court, and also ordered that defendant be permitted to have temporary custody of the child at certain times therein specified.
On June 12, 1941, almost three years thereafter, defendant filed a motion to modify the aforesaid orders, alleging in his motion facts showing a change in conditions of the parties which he charged justified a change in the custody and control of the child. Defendant prayed the court to vacate its order awarding custody of the child to plaintiff, and that a new order be entered awarding him custody because of the change in conditions.
Plaintiff's answer to defendant's motion to modify contained a general denial of all of the allegations therein.
After a hearing on the motion to modify, the court, on August 25, 1941, entered an order sustaining defendant's motion to modify, and ordering that thenceforth until the further order of the court defendant have the care, custody and control of William Allen Morgens, the minor child of the parties, from the first day of September to the fifteenth day of June of each year, except Sundays and holidays; and that plaintiff have the temporary care and control of said minor child from the fifteenth day of June until the first day of September of each year, except Sundays and holidays. The court also ordered that plaintiff recover of defendant for the support and maintenance of the minor child the sum of $50 per month, payable on the twenty-fifth day of each month during the period plaintiff has the temporary custody of said child; that plaintiff recover of defendant the sum of $150 for attorney's fees, and that in all other repects the original decree of divorce as subsequently modified remain in full force and effect, and that defendant pay the unpaid costs of this proceeding.
Plaintiff filed a motion for a new trial, which was overruled, and she appealed to this court.
In support of his motion to modify, defendant testified that, at the time of the decree of divorce and the original order granting plaintiff custody of the minor child, he, defendant, was a route supervisor for the 7-Up Bottling Company, traveling over Illinois and southeast Missouri; that he was then in St. Louis only for week ends two weeks to two months apart, whereas, at the time of the hearing on the motion to modify, he was employed in St. Louis and was residing there continuously; that the minor child had been with plaintiff, the child's mother, in Mexico, Missouri, and for a year and a half visited defendant on the second and fourth week ends in the month; that plaintiff and the child live in Mexico, Missouri, with plaintiff's father and mother in a house which has only three bedrooms and a sun porch for sleeping quarters; that two of the bedrooms are rented out to other persons; that plaintiff's mother and father occupy the sun room, and plaintiff and her minor child occupy the third bedroom, sleeping in the same double bed; that something more than a year prior to the hearing on the motion to modify, defendant objected to the arrangements for the child and demanded that the boy be given a separate bed, defendant telling plaintiff that he wanted the boy, on account of his age, to have a separate room; that plaintiff agreed to make such an arrangement. Plaintiff denied that she agreed to such an arrangement. The evidence shows that such an arrangement was not carried out. Defendant's further testimony was that, when the boy came to St. Louis in the summer of 1940 to spend a part of the time with defendant, he found the boy had an inclination to play with girls instead of with boys; that defendant sent the boy to a boys' camp for about two weeks and advised the instructor at the camp of the boy's inclination in this respect; that upon his return from the camp the boy was improved; that defendant lives in St. Louis at the home of his mother and father, and that there is available in said home a separate bedroom for the boy; that defendant's mother takes care of the boy while he is in St. Louis and is willing to take care of and supervise him while defendant is at work and away.
Upon cross-examination, defendant testified that the original decree in the divorce suit required him to pay $50 a month for the support of the child; that he later prevailed upon plaintiff to accept $30 a month, but thereafter plaintiff, by garnishment proceedings during a period of six months, regained the difference between the $30 and $50 a month for the support of the child; that thereafter plaintiff agreed with defendant to accept $40 a month until his income became better, and further agreed that the $10 in excess of the $30 which he had been paying to plaintiff would be used by her to furnish a separate room for the child; that he never at any time paid more than $50 ordered by the court for the support of the child.
Mrs. William Morgens, defendant's mother, testified that, if the court should grant custody of the child to her son (defendant), she would be willing to care for the grandson and see that he is properly housed, fed and clothed; that the grandson has a bedroom furnished nicely which he occupies when in St. Louis, and that the witness never had any trouble or difficulty in controlling her grandson.
Defendant introduced in evidence a part of a deposition of plaintiff, taken on behalf of defendant after the original divorce decree and after the filing of the motion herein, in which plaintiff testified that she lived at 417 East Jackson Street, Mexico, Missouri; that, at the time the divorce was granted and the order of custody of the child entered, she was living at that address in Mexico, Missouri, which is a residence building occupied by her mother and father; that, at the time of the divorce, there were living in said house her mother and father, herself and son, and two men who roomed there; that each of the men occupied a bedroom; that her mother and father occupied a room, and she and her son occupied the other; that she had been employed at the Mexico Refractories since July, 1940, as a receptionist; that she works five full days a week and a half day on Saturday; that in the summer time her hours are from 7 a. m. to 4 p. m., and in the winter from 8 a. m. to 5 p. m.; that she quits work at noon on Saturday both winter and summer; that her son attends the public school in Mexico and would be in the fifth grade in the fall of 1941; that her mother is not employed but makes trips out of town from time to time conducting a school in churches over the State; that sometimes her mother is out of town one week in a month, sometimes only one week in two months, and sometimes she makes other trips; that, when plaintiff's mother is out of town and plaintiff is at work, a colored woman about fifty years old is employed to look after the child, coming to the house in the morning before the child goes to school and coming back at noon to be there for the child's lunch, and back again about three o'clock in the afternoon to remain until plaintiff returns from her work; that plaintiff's father has a business of his own; that the child goes to school at eight o'clock in the morning, comes home to lunch at ten minutes to twelve, returns to school at one o'clock, and is dismissed from school at 3:40 p. m.; that the school is two blocks away from the home; that when plaintiff's mother is away plaintiff sometimes has the colored woman prepare food which plaintiff can finish up when she returns from her work, and at other times she has the colored woman prepare the evening meal; that the roomers at the house do not take their meals there; that the child sometimes eats with the rest of the family but usually not, although he usually has lunch with plaintiff; that the child's evening meal is usually at 5:30, and that plaintiff and her father and mother eat between 6:00 and 6:30; that the boy eats his evening meal earlier than the rest of the family because it seems to work out better for him to get through sooner so he can do his home work and go to bed early. Plaintiff in her deposition denied that anyone had ever told the child that he could not eat with the rest of the family because his table manners were not good.
Plaintiff testified in her own behalf that she had lived in Mexico, Missouri, with her mother and father for about four and a half years; that there had been no change in the circumstances of her living there from nine months prior to the divorce to the time of the hearing; that defendant contributes nothing to her support; that her parents are unable...
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