Neustaedter v. Neustaedter
| Decision Date | 04 September 1957 |
| Docket Number | No. 29760,29760 |
| Citation | 305 S.W.2d 40 |
| Parties | Barbara Rich NEUSTAEDTER (now Barbara Simon) (Plaintiff), Appellant, v. Helmut J. NEUSTAEDTER (Defendant), Respondent. |
| Court | Missouri Court of Appeals |
Adolph K. Schwartz, St. Louis, Chapman, Schwartz & Chapman, St. Louis, of counsel, for appellant.
Hal A. Hamilton, St. Louis, for respondent.
This is an appeal by the mother of a minor child from an order modifying a divorce decree with respect to provisions for the temporary custody of the child. We shall refer to the parties as plaintiff and defendant.
A petition for divorce was filed on July 3, 1951, by the plaintiff (appellant) in which she alleged she was married to the defendant (respondent) on the 27th day of June, 1948, and that there was one child born of the marriage on November 7, 1949, named Randall James.
On July 23, 1951, a decree of divorce was entered in favor of plaintiff. The decree awarded the care, custody and control of Randall James, the minor child of the parties, to the plaintiff until the further order of the court. Plaintiff was awarded the sum of $40 per month for the support and maintenance of said minor child and the defendant was awarded temporary custody of said minor child for thirty days a year after said child became three years of age.
Thereafter, on September 19, 1955, defendant filed a motion to modify the decree of divorce with respect to the custody of the minor child. In his motion he alleged that his former wife had remarried and was now Barbara Simon and that he had remarried and was permanently residing in Denver, Colorado. He asked that he be granted temporary custody of said minor child during the month of July of each year and that he be permitted to have said custody at his home in the city of Denver, Colorado. He also asked that his parents be allowed the right of visitation with said minor child.
Plaintiff filed a counter-motion to modify the decree of divorce with respect to the support and custody provisions of the minor child. In her counter-motion she asked to have the support and maintenance of the child increased from $40 per month to $125 per month. She also asked that the right of temporary custody be denied the defendant, alleging that the permanent residence of the defendant in Denver, Colorado, was not a good environment for the child and that defendant's recent visits with the child have been disturbing to the child.
The trial court after a hearing entered its order modifying the decree of divorce. The part of the order modifying the decree of divorce relevant to the issues presented by plaintiff in this appeal is as follows:
' * * * the defendant shall have temporary custody of minor child, Randall James, on alternate Sundays, between the hours of 10:00 A.M. and 6:00 P.M., and when unable to exercise this privilege the paternal grandparents, Mr. and Mrs. Aescher Neustaedter, are to have the custody during the same period, and defendant shall have the further temporary custody of said minor child during the month of July of each year and is not permitted to take the child out of the State except with the approval of the Court, until the further order of the Court.'
The court further ordered the defendant to pay the plaintiff the sum of $50 per month for the support and maintenance of the said minor child. Defendant did not appeal.
The only point raised by plaintiff is that the trial court erred in modifying the decree of divorce by awarding temporary custody of the child to the paternal grandparents when the father of the child is unable to exercise his privilege of temporary custody on alternate Sundays. It is the contention of the plaintiff that the court erred in this respect because there was no showing that she was not a fit mother or that the welfare of the child demanded that the said grandparents have temporary custody on the Sundays defendant was unable to exercise his privilege of temporary custody.
At the threshold of this controversy we are faced with the contention made by the defendant that the alleged error relied on by the plaintiff was not presented to the trial court in her motion for new trial (citing the provisions of Supreme Court Rule 3.23, 42 V.A.M.S., and Section 512.160 RSMo 1949, V.A.M.S.) and, therefore, plaintiff's point should not be considered by this court. This contention must be ruled against the defendant.
Plaintiff's motion for new trial complains about the order and judgment of modification as made and clearly charges that the defendant failed to prove any change of circumstance or condition which would authorize the order made by the court and said motion also charges that the defendant failed to prove that the order as made was for the best interest of the minor child. We think the motion for new trial adequately preserved for appeal the point relied on by the plaintiff. However, there is another answer to the contention of defendant to be found in the case of Montgomery v. Montgomery, Mo.App., 257 S.W.2d 189, involving a proceeding to modify a decree of divorce, wherein we held, pursuant to the provisions of Section 144(d) of the New Civil Code, Laws of Missouri 1943, page 388, now Section 510.310, subd. 4, RSMo 1949, V.A.M.S., applicable to cases tried upon facts without a jury, that questions of the sufficiency of the evidence to support the judgment in cases tried as provided by the aforesaid section may be reviewed on appeal even though appellant failed to file a motion for new trial. The sole point presented by the appellant in the instant appeal attacks the sufficiency of the evidence to sustain the order awarding temporary custody of the child to the paternal grandparents. This is an additional reason why the contention of the defendant must be overruled.
The sole controversy that remains, as stated heretofore, is whether or not the trial court under the evidence had the right to award temporary custody privileges to the paternal grandparents. In disposing of this question we must keep in mind some well recognized principles of law that govern proceedings that have for their purpose the modification of a decree of divorce.
It is our duty to review the whole record and we must decide this case on its merits, having uppermost in mind the predominant rule that the best interests of the child must be served. Wilson v. Wilson, Mo.App., 260 S.W.2d 770; Hurley v. Hurley, Mo.App., 284 S.W.2d 72. Also, we must be mindful that defendant had the duty to show changed circumstances and conditions since the original decree of divorce was entered which, in the best interests of the minor child, required the original decree to be modified, Wilson v. Wilson, supra; Hurley v. Hurley, supra.
We think it pertinent to point out that only the original parties to the divorce suit are proper parties to a motion to modify a decree of divorce, and no other person, even a grandparent, can properly litigate a modification of a divorce decree. Wilson v. Wilson, supra; Schumacher v. Schumacher, Mo.App., 223 S.W.2d 841; Tines v. Tines, Mo.App., 216 S.W. 563. We held in the Schumacher case that a divorce proceeding, with all its incidents, is personal to the two spouses, and that the court retains jurisdiction over a minor child for the purpose of settling the right of custody as between the claims of the child's parents.
While the welfare of the child is the paramount concern in child custody proceedings, it is presumed under the law, until otherwise shown, that it is to the best interest of the child to be in the custody of one of his parents. With such prevailing presumption, a showing against the present must be made, or there must be some special or extraordinary reason why such custody should not be in the parent. State ex rel. Crockett v. Ellison, 271 Mo. 416, 196 S.W. 1140; Madigan v. Madigan, Mo.App., 260 S.W. 485; Vance v. Vance, Mo.App., 203 S.W.2d 899; Tuter v. Tuter, Mo.App., 120 S.W.2d 203. All of the aforesaid cases hold that, absent a showing of unfitness, a parent's claim to the custody of a child must prevail over the claims of all other persons. To the same effect see Wilson v. Wilson, supra, and Abel v. Ingram, 223 Mo.App. 1087, 24 S.W.2d 1048.
There is no charge by the defendant that since the decree of divorce was granted plaintiff has become unfit to have custody of her child. To the contrary, is the testimony of the defendant, who, when asked if he had any complaint about the way his former wife was raising the child,...
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