Newlon v. Newlon

• Decision Date: 21 May 1928
• Docket Number: No. 16148.,16148.
• Citation: 6 S.W.2d 669
• Parties: NEWLON v. NEWLON.
• Court: Missouri Court of Appeals

6 S.W.2d 669

NEWLON v. NEWLON.

No. 16148.

Kansas City Court of Appeals. Missouri.

May 21, 1928.

Appeal from Circuit Court, Bates County; C. A. Calvird, Judge.

"Not to be officially published."

Action by Elsie Newlon against Thomas D. Newlon. From an order overruling defendant's motion to modify a decree for plaintiff affecting defendant's rights to visit his two minor children, defendant appeals. Affirmed.

D. C. Chastain and Jackson & Jackson, all of Butler, for appellant.

De Armond & Maxey, of Butler, for respondent.

ARNOLD, J.

This is an appeal from an order of the circuit court of Bates county, Mo., overruling a motion to modify a decree in a suit for divorce affecting the rights of defendant to visit his two minor children.

The facts disclosed are that plaintiff and defendant were married December 18, 1918, and lived together as husband and wife until the latter part of March, 1926. The record shows the parties were not harmonious and a temporary separation occurred about the date last above mentioned, at which time it was agreed that plaintiff and the two minor children born to them were to go and live at the home of plaintiff's father. This was done, but after a few days of separation a reconciliation was effected and the parties resumed their marital relations and lived together at their home in Butler, Bates county, Mo., until about June 1, 1926, when a final separation took place. The home was broken up and the personal property divided between the parties. At that time plaintiff and the two children were taken to the home of plaintiff's father by defendant, and there they have since remained.

Subsequent to the final separation defendant was at the home of plaintiff's father more or less frequently; at times he took the children out with him in his automobile and had them in his custody for a few hours at a time, but always returned them to the mother. The last of such occasions appears to have been on July 5, 1926, the day being celebrated as the Fourth of July, the Fourth having fallen on Sunday. From that time on defendant seems to have made no determined effort to see the children until during the May term, 1927, of the circuit court of Bates county, when he filed a motion to modify the decree of divorce.

It appears a decree of divorce was granted plaintiff at the February term, 1927, after answer and appearance by defendant; that the bonds of matrimony were severed and plaintiff's maiden name of Silvers was restored to her. And it was—

"further ordered, decreed, and adjudged by the court that the care and custody of the minor children, Barbara Newlon and John Sam Newlon, be and the same is hereby awarded to the plaintiff."

The court further decreed and adjudged that defendant pay the sum of $25 per month for the support of each minor child, aggregating the sum of $50 per month, beginning February 10, 1927, and payable monthly to the circuit clerk of Bates county, and by him to plaintiff. Prior to the divorce the parties had agreed upon a property settlement and that plaintiff should have the custody of the children subject to the rights of defendant to see them at reasonable times and places as the same should be provided by the court's decree. The contract was executed February 2, 1927, and was signed by plaintiff and defendant and also by the father of plaintiff, J. A. Silvers. Respecting the children, said contract provides:

"(1) The first party will enter his appearance at the February term to the second party's divorce suit and consent to a trial thereof at the February term; and if a decree of divorce is granted the second party, it shall provide:

"(a) The custody of the two minor children of the parties shall be awarded to the second party, with the right of the first party to see the said children at reasonable times and places, as the same shall be provided by the court's decree.

"(b) The first party is to provide for the support of the children, and the decree shall fix the amount to be paid at $25 per month for each child.

"The parties recognizing the right of the court to modify the decree as to the custody and maintenance of the children from time to time."

It appears in evidence that at the February term, 1927, the question of the right of defendant to visit the children was discussed. The court, not having included a formal order relative to the matter in its decree, made an oral declaration requiring plaintiff to permit defendant to see the children on each Sunday between the hours of 1 and 5 o'clock p. m., but there was no formal order entered to that effect. The evidence shows plaintiff did keep the children at the home of her father, during the hours suggested by the court, from the date of the decree up to the time of the filing of defendant's motion to modify.

Defendant's motion to modify was filed at the May, 1927, term of the court, and the court was asked therein to fix a time and place for defendant to visit his children and that the place for such visits be other than the home of plaintiff's father. The motion is as follows:

"The defendant respectfully shows to the court that heretofore and at the February term, 1927, of this court the plaintiff and the defendant were divorced, and that, by the decree of divorce entered, the plaintiff was given the custody of the two minor children of the parties hereto.

"The defendant respectfully shows that the two said minor children are maintained at the home of plaintiff's father near the city of Butler, and that plaintiff has refused to allow the defendant to have the custody of the said children at any time or to see them at any place other than at the residence of her father, and that the relations between the plaintiff's father and the defendant are such that he cannot call on his children at said place.

"The defendant states that the plaintiff is holding the entire custody of the said children and refuses to permit the defendant to see said children and is causing them to forego their true name and to be called by the name of Silvers. The defendant states that in a contract entered into with the plaintiff prior to the divorce it was agreed that the defendant was to see the children at reasonable times and reasonable places, to be fixed by the court for such visiting by the defendant of his said children.

"Wherefore the defendant prays for a proper order of the court allowing him to have the custody of his said children at reasonable times and reasonable places."

There was a hearing on the motion, much testimony was introduced by both parties, and at the close thereof the court entered of record the following order modifying the decree:

"Now on this 5th day of July, 1927, this cause coming on for hearing upon the motion of the defendant to modify the decree of this court heretofore rendered as to the custody of the two minor children of the parties hereto, the parties appearing in person and by their attorneys, and this cause is submitted to the court. And the court, having heard the evidence and considered the same, doth overrule the defendant's motion as to the custody of said children, and the court doth make the following order as to the right of the defendant to see said minor children as follows:

"`It is ordered by the court that the defendant be permitted to be with and visit, the children, alone, or in company with his mother or any reputable citizen, at the residence of J. A. Silvers one day in each week, preferably on Sundays from 1 o'clock to 5 o'clock in the afternoon.'"

Defendant, not being satisfied with the court's modification of the decree, filed a timely motion for a new trial, which was overruled, and defendant has appealed to this court.

We have carefully read the testimony contained in the bill of exceptions as is our duty. One thing is clear from the evidence, i. e., this case is one of those occurring too frequently wherein the domestic affairs of parties become "scrambled," as it were, and where neither party seems willing to make concessions which might lead to harmony. This court, however, is not required to pass upon the right or wrong of these quibbles which seem of great moment to the parties, but to us seem trivial. By way of obiter dictum it may be said we realize that circumstances sometimes are present in such domestic broils or misunderstandings which to this court, viewing matters from the printed pages of the record, may seem trivial, but to the parties themselves they arise almost to the dignity of tragedy.

We think it unnecessary to set out in detail all the evidence adduced at the hearing on the motion to modify and shall refer to it in substance only as the points for determination arise. The testimony shows that plaintiff's family, including her father and mother, is of good reputation and high standing; that defendant's mother lives on a farm near Butler; that defendant has a brother and sister living in Butler; and that they are all good citizens with characters unquestioned. The testimony also shows that defendant is a traveling salesman, and that he is at home, in Butler, practically every week-end. There was an attempt on the part of plaintiff to show that defendant is not a proper person to have the care and custody of said minor children, for the reason that prior to the granting of the divorce he had been seen drunk on occasion and at times was known to have associated with women of implied questionable habits, but the court held this testimony within proper bounds, and it may be concluded the court did not consider it of importance in rendering judgment on the motion to modify.

The testimony is practically undisputed that there exists a very strained relation between defendant and plaintiff's father; and it is def...