Olson v. Olson

• Decision Date: 09 January 1945
• Docket Number: No. 26709.,26709.
• Citation: 184 S.W.2d 768
• Parties: OLSON v. OLSON.
• Court: Missouri Court of Appeals

184 S.W.2d 768

OLSON v. OLSON.

No. 26709.

St. Louis Court of Appeals. Missouri.

January 9, 1945.

Appeal from Hannibal Court of Common Pleas; Roy B. Meriwether, Judge.

"Not to be reported in State Reports."

Action for divorce by John D. Olson against Delores Olson wherein the defendant filed a cross-bill. From an order sustaining a motion to modify the decree of divorce with respect to the custody of a minor child, the defendant appeals.

Affirmed.

Roy Hamlin, of Hannibal, for appellant.

Rendlen, White & Rendlen, of Hannibal, for respondent.

BENNICK, Commissioner.

This is an appeal from an order of the Hannibal Court of Common Pleas sustaining a motion to modify a decree of divorce with respect to the custody of a minor child.

The divorce action was brought by the husband, John D. Olson, against his wife, Delores Olson, and resulted in the entry of a decree in favor of the wife upon her answer and cross bill. The decree was entered on September 13, 1938, in conformity with the written stipulation of the parties, and contained a provision awarding the mother the general care and custody of the minor child, Carole Virginia, with the right of reasonable visitation on the part of the father each Saturday and Sunday. It was further provided that during the months of June, July, and August, beginning with the first week of June in 1939, the father should have the child for the first two weeks, and the mother for the next two weeks and alternately every two weeks thereafter until September; and that during the period of such summer months, regardless of which parent had the child, the other parent should have the right of visitation at reasonable hours and times. There was the still further provision that the father should make certain designated weekly payments to the mother for the maintenance of the child, subject, of course, to the right of the court to modify and alter such provision from time to time as changed conditions might require.

Since the entry of the decree, both parties have remarried, the mother's name now being Delores Thompson.

A prior motion to modify had been filed and overruled; and on August 10, 1943, the father filed the present motion, in which, after reciting the granting of the divorce and the provision made for the care and custody of the child, he set up the following as the basis of his prayer for a modification of the decree:

"Plaintiff states that on September 1, 1942, he duly filed in this court his motion to modify said decree as to the custody and support of said minor child, that on a contested hearing thereon this court on December 29th, 1942, overruled said motion, announcing at the time of so doing: `That this child should not be taken out of the jurisdiction of the court without an order of the court', and that the court would `be very strict that both of them (the parties) carry out the terms of the decree'.

"That the defendant has wrongfully and improperly taken said child out of the jurisdiction of this court and has taken the same and kept the child away, and that the father has been denied and prevented having access to and visitation with said child, as in said decree provided. That plaintiff has called for said child and it and its mother were and are now gone. That plaintiff tendered the weekly award to defendant's mother and it was declined and all information as to said child and its mother refused, this since December 29, 1942.

"This plaintiff states that by reason of defendant's conduct and violation of the court's admonitions and the decree of the court, said child should be taken from the custody of the defendant and fixed and put in the plaintiff, and that plaintiff should be relieved of any liability or obligation to pay any sums whatsoever to the defendant for the support and maintenance of said child."

The prayer was (as indicated above) that the court modify the decree of divorce so as to fix the custody and control of the child in the father, and to relieve the father from his obligation for further payments to the mother for the support and maintenance of the child.

There was a hearing on the motion on October 30, 1943; and on June 1, 1944, the court disposed of the matter by the entry of the following order:

"The evidence on plaintiff's motion to modify, as to the custody of the minor child of plaintiff and defendant, the original decree in this cause * * * having been heard, motion submitted and taken under advisement, and the court having fully considered the matter, does now, because of sufficient changed condition of the parties since said original decree, modify same, so that hereafter the rights of plaintiff and defendant as to the custody of said minor child shall be as follows:

"The father shall have the exclusive custody of said child from June 15th of each year, or from the date of the closing of school for the summer vacation, to September 1st of each year, except that the mother shall have the right of visitation with said child on the last Saturday and Sunday of each month during said period, and for that purpose the child shall be delivered by the father, or someone for him, to the mother at some convenient place in Hannibal, Missouri, to be designated by her, at 9:00 o'clock Saturday morning, and the father, or someone for him, shall get said child in Hannibal, Missouri, on the next day, Sunday, at 4:00 o'clock in the afternoon.

"At the beginning of the time when the father is to have the exclusive custody of said child on June 15th, or at the time of the closing of school for the summer vacation, the mother shall deliver said child to the father, or someone for him, at Hannibal, Missouri, and on September 1st at 4:00 o'clock in the afternoon of each year the father shall deliver said child to the mother at Hannibal, Missouri.

"The mother shall have the exclusive custody of said child from September 1st of each year to the 15th day of the following June or until the closing of school for the summer vacation.

"And now the defendant, the mother, moves the court that said above modification not become effective until plaintiff, John D. Olson, has paid the full amount he owes under the original decree of this court, for the maintenance, support and care of said child. The court overrules said motion and denies said request, for the reason that there was evidence on this and the prior motion to modify showing that since said original decree was entered, the mother, without consent of this court or the knowledge or consent of plaintiff, removed said child from the jurisdiction of this court by taking the child to the State of California and keeping said child out of the State of Missouri for approximately eighteen (18) months, during which time plaintiff was deprived of the right of visitation, and the evidence further shows several months ago the mother, without the knowledge or consent of this court, or of plaintiff, took said child to St. Louis, Missouri, where she now is. That said mother concealed said child, and the mother left no word with her mother in Hannibal as to the whereabouts of the child, and it was several months before plaintiff ascertained that the child was in St. Louis; that the mother refused to return said child to Hannibal, or allow plaintiff the right of visitation.

"Wherefore it is ordered that said modification as hereinabove set forth become effective immediately."

It will be observed that by the above single order, all of which had to do with the modification of the decree, the court not only made certain changes with respect to the custody of the child, but also, for reasons stated in the order, refused to postpone the effective date of the same until such time as the father should pay the mother whatever amount he was in arrears under the provisions of the original decree.

From the order thus entered, the defendant mother has appealed to this court, where she argues that because of the alleged insufficiency of both the pleadings and the evidence, the court acted erroneously in modifying the decree, and was in any event in error, if the decree was to be modified, in not making the effective date conditional upon the payment in full of all sums due the mother under the terms and provisions of the original decree.

At the outset of the case, the respondent father calls attention to the fact that after the entry of the order sustaining the motion to modify, the mother filed no motion for a new trial, in consequence of which he insists that the evidence taken on the motion is not reviewable in this court, and that we are to be confined in our review to the record proper in the case, which consists of the motion itself and the order of the court from which the appeal was taken.

There has frequently been much difference of opinion at the bar as to when, in the case of after judgment motions, a motion for a new trial is to be required as a prerequisite to the right of the appellate court to review errors occurring in the lower court in connection with the hearing on the particular motion. The problem has been largely solved, however, by dividing such after judgment motions into two broad...