P-------- D-------- v. C-------- S--------, 8404

CourtCourt of Appeal of Missouri (US)
Citation394 S.W.2d 437
Docket NumberNo. 8404,8404
PartiesP_____ D_____, Plaintiff-Respondent, v. C_____ S_____, Defendant-Appellant.
Decision Date11 September 1965

Keith V. Williams, Springfield, for defendant-appellant.

Douglas & Douglas, Neosho, for plaintiff-respondent.

STONE, Judge.

This appeal brings in review another in the endless caravan of broken homes and separated families moving across the judicial scene. We cloak the actors with anonymity that the innocent child, whose custody is in issue, may not be humiliated further in years to come by a recorded recital of parental conduct. On May 10, 1961, the circuit court entered a decree in a divorce suit brought by the mother finding that she was of 'good moral character' and was the innocent and injured party, granting her a divorce, awarding to the father major custody of the child, a son then nine years of age, and to the mother minor custody during the months of June, July and August each year, and ordering the father to pay $12 per week to the mother while the son was in her custody. The pleadings in the divorce suit are not before us, and we are not informed as to the ground on which the mother sought and was granted a decree or as to what considerations motivated the custodial provisions. We learn from the record in this custody proceeding that the parents also had two daughters, both of whom were married and accordingly were not mentioned in the decree. One of these daughters (to whom we hereinafter refer as daughter P), then twenty-two years of age, resided with her husband and child in the county seat town in Southern Missouri where the parents had lived. The other daughter (to whom we refer as daughter B), then twenty years of age, resided with her husband in metropolitan area in California. The father was forty-three years of age at the time of the divorce. The mother's age is not disclosed.

The present proceeding was instituted by the filing of the father's motion to modify on June 20, 1964, in which he prayed that the mother's minor custody during June, July and August each year be terminated and that he be awarded full care and custody of the son. On June 24, 1964, the mother answered the father's motion and filed a counter-motion to modify in which she prayed that the father's major custody be terminated and that she be awarded full care and custody of the son. At the conclusion of the trial on August 7, 1964, the court denied the father's motion to modify, found that 'conditions have changed as alleged in [the mother's] counter-motion to modify,' awarded major custody to the mother for eleven months during each year and minor custody to the father for the month of July each year with the father to pay the son's travel expenses between the mother's home and the father's home, granted permission to the mother to take the son out of the state, ordered that other provisions of the original decree remain in force, and taxed the costs against the father. He appeals.

It is a trite principle that a custodial order once made becomes as conclusive as any other order [Schumm v. Schumm, Mo.App., 223 S.W.2d 122, 126; Brake v. Brake, Mo.App., 244 S.W.2d 786, 801; Lehr v. Lehr, Mo.App., 264 S.W.2d 35, 37] and may be disturbed only upon proof of changed conditions subsequent to entry of the order coupled with a showing that modification of the order would promote the best interests of the child or children involved. Hirsch v. Hirsch, Mo.App., 366 S.W.2d 484, 489(3-5); Hurley v. Hurley, Mo.App., 284 S.W.2d 72, 73(1-3); Frame v. Black, Mo.App., 259 S.W.2d 104, 108(4).

As is so frequently true, the charges in the respective motions outdistanced the proof, the father's charges more egregiously (so we think) than the mother's. And, since our decision must be predicated on the evidence adduced rather than on the accusations pleaded, we pass the formal motions without comment concerning their content and proceed to a review of the pertinent and material facts.

After entry of the decree of divorce on May 10, 1961, the mother with the father's permission (so she said) took the son with her to the home of daughter B in California. Shortly after July 4, 1961, the father made a trip to California for the purpose of returning the son to Missouri, pursuant to the mother's request (so the father testified) 'because she couldn't do nothing with him [the son].' The father's description of the 'kind of deal' he found was that 'I had to get his [the son's] hair cut, it was growed down to his shirt, and he had his shoes kicked off his feet and he didn't look good at all.' The mother testified, without denial by the father, that he did not pay the child support of $12 per week, as required by the original decree, while the son was in her custody.

After the father and the son returned to Missouri in July 1961, both resided in the home of daughter P and she cared for the son until about June 15, 1962, when the father announced that 'he was getting married and . . . was moving' to a smaller Missouri town some fifteen miles distant. During the remainder of the Summer of 1962, the son was in the care and custody of the father's fiance. During July 1962 (so the fiance testified) or during August 1962 (so the father said), the father moved to a larger Missouri city some ninety miles distant; and during 'the last of August' 1962 his fiance and his son moved to the same city where, on September 18, 1962, the father and his fiance (hereinafter referred to as the stepmother) were married and thereafter continued to reside to the time of hearing, to wit, August 7, 1964. The stepmother's age is not disclosed, but she had two sons by a prior marriage, one of whom was (at the time of hearing) fifteen years of age and lived in the home with her, the father and his son, and the other of whom was twenty years of age, married, and not a member of the same household.

The mother did not see the son between July 1961, when the father returned him from California to Missouri, and June 1963, when the mother came to the home of daughter P in Missouri and, for a period of some seven weeks thereafter, had custody of the son in that home. During the Summer of 1962, the mother 'didn't feel too good' and 'was sick.' Being unable to come to Missouri, the mother anticipated that daughter P 'was going to visit us [in California] that summer for sure' and would bring the son with her, but 'something went wrong' and daughter P did not make the trip. The mother asserted, and the father denied, that through daughter P, as an intermediary, the mother unsuccessfully had endeavored to arrange for the father to send the son to California by airline. In any event, the mother had no custody of the son in the Summer of 1962.

At this point, we take notice of the evidence pertaining to several incidents during the winter following the marriage of the father and the stepmonther on September 18, 1962. The first of these was the stepmother's refusal and return of a Christmas package mailed by the mother to the son. The father's testimony concerning this was: 'Q. Were you at home when a package addressed to [the son] was refused? A. There wasn't no package at the house to be refused. Q. You are sure of that? A. Positive.' The stepmother quickly conceded that she had received 'a notice . . . that there was a package' from the mother addressed to the son and that she had refused that package. Her 'reasons' for refusal were: 'Well, his [the son's] mother had never contacted him in no way since I had took the child, and I really felt like she had been unfair to him, and it did irritate me and I returned it, and I wrote her a note, and I am very sorry; I am very sorry for that.'

The 'note,' to which the stepmother alluded, was dated January 8, 1963, and (omitting the date and the one-word salutation, to wit, the mother's given name) read as follows: 'Just a line to let you know we did not claim the package you sent so it will be returned to you. Since you walked out on [the son] and denied yourself a mother's rights--we just ask one favor of you and that is--(To Leave us alone). We don't need any charity from you so all your packages and letters to here will be unclaimed.' The father admitted that he had read the 'note' before the stepmother had mailed it.

We pause to agree with the father's counsel that prior transgressions of the moral law do not necessarily require that a parent be denied or deprived of custody of a minor child [Johns v. McNabb, Mo., 247 S.W.2d 640, 643], but we hasten to observe that we perceive no strong and impelling evidence of repentance and that the trial judge was in a far better position than we are to make a judgment as to whether the stepmother's protestation that she was 'sorry' (not accompanied by any acknowledgement of wrongdoing or indication of penitence on the part of the father) was a manifestation of soul-centered sincere repentance or simply a skin-deep superficial offering motivated by the exigencies of litigation.

Daughter P testified that, when the father came to her home during the Christmas season of 1962, 'I told him since I hadn't seen [the son] to give him his gift, that there it was, and I started to hand it to him and he gave it back to me and said that [the son] could not have the gift, that [the stepmother] would not accept it and he wouldn't accept it.'

When their grandfather died in February 1963, both daughter B (from California) and daughter P saw their father at the grandparents' home in the county seat town where the parents had lived prior to their divorce and where daughter P still lived. Learning from the father that he and the son were staying temporarily at the nearby town where the stepmother had lived prior to her marriage, daughter B and daughter P drove there to see their younger brother. They found him in a trailer where the stepmother's older son and his wife lived. As daughter B related it, when her brother saw her 'he started crying...

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