Parks v. Cook
| Decision Date | 02 May 1944 |
| Docket Number | 26,513 |
| Citation | 180 S.W.2d 64 |
| Parties | RUBY COOK PARKS, (Plaintiff), Respondent, v. KEITH COOK, (Defendant), Appellant |
| Court | Missouri Court of Appeals |
Motion for rehearing overruled May 19, 1944.
Appeal from the Circuit Court, St. Francois County. Hon. Norwin D Houser, Judge.
Edward J. McCullen
This is an appeal from a decree of the Circuit Court of St Francois County, Missouri, based upon a motion to modify an original decree in a divorce suit involving the custody of minor children. Defendant, Keith Cook, filed a motion in said court seeking to modify the original decree of divorce rendered against him therein on November 15, 1939, in which the custody of David Noel Cook and Barbara Sue Cook, the minor children of the parties, had been given to their mother who was plaintiff in said suit.
In his motion to modify defendant alleged that since the decree in said divorce suit there had been a change in the conditions and circumstances of the parties; that defendant, on October 12, 1941, married and is living in Normandy, Missouri; that he is working and is able to care for his said son and daughter; that plaintiff, in July, 1941, married Irvin Parks, and she and her husband' are living with her mother and keep Barbara Sue Cook with them; that both plaintiff and her husband are working at the shoe factory in Flat River, Missouri, and that the boy, David, has been kept In the home of Elmer Wilfong, a brother of plaintiff; that defendant has been unable to take the children to his home for a visit at any time, but can only take then to his parents' home and visit them there; that the boy is now at an age where he needs a father's love and care; that although both parents of said children are Protestants, the boy is sent and has been sent to the Catholic parochial school by the people with whom his mother has left him; that defendant and his wife are willing and able to care for the boy, and that they have a home where the girl, Barbara Sue Cook, can visit and be with her father (defendant) at reasonable end seasonable times.
Defendant prayed the court to vacate and set aside the order awarding the custody of the boy, David, to plaintiff, and to enter a new order awarding the custody of said boy to defendant, and to make an order allowing Barbara Sue Cook to visit her father on reasonable occasions at his home.
After hearing the evidence of the parties, the court sustained the motion of defendant to set aside the decree of November 15, 1939, but refused to grant custody of the boy to defendant, and entered a new decree of its own motion awarding custody of both children to plaintiff, but provided therein for the right and privilege on the part of defendant to visit the children in Bonne Terre, Missouri, at all reasonable and seasonable times not inconsistent with their health and their school attendance, and to take the children to visit their grandparents Cook in Flat River, Missouri, and to visit with defendant, the father, in his home in St. Louis County, Missouri, at reasonable and seasonable times -- defendant to bear the cost of going after and returning the children, and to pay the sum of ten dollars per month for their support and maintenance.
It appears from the evidence that the parties were married in 1934 and lived together until the fall of 1937. The boy, David Noel Cook, was born on May 21, 1935. In the latter part of 1957 defendant went to the state of California to seek work, after having lost his employment at Crystal City, Missouri, when he and a large number of other men were laid off because of a reduction of personnel. Plaintiff went to the home of her mother in Bonne Terre, Missouri, some time during November, 1937, at which time the boy, David, was about two and one-half years of age. About that time the boy was placed by his mother in the home of her brother, Elmer Wilfong, in Bonne Terre, Missouri, because of the mother's financial and physical inability to provide and care for him. On December 26, 1937, which, it will be noted, was only a short time after the boy had been placed in the Wilfong home, plaintiff gave birth to the girl, Barbara Sue Cook.
The parties had been separated almost two years when plaintiff was granted a decree of divorce from defendant in November, 1939, on the ground of desertion. In that decree plaintiff was awarded the custody of both children with an allowance of ten dollars per month to be paid by defendant for their support.
Defendant's testimony at the hearing herein was to the effect that from the time he lost his employment at Crystal City, Missouri, until about August, 1941, he was unable to find any steady work; that the odd jobs he was able to find did not afford him enough for his own subsistence, and that he was given aid by his parents; that for about two months in 1939 he worked on a milk route at Maiden, Missouri, earning $12 per week, and later worked a few months in a restaurant in the City of St. Louis but his earnings there were barely sufficient for his own living expenses. He testified that during all of the period mentioned he was constantly endeavoring to secure employment in St. Louis and in Flat River but was not successful; that in August, 1941, he succeeded in obtaining employment at which he earned $100 per month; that thereafter he worked for a manufacturing company where he received $45 per week for a period of fourteen months; that he later worked for another manufacturing company for six weeks but was unable to continue the work because it affected his nerves; that finally he found regular work at the Emerson Electric Manufacturing Company in St. Louis, where he was employed at the time of the hearing on this motion and was receiving $39 per week.
Defendant further testified that he did not learn until April, 1942, of the order of the court requiring him to pay $10 per month for the support of the children; that he then began sending plaintiff a payment each month, and at the time of the hearing had paid her a total of $122 for that purpose; that during the period when he was unable to provide money for the children he bought them clothing totaling in value more than $90.
The evidence shows that on June 21, 1941, plaintiff married Irvin parks and that they have been living at the home of plaintiff's mother at Bonne Terre, Missouri, since that time; that there are no children of this marriage; that they keep the child Barbara Sue Cook with them; that on October 12, 1941, defendant married Nada Ann Mueller and they have a home in Normandy, St. Louis County, Missouri, but there are no children of the marriage.
It appears from the evidence that the two children were allowed to visit defendant in his home in St. Louis County a few times, but that most of the visits between them occurred when the father would go to Bonne Terre and take the children to his parents' home in Rivermines, Missouri; that for a period of time after the divorce the children made visits to their paternal grandparents, Mr. and Mrs. W. W. Cook at Rivermines, near Flat River, Missouri, but during the year prior to the hearing on this motion they were not permitted to make such visits unless the defendant was with them; that defendant has been unable to visit the children more than once in about four weeks because of the restrictions of his employment end gasoline rationing; that during the last year he has not been permitted to take charge of the boy until after the conclusion of the Catholic church services on Sunday mornings, and has been required to return him to his uncle's home in Bonne Terre on Sunday evenings.
The evidence further shows that the mother and father of the children are both Protestants; that the mother was reared as a Methodist and the father as a Baptist; that the uncle, Elmer Wilfong, plaintiff's brother, is a Catholic; that since he married his present wife defendant has joined the Lutheran church and he and his wife are active members thereof; that the boy at first attended the public school Kindergarten but was later placed in a parochial school by the uncle, and he is taken regularly by the uncle to services in the Catholic church; that defendant and his father, W.W. Cook, objected to the boy being placed in the parochial school and protected against this to the boy's uncle, who told them that as long as the boy lives in his home it is his intention to have him attend the parochial school and the Catholic church. It also appears from plaintiff's own testimony that it is her intention to let the boy remain in the home of Elmer Wilfong so long as the judgment giving her custody of the children stands.
Elmer Wilfong, brother of plaintiff and uncle of the two children testified that he is an electrician and has worked as such for the St. Joseph Lead Company for about twenty-seven years; that he owns his own home in Bonne Terre; that the boy, David, was in his home for about two and one-half years before the divorce of the parties herein; that he was present at the divorce trial and was called to the witness stand and questioned; that the boy has spent a part of his time at plaintiff's home, which is two blocks away from the home of the witness, and stays there overnight sometimes; that the witness has bought seven $25 and one $50 bond for the boy, and has also provided an educational policy for him; that the boy has been attending the parochial school and is affiliated with the Catholic church; that in May, 1941, the witness had a conversation with W. W. Cook, the boy's grandfather, who objected strenuously to the witness's plans for the boy's education; that before the witness sent the boy to the parochial...
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