Perr v. Perr
| Decision Date | 18 November 1947 |
| Docket Number | No. 27296.,27296. |
| Citation | 205 S.W.2d 909 |
| Parties | PERR v. PERR. |
| Court | Missouri Court of Appeals |
Appeal from Cape Girardeau Court of Common Pleas; J. Henry Caruthers. Judge.
"Not to be reported in State Reports."
Action for divorce by Golda M. Perr (Green), against Eberhardt Perr, involving custody of a child of the parties. From an order modifying the divorce decree as respects custody of the child on defendant's motion, plaintiff appeals after overruling of her motion for a new trial.
Reversed and remanded.
Strom & Spradling and R. P. Smith, all of Cape Girardeau, for appellant.
J. Grant Frye and Gerald B. Rowan, both of Cape Girardeau, for respondent.
BENNICK, Commissioner.
This is an appeal from the order of the Cape Girardeau Court of Common Pleas modifying a decree of divorce as respects the custody of a minor child.
The action for divorce had been brought by the wife, Golda M. Perr, against her husband, Eberhardt Perr. A son, James Edward, had been born to the parties on February 15, 1943. A decree of divorce was entered in plaintiff's favor on March 10, 1944, awarding general custody of the child to plaintiff, subject to the right of defendant to visit the child and have the child visit him "at all convenient and proper times". It was such indefinite provision respecting the right of visitation that eventually gave rise to the present controversy. The decree had obligated defendant to pay plaintiff the sum of $15 a month as maintenance for the child, and plaintiff admitted that defendant had made his payments with regularity down to the very time of the hearing in the court below.
As already indicated, the arrangement made for defendant's visitation with the child had never worked out entirely satisfactorily. It had been defendant's custom to call for the child twice a week, usually on Tuesdays and Fridays, but in many instances he would find that it would not be agreeable to plaintiff for him to have the child on such occasions. According to defendant's testimony: "Sometimes she would let me have him, sometimes she wouldn't, sometimes I would get him once a week, then I wouldn't get him for three or four weeks, sometimes maybe twice a week." Moreover it would seem that the excuses plaintiff offered were frequently matters relating entirely to her own personal convenience, such as that she "had to go some where," "didn't have time to get ready," or "was leaving town." However on other occasions when the child would have a cold or some other indisposition, plaintiff was unquestionably acting for the child's own welfare in insisting that he not be taken away until his recovery was complete.
The situation was further complicated when plaintiff married one Green on November 4, 1945. It had been defendant's custom to call at plaintiff's place of residence for the child, and he had continued this practice after her remarriage. However after April 4, 1946, he was informed that at Green's insistence he would no longer be permitted to call at the Green home, and that instead it would be necessary that he call for and return the child to plaintiff or Green at a drug store or some other public place in the business section of the city. Defendant refused to accept the imposition of any such conditions upon his right of visitation, and as a consequence had not had the child in his possession since April 4, 1946. While there was some little pretense by plaintiff that defendant had had the child on occasions in both May and June of 1946, the latter testified positively to the contrary, and the circumstances seem to bear him out in this particular controversy.
There was also a dispute as to what had occurred on April 4th when defendant returned the child to plaintiff at her home. Plaintiff testified that defendant upbraided her because she had not been at home when he had called for the child on the previous Friday, and threatened that unless she would agree to notify him the night before in the event she did not intend to be at home on the days when he customarily called for the child, he would ask that the decree be modified so as to award custody to him. Even if plaintiff's account of the occurrence was correct, it would lend no support for her position, but instead would disclose that defendant had had a very just cause for complaint. When plaintiff planned to attend a family picnic and take the child along, the slightest regard for defendant's rights would have prompted her to advise him in advance so that he would not be put to the trouble of calling only to find no one at home. However defendant testified to an entirely different state of facts from plaintiff, that is, that when he returned the child on this particular occasion, he handed plaintiff her monthly allowance of $15, and was informed that unless he would agree to pay more in the future, she would see to it that he did not have the child again. According to his testimony, she called attention to the provision of the decree that he be allowed to visit the child "at all convenient and proper times," and stated that unless he was willing to increase the allowance, "it won't be convenient from now on."
It was shown by plaintiff's testimony that the incident in question led up to Green's insistence that defendant no longer call at their home, but instead make arrangements to get the child at some public place uptown. Plaintiff testified that she was in tears over the occurrence, and that when Green came in he endeavored to console her, and later, when defendant telephoned and asked to speak to plaintiff, apparently denied his request. Plaintiff also conceived the idea, or at least pretended to believe, that defendant had said things indicating a desire to win her back, and so informed Green, who assumed the truth of what plaintiff had told him, and very naturally resented any such conduct on defendant's part.
It was in this state of affairs that defendant, on July 26, 1946, filed a motion to modify the decree by making suitable provisions for his visitation with the child, or by granting him absolute custody of the child.
Following negotiations between counsel for the respective parties, an order was entered by stipulation on September 18, 1946, modifying the decree so as to provide that defendant should have the right to visit the child one afternoon and evening each week and on such occasions to take the child to his own home if he so desired, and also to have possession of the child for a period of two weeks during July of each year.
Despite the more specific definition of defendant's visitation privileges, the controversy between plaintiff and defendant became steadily more aggravated; and on October 3, 1946, defendant filed a motion asking the court to set aside the order of September 18th, and to enter a still more explicit and detailed order regarding the rights and duties of the respective parties. As the basis for his motion defendant charged that plaintiff had refused to abide by the provisions of the order of September 18th; had used vile and obscene language in denying him the privilege of visiting the child; and had threatened him with personal violence if he called at her home.
On October 10, 1946, the court vacated its order of September 18th, and set the cause down for hearing on defendant's original motion to modify. In due course a hearing was had, and on February 13, 1947, the court sustained defendant's motion and entered an order modifying the decree so as to provide that defendant should have the custody of the child for nine months each year from September 1st to May 31st inclusive; that plaintiff should have the custody of the...
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