Phipps v. Phipps
| Decision Date | 03 March 1913 |
| Citation | 154 S.W. 825,168 Mo.App. 697 |
| Parties | JOHN P. PHIPPS, Plaintiff in Error, v. DAISY A. PHIPPS now DAISY A. CRAMER, Defendant in Error |
| Court | Kansas Court of Appeals |
Error to Jackson Circuit Court.--Hon. Herman Brumback, Judge.
AFFIRMED.
Judgment affirmed.
C. R Penee and Frank Yeoman for plaintiff in Error.
Hairgrove & Greer for defendant in error.
--This is an appeal from an order made by the circuit court, at its September term, modifying a divorce decree rendered at the April term following, the modification being in reference to the custody of the child. The decree gave a divorce to the husband and directed that he "have the care, custody and control of the minor child, George, born of said marriage and the court reserves jurisdiction of this cause for any further orders concerning the custody of said child."
The modification was made upon motion filed and notice was given and a hearing had. The modification order is as follows "Now plaintiff's motion to modify the decree heretofore rendered herein is by the court heard and sustained to the extent herein mentioned, and it is by the court ordered that the decree be, and it is, modified so as to permit the defendant to have the minor child, George P Phipps, visit her every Saturday, beginning October 21, 1911, from 9 o'clock a. m. until 5 o'clock p. m., but in no event shall said child be kept after dark; it is ordered by the court that said child be delivered to the office of the clerk of the circuit court, at Independence, Missouri, by the plaintiff, each Saturday at 9 o'clock in the morning and returned to the aforesaid place at 5 o'clock in the evening by the aforesaid defendant."
The husband appeals from this order on the ground that the evidence does not show any new facts upon which a change in the custody of the child can be made; that the court is powerless to act unless the motion contains averments, and the evidence discloses facts showing, that since the decree a change of conditions, circumstances, or situation, or character of the parties, has occurred to justify a modification.
The right of custody granted by a decree does not deprive the other party of access to the children unless there is an express provision to the contrary. [Burge v. Burge, 88 Ill. 164.] And even the guilty party is allowed this privilege. [Oliver v. Oliver, 151 Mass. 349, 24 N.E. 51.] Though there have been rare cases in which it has been refused, where, on account of the depraved character of the party, it was deemed best for the children. So that, under the original decree, the mother would have the right to visit her child at proper and reasonable times and in decent orderly manner. But, if this right were denied her by the father, her only remedy would seem to be to apply to the court, in which the decree was granted, for an order requiring him to allow her that privilege. And in such case the father's refusal to let her visit the child would be a new fact on which the court could modify the decree so as to permit such visits. To hold otherwise would put it in the power of one parent to deny, without reason, the other parent of the privilege of seeing the offspring, which both have brought into the world. In the case of Oliver v. Oliver, 151 Mass. 349, 24 N.E. 51, the decree gave the custody of the child to the mother who thereafter refused to let the father see or visit it. The Supreme Court held that even though the evidence, in words, did not show grounds for a modification, yet the trial court could by observation see many things in the character, appearance and manners of the parents testifying, which could not be presented in print, and thereupon refused to hold that there was no evidence on which to base a modification of the decree so as to permit the offending father to see his child.
It will be observed, in passing, that while the terms of the order may have the effect of changing the custody of the child from the father to the mother from 9 a. m. until 5 p. m. of each Saturday, yet the evident intention of the order was to permit the mother to have her minor child "visit her every Saturday" as the order states. But whether the order changes the custody or not, the motion does not ask for a change in such custody. After reciting that part of the decree relating to the custody of the child, the motion prays the court to make the decree provide "that the defendant shall have the right to visit said child and have said child visit her at any and all reasonable times, or, on stated occasions to be fixed by the court." So that, although the court is without power to change the custody of the child, in the absence of new facts to justify such change, this ought not to prevent the court giving the mother a right to visit the child under proper regulations and on certain conditions based merely on the new fact of the father's refusal to let her see it.
But, we will treat the order made as a modification of the decree so far as it relates to the custody of the child, and dispose of the case on that theory.
The order is not complained of because it requires the taking of the child to the clerk's office in Independence every Saturday, regardless of the weather, the health of the child, or the ability or reasonable convenience of the father. The sole claim is that the court had nothing on which it could base an order of any kind.
A judgment for divorce,...
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