Pope v. Pope, 28903
| Decision Date | 20 April 1954 |
| Docket Number | No. 28903,28903 |
| Citation | 267 S.W.2d 340 |
| Parties | POPE v. POPE. |
| Court | Missouri Court of Appeals |
Jones, Hocker, Gladney & Grand, Lon Hocker, Franklin Ferriss, St. Louis, for appellant.
Cobbs, Blake, Armstrong, Teassdale & Roos, Henry C. M. Lamkin, St. Louis, for respondent.
HOUSER, Commissioner.
Motion to modify the custody provisions of a divorce decree. The original decree entered in October, 1950 granted the wife a divorce and awarded her the custody of the two children, a girl then aged 7 weeks and a boy 7 years old, together with the right to remove the children to Butte, Montana, reserving to the father the right to see and visit the children at reasonable times and to have the boy for a period not exceeding two months in the summer. In April, 1953 the mother filed a motion to modify so as to secure the custody of the boy from 9 o'clock a. m. to 1 o'clock p. m. on each Sunday during the two-month period, on the ground of changed conditions in that she has moved back to St. Louis; that the religious faiths of the parents differ and that during the two-month period the father has been taking the boy to the father's church and refusing to allow the boy to attend the church of the mother's faith; that the boy is upset by the conflict and that it is to the best interest of the child that he attend one church, the church of the mother's faith, throughout the entire year. Upon a hearing the circuit court made the order of modification as prayed, and the father has appealed.
The sole question for review is whether there has been a change of conditions which, in the best interest of the child, require a modification of the terms of the original custodial arrangement.
Prior to the marriage the parties did not discuss whether their children should be reared in the mother's faith, although defendant told plaintiff that he would accompany his wife to the church on occasions. For a brief period after the marriage he did this, but after a time plaintiff stopped going to church, feeling that her husband did not want her to go. She would not attend any other church. Defendant estimated that he attended the church of his choice four or five times a year, while plaintiff testified that during the last seven years of their marriage defendant did not attend church at all. The parties could not agree on the church to which their son should be sent. Plaintiff refused to permit the boy to attend the father's church although plaintiff testified that defendant never suggested that he be sent to his church. The boy was baptized in the faith of the mother, but the father would not permit him to attend that church. The child apparently was the innocent victim of the strong conviction on the part of each of the contending parents that the child should not be reared in the church of the other parent, each of them seemingly preferring that the child have no religious contacts than to be raised in any church other than his very own. As a result of the disagreement the boy did not attend any church. At the time of the divorce plaintiff signed a settlement agreement with defendant which undertook to cover the subject of custody, but plaintiff did not ask that the agreement or the decree affect defendant's right to send the child to any particular church. That question was never taken up and did not enter into the consideration of the parties.
Following the divorce plaintiff sent her son to her own church regularly. After eight months in Montana, the mother returned to St. Louis for the purpose of securing employment. During defendant's custody in the summers of 1951 and 1952 the boy was taken regularly to the father's church. In May, 1952 defendant remarried, joined the church attended by his new wife, and commenced taking an active part in the work of that church. At the beginning of his 1952 visit with his father the boy stated that his mother had asked him to talk to his father about the church he was to attend. Father and son had a rather lengthy discussion on the subject. According to the father, the boy expressed the view that at present he was unable to decide to which church he wished to belong during his adult life; that he wished to suspend judgment on that subject until he got a little older and that he was quite willing to go with his father to the church the father and his then wife were attending. That was the only occasion the boy discussed the subject of religious instruction with his father.
It was plaintiff's opinion that it would be for the best welfare for the boy to attend the same church all the time. She testified that she had not discussed the matter with the church or school authorities but that in the spring of 1953 the boy asked her to try to arrange with his father for him to attend his own church as in the winter, and once of twice inquired how she was doing, because he would like to have that arrangement. Apparently neither of the parties had any difficulties in the exercise of visitation privileges during the period the child was with the other. The difficulty that has arisen, according to defendant, is related to the difference in the religious beliefs of the parties. Defendant testified that he was not willing to send the boy to the church of the mother's faith while he had custody in the summer although he was not objecting to the boy's attending her church at other times, but that if the boy had asked to be taken to her church he would have taken him. He stated that the boy did not request to be taken to any church nor did he object to the church to which his father...
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