Prudot v. Stevens
| Decision Date | 05 April 1954 |
| Docket Number | No. 21968,21968 |
| Citation | 266 S.W.2d 756 |
| Parties | PRUDOT v. STEVENS. |
| Court | Missouri Court of Appeals |
S. Ralph Stone, Independence, Walter A. Raymond, Kansas City, for appellant.
Gilbert R. Titus, Independence, for respondent.
This is an appeal from a judgment modifying a prior divorce decree with reference to the custody of two children.
On January 21, 1948, the Circuit Court of Jackson County, Missouri, granted plaintiff a divorce from defendant and awarded her the custody of two minor children, James Vernon Stevens, then 5 years of age, and Robert Ernest Stevens, then 1 year of age, with the right of visitation by the defendant; and allowed plaintiff $15 per week for the support of the children.
In July, 1950, defendant filed a motion to modify the decree by transferring custody of the children to him, for the reason that plaintiff had removed the children from the jurisdiction of the court of Jackson County, Missouri, without permission of the court, and had taken them to another state, thereby depriving him of his right of visitation. In October of that year, the motion was sustained, by agreement of the parties, and the order of custody was modified to give defendant custody of the children during the summer vacation of each year, and plaintiff the custody during the school term, and also the right of removing the children from Missouri to Indiana, and required the defendant to pay the plaintiff $15 per week during the time she had custody of the children. The payments were regularly made and are not an issue at this time.
In July, 1952, defendant filed a second motion to modify the decree, and asked that he be given exclusive custody of the children for the reason that plaintiff, during the month of November, 1951, had abandoned the children by leaving them with her mother and father in Lynnville, Indiana, and going to Phoenix, Arizona; that both her mother and father work and are not in a position to take care of the children; that when he received the children for the summer vacation of 1952, they were in a highly nervous state, but that since he has had them, they are greatly improved in health and have begged him not to send them back to their grandparents; that he has a good home and is in a position to give them proper care, education and religious training.
After a trial, the court sustained defendant's motion, awarding defendant the custody of the two children with the right of plaintiff to visit them 'at all reasonable hours at the home of the defendant'. After moving unsuccessfully for a new trial, plaintiff brings this appeal.
She contends that the evidence is insufficient to prove a substantial change of conditions since the first order of modification made in 1950 to justify the court in making this second order of modification; and that the welfare of the children does not require a change of custody.
In a proceeding of this nature, it is the duty of this court to review the evidence and the law to determine whether the moving party has shown by substantial and credible evidence that there has been such a change of conditions and circumstances, occurring since the entry of the first modification of the decree, sufficient to require a change in the custodial arrangements. In determining this question, the welfare of the children is the supreme and controlling consideration. A motion to modify a divorce decree is an independent proceeding and the motion is treated as a petition in an original action; it must state a claim upon which relief may be granted and must be based upon new facts, conditions and circumstances arising or coming into existence since the rendition of the prior decree, and the burden of proof rests upon the movant to establish such new facts, conditions and circumstances. Hayes v. Hayes, Mo.Sup., 252 S.W.2d 323; Baer v. Baer, Mo.App., 51 S.W.2d 873; Drew v. Drew, Mo.App., 186 S.W.2d 858. We recognize the rule that where there is a conflict in the testimony, due deference is given the findings of the trial court, but we are not bound by such findings, because if that were so there would be little or no occasion to appeal in any case in which the rule of due deference applies. It remains our duty to reach our own conclusions and render such judgment as the evidence, in our opinion, warrants. Elliston v. Elliston, Mo.App., 215 S.W.2d 63, 69.
With these general principles of law in mind, we examine the evidence.
Plaintiff and defendant were married in May, 1941, separated in October, 1947, and were divorced in January, 1948. At the time of and prior to their marriage, they both lived in or near Lynnville, Indiana, and after their marriage they lived with plaintiff's parents in Lynnville for a time, and then defendant was inducted into the military service and was away for approximately 30 months. During that time, the older child was born. After defendant returned from military service, they lived with plaintiff's parents for a short time, and eventually moved to Jackson County, Missouri. The younger child was delivered by a Caesarean operation. After being divorced in January, 1948, plaintiff married her present husband, Prudot, in September, 1948, and defendant married his present wife in May, 1948. Mr. Prudot had been divorced by a former wife by whom he had four children and in that proceeding he was required to contribute to their support. In 1950, plaintiff and Prudot left Jackson County, missouri, and moved to Lynnville, Indiana, and shortly thereafter defendant filed a motion to modify the divorce decree relative to the custody of the two children because plaintiff had removed them from the jurisdiction of the Circuit Court of Jackson County, and denied him the right of visitation which was allowed under the divorce decree. This motion was sustained by consent of the parties and the decree was modified, giving custody of the two children to the plaintiff during the school term and to the defendant during the summer vacation. That order of modification was entered October 20, 1950. The plaintiff had the children with her in Lynnville during that school term and defendant had them with him in Jackson County during the summer of 1951, and then returned them to the plaintiff in time for the fall term of school. In December, 1951, plaintiff left Lynnville with her husband and went to Phoenix, Arizona, leaving the children with her mother and father in Lynnville. This move is the cause of the present controversy and led to the filing of the instant motion.
Defendant testified at the hearing on this motion in February, 1953, that the youngest child was then six years of age and the eldest would soon be ten; that he was a police officer of the city of Independence with a salary of $278 per month; that when he went to Lynnville in May, 1952, to get the children, he found them staying at the home of their grandparents; that this home is modern and is located in the business section of Lynnville and on the main highway; that the grandfather operates a barbershop in the home and the grandmother cooks at the school where hot lunches are served; that the older boy was in school and the youngest was there with the grandfather; that he learned the plaintiff was then in Phoenix, Arizona, 'selling something'; that she had been there since the prior December; that the physical condition of the youngest boy was apparently very good, but the older boy was in a very nervous condition and quite upset; that he was on crutches due to a condition which had existed for approximately three years; that his nervous condition was very bad and at nights he would wake up screaming for 'daddy to come and get him'; that when he returned to Missouri with the boys, he took the older one to the juvenile authorities and they referred him to a doctor who prescribed certain treatment and exercises, which he had faithfully carried out; that on a prior occasion when he had gone to Lynnville to see the boys, he found the youngest one at the great-grandmother's home in a town about 10 miles from Lynnville; that he felt the plaintiff (the mother) was neglecting the children and he filed the present motion for exclusive custody and got service on her at Phoenix; that shortly thereafter, she came to Jackson County and he permitted her to see the children at various times; that on August 25, 1952, plaintiff came to his home and stated that she wanted to take the boys back to Indiana with her; that he refused this request, which precipitated an argument and the plaintiff used violent and improper language and he told the boys to go into the house; that his present wife started into the house with the boys when the plaintiff called her vile names and struck her with a purse, and a fight between the two women ensued and he separated them; plaintiff was arrested and put under bond and the case was continued, pending the final disposition of this motion; that he gave consent for the plaintiff to go to the school and visit the boys, and on one occasion she and her mother were there and created such a disturbance that the principal ordered the defendant to take the boys home; that from letters and cards written the boys by the plaintiff he had learned that she had at different times been in the states of Oklahoma, New Mexico, California and Arizona; that since he brought the boys to Missouri in 1952, he has followed the directions of the doctor for treatment of the older boy and that he has been off his crutches since January, 1953, and is improving rapidly; that the older boy has been afflicted with a speech impediment, but that this...
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...as we are to disagree with the capable and conscientious trial judge, appellate review would become an empty formality [Prudot v. Stevens, Mo.App., 266 S.W.2d 756, 758] and we would be unworthy of the trust reposed in us, if we yielded our firm convictions simply because he, with an equal s......
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