R---------- v. E----------
| Decision Date | 30 January 1963 |
| Docket Number | No. 8142,8142 |
| Parties | R_____, Plaintiff-Respondent, v. E_____, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
H. D. Green, Robert E. Hogan, West Plains, for defendant-appellant.
Horace S. Haseltine, Edmund C. Forehand, John C. Crow, Lincoln, Haseltine, Keet, Forehand & Springer, Springfield, Warren D. Welliver, Welliver, Porter & Cleaveland, Columbia, for plaintiff-respondent.
This is a suit under Section 452.150, R.S.Mo., V.A.M.S., brought by the mother against the father for custody of two young children. Although the pleadings are lengthy, we believe a summary will aid not only to explain the issues which were before the trial court but, also, to shorten the detailing of the voluminous evidence.
The petition (filed April 11, 1961) states: that the parties are parents of a girl child, aged three and a half years, and a boy, aged two and a third years; that the father and mother are living apart, and the father has physical possession of the children; that plaintiff was forced to turn over physical possession of such children because of her (then) physical condition, but that she is (now) a fit and proper person to have custody, and that by reason of the tender years of said children defendant is not a fit person for such purposes; and that plaintiff has an excellent home in which to provide and care for such children.
The answer of the father charged: that in the year 1959 plaintiff became afficted with a mental disease and was confined in various institutions for treatment; that during such period defendant had custody; that after her release from mental institutions, the plaintiff refused to return to home of defendant and live with him, although he had attempted to induce her to do so, and plaintiff arbitrarily and without cause continues in such refusal; that prior to being confined for treatment, plaintiff had attempted to do great bodily harm to her children and did assault other members of the family with a knife; that by reason of these facts defendant believes plaintiff is so unstable mentally and physically that she is not a fit person to have custody of the children for any period of time whatsoever except reasonable visitation at the home of defendant; that on May 9, 1960, plaintiff (had) instituted a suit for divorce from defendant; that such cause was tried and plaintiff's petition was dismissed; and that the judgment in said cause bars the present action.
For reply plaintiff admitted that in the year 1959 she became afflicted with a mental disorder and was confined for treatment. During her illness the children were with defendant father a portion of the time and with plaintiff's parents a portion of the time. She denies that after her release she refused to return home and live with defendant without cause, or that defendant wanted her to do so. When she was released from the hospital, defendant had no home, and the husband made no offer to take her home but suggested instead that she get a job and go to work in order to see if she was recovered from her illness. On numerous occasions plaintiff attempted to talk with defendant concerning their problems and their future, but the only thing defendant wanted was sex. Defendant made no offer of a home or support but only wanted plaintiff to get a job and to sleep with him. In public, and as a fraud and sham, defendant has invited her to return home, but repeatedly on occasions when the parties are alone and in private, defendant tells plaintiff that she is still sick and never will be well again and never will be any good to him or the children. She has never, voluntarily, lived apart from her children. For two years defendant has refused to permit her to have temporary custody. The divorce action was instituted by her upon the advice of counsel for the purpose of obtaining custody. Throughout the marriage defendant was unable to provide her and the children with a proper livelihood but was dependent wholly or in part upon his parents and her parents. During the marriage they were forced to spend considerable time with defendant's parents, and while they so lived they had no privacy of their own. Defendant's parents were elderly; his father was a helpless cripple; and the home was without conveniences and was improperly kept. During the period of defendant's custody, the children have been separated, one child being with defendant's sister in another home. Defendant has made it a condition of accepting plaintiff as his wife that she give up her desire for a college education. Defendant has refused to permit her to have custody of her children except when a member of his family is present. Her physician informs her the cause of her illness was the defendant's treatment of her and she has lost all respect for defendant and could not go back to him as his wife. She has a proper home for the children. She is a student; her schedule can be arranged so that she is absent from home only a few hours; and she is in a position to place the children in a nursery-kindergarten school during this time.
On trial of the issues thus raised (and on March 20, 1962), the court found, among other things, it is obvious from the evidence that the defendant will not accept the plaintiff back into his life and into the lives of the children without reservation, and the evidence demonstrates that the plaintiff is mentally sound and well. Custody was adjudged in the mother except for the month of July of each year and there was provision for visitation. From this judgment the father has appealed.
The court which heard the divorce case in November 1960 did not adjudge the custody of the children. We think that proceeding is not res judicata as to the questions involved in this case. Sanders v. Sanders, 223 Mo.App. 834, 14 S.W.2d 458, 461; 224 Mo.App. 1107, 34 S.W.2d 712; Roberts v. Roberts, Mo.App., 292 S.W.2d 596; see S v. G, Mo.App., 298 S.W.2d 67, 75, 76.
The primary issue in this case is, of course, the welfare and well-being of the children. The matters principally in dispute are: (a) whether the mother has recovered from her illness and is mentally capable of caring for her children; (b) whether the mother has unreasonably and unwarrantedly refused to return to the home and whether she has really deserted her children; and, if these two questions are answered favorably to the mother, then, (c) considering all the circumstances, the surroundings, the homes in which the children will live and the persons who will be associated with them, with which parent will their welfare be best promoted. All parties bear good reputations and no question of social misconduct is involved.
As to history: Plaintiff mother and defendant father came originally from farms in South Missouri, not, however in the same immediate neighborhood. They were married in the latter part of 1955. At the time this case was tried (March 19, 1962), the father was twenty-six years old, the mother twenty-four. They first went to live with the defendant husband's parents. Both were ambitious; both desired a college education; both had a small amount of money; so they moved to a nearby city and enrolled in college. In March the money ran out, and this time the couple moved to the (vacant) farm home of the wife's parents. (These parents had in the meantime moved to the city.) The wife's father began supervising large construction jobs. The husband got a job under him, and so plaintiff and defendant eventually moved back to the city. From there on for several years it was a matter of frequently moving back and forth, and betwen farming and construction employment, with some schooling in between. The husband, however, retained, or at least attempted to retain, an interest in the farming on his parents' farm. In 1958 the husband got interested in timber-cutting and since then has worked at that, interspersed with farming.
At some time in 1956, the plaintiff wife had a miscarriage. Thereafter were born a girl child (age four at time of trial) and a boy (age three at time of trial).
In April 1959, a few months after the birth of the last child, while the parties were then living in the city and the father was working on a construction project, the mother began to experience periods of depression and anxiety. The condition worsened until she was placed in a hospital, where she was treated for two weeks. Then she was an out-patient for six to eight weeks. The trouble recurred, and in May she was back in the hospital for a few days. Then she was taken to a neurological hospital for three weeks and was dismissed and brought back to the original hospital for a few days. The husband commenced a proceeding to have her confined in the state hospital, but that proceeding was dismissed and the couple and their children moved back to the farm home of the husband's parents. This was about July 1, 1959.
As to conditions at this farm home, her testimony is the husband's father was incapacitated. There was no water in the house and no facilities for bathing. The food and the dishes were dirty. There was no privacy. The bed of her and her husband and that of his father and mother were close together and her husband was callous to this. She said he never once told her he loved her and was indifferent to her wishes and sensitivities.
About September 14, 1959, occurred what might be referred to as the gas-knife incident. The wife became deranged. There is no use rehashing the details of this incident. Plaintiff mother agrees she was deranged. Her conduct could, we suppose, be interpreted as suicidal, or dangerous to others, according to the viewpoint or prejudice of those concerned. We do not find any evidence of intent or attempt to harm her children as charged in the answer. They appear to have been outdoors at the time of the incident. Plaintiff was subdued by the husband's sister....
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