Rex v. Rex
| Decision Date | 06 December 1948 |
| Docket Number | 21105 |
| Citation | 217 S.W.2d 391 |
| Parties | REX v. REX |
| Court | Kansas Court of Appeals |
Nelson E. Johnson and George V. Aylward, both of Kansas City, for appellant.
Luther W. Adamson, of Kansas City, for respondent.
This is a proceeding, by motion, to modify a decree of divorce relative to the custody of Patricia Ann Rex, a seven year old child. The trial court refused to modify the decree resulting in this appeal.
The facts show that the respondent, James W. Rex, and the movent Pauline Rex (now Pauline Jakubaitis), were married on the 6th day of August, 1938; that within a few months thereafter they went to live with movent's parents, Mr. and Mrs. Victor E. Cheffer, in Kansas City; that on July 21st, 1941, the child in controversy was born to the parties; that in March 1944 the respondent entered the United States Navy and the movent and the child continued to live in the Cheffer home that in the summer of 1945 the movent went to visit her husband where he was stationed in California. During her visit respondent accused her of 'running around' with other men. According to movent's testimony they had a number of quarrels. They finally separated and she returned to Kansas City and conculted an attorney in regard to bringing divorce proceedings. The attorney advised her to wait until the respondent came back from the service before filing suit. Respondent admitted that he asked his wife in California about her 'running around' with another man but denied that there was a separation.
The facts further show that prior to her going to California the movent had met one Stanley Jakubaitis at the 'Congo Gardens on Highway No. 50.' Respondent claimed that this place was a saloon. Movent contends that there is no evidence as to the nature of the business carried on at this place. We fail to find any evidence concerning the matter. Jakubaitis who testified in behalf of movent, did not state under what circumstances he met movent, but she testified that a number of other persons were present at the time, including respondent's sister. Jackubaitis testified that he attempted to go out with movent subsequently, but she stated she could not do this; that some months afterwards, however, he did see her in the presence of others and, according to movent's testimony. on perhaps more than one occasion. However, according to the evidence on behalf of movent she was not in the company of Jakubaitis unless several other persons were present until after her return from California. Jakubaitis testified that after that time he saw her more frequently.
Respondent returned from the Navy on the night of January 1st, 1945. He testified that no one in the Cheffer house, where his wife was living, was expecting him; that he went there about breakfast time, but she was not there; that Movent denied having been away. Her mother testified that movent would stay away all night on occasions, but that the latter would be staying with a girl friend. Movent testified that when respondent first returned he pointed a gun at her and threatened to shoot her. He denied this. They continued to live together as man and wife for about two weeks and finally, after a quarrel, movent left one morning. At that time she was working. She testified that she pretended to respondent that she was going to work but she really intended to leave home. Her parents refused to allow her to take Patricia Ann because she had no definite place to go. She went to the air base at Sedalia to see Jakubaitis who was in the United States Army there. Jakubaitis testified that movent told him that 'she was leaving home and wanted to know what to do.' He advised her to go to his sister-in-law in Pittsburgh, Pennsylvania, which she did and obtained work there. About two months afterwards Jakubaitis was discharged from the army and he went to Pittsburgh to live. He did not live at his sister's-in-law house where movent lived. On February 5, 1946, respondent filed suit for divorce charging movent with adultery. Service was had by publication. On May 13, 1946 a default divorce decree was rendered granting him a divorce and custody of the minor child. The decree gave the mother the right of visitation. His mother-in-law testified in his behalf at the trial of the divorce case. She testified for movent in the present proceeding. She is anxious to have the child back with her.
Movent testified that she did not let her people know at once where she was after she went to Pittsburgh because she feared her husband, but she did send the child a valentine and Easter present. In June 1946 she wrote her sister in Kansas City giving her address. Sometime later the sister advised movent that respondent had procured a divorce. This was the first that movent knew of the divorce. Shortly thereafter movent and Jakubaitis were married in Pittsburgh.
When movent left in the early part of 1946 her mother gave respondent Jakubaitis's name, his serial number and his squadron. According to the evidence on behalf of movent respondent went to Sedalia, exhibited a gun and threatened to shoot Jakubaitis on sight but was stopped by the prevost guard. Respondent denied that he had a gun at this time.
On July 18, 1947 Mr. and Mrs. Jakubaitis came to Kansas City to visit her father and mother with whom the respondent and the child were still living. Afterwards Mr. and Mrs. Jakubaitis decided to remain in Kansas City and they now live with her parents. Upon their return to the Cheffer home respondent took Patricia Ann to live with his parents at Iantha in Barton County (about 130 miles from Kansas City) where she has resided since. Movent and her husband live with her parents in Kansas City. He has procured a permanent position paying him $ 100 per week. They are trying to find a house but are hindered by the housing shortage. She is 32 years of age, does not except to seek employment and is in a position to give all of her time to the care of the child. She testified that she is now living a life of a good moral woman; that both she and her husband want the child. Respondent testified that Jakubaitis told him that he did not want the child.
There was evidence on the part of movent that respondent was having improper relations with married women prior to the time of the divorce. Respondent denied this but admitted that after that time he had gone out with several married women, but he stated they were separated from their husbands. He denied having improper relations with these women. Without going into detail as to the testimony in reference to this matter we may say that the evidence convinces us that respondent was having improper relations with these women after his divorce. Testimony on behalf of movent tends to show that respondent drinks to excess. He denied this and accused movent of drinking to excess. Movent denied this.
The facts further show that respondent is a mail clerk earning about $ 250 per month. He lives with his aunt and uncle in Kansas City and is unmarried. His parents live comfortably in the country near Iantha in a five room house which is heated with stoves. It is not modern except it has electric lights. It has an outside toilet. The child, Patricia Ann, attends school. The household consists of Mr. and Mrs. Rex, two sons Ernest 22 and Lloyd 17, and a small child of their daughter. ...
To continue reading
Request your trial