Richards v. Hayes

• Decision Date: 21 January 1959
• Docket Number: No. 7741,7741
• Citation: 320 S.W.2d 65
• Parties: Dessie G. Hayes RICHARDS, Plaintiff-Appellant, v. Norman D. HAYES, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 65

320 S.W.2d 65

Dessie G. Hayes RICHARDS, Plaintiff-Appellant, v. Norman D. HAYES, Defendant-Respondent.

No. 7741.

Springfield Court of Appeals, Missouri.

Jan. 21, 1959.

Weldon W. Moore, Rolla, for appellant.

Thomas A. Shockley, Waynesville, for respondent.

McDOWELL, Judge.

This is an appeal from a judgment of the Circuit Court of Pulaski County sustaining defendant's motion to modify a divorce decree awarding minor child to the paternal grandparents and dismissing plaintiff's motion to modify.

November 8, 1957, plaintiff was granted a decree of divorce from defendant in the Circuit Court of Pulaski County on the ground of indignities. In the decree the court vested custody of the minor child in question with the maternal grandmother, Velma McKinnon, with reasonable visitation privileges granted both parents. Defendant was ordered to pay $30 per month, child support, beginning December 1, 1957.

December 31, 1957, defendant filed a motion to modify the original divorce decree as to custody of said minor boy, now seven years of age. The motion alleged, inter alia, that since the decree of divorce was rendered the maternal grandmother has turned over the custody of the child to his mother, without permission of the court; that since the divorce the mother has married a soldier by the name of Richards, stationed at Fort Leonard Wood, and lives at Rolla, Missouri; that the child will be taken out of Missouri when the said Richards is transferred to some other post or overseas; that defendant is permanently located at Dixon; that his parents reside near Dixon, are people of good reputation and are ready and willing to help defendant with the care and custody if the court grants custody to him.

A counter-motion for modification was filed by plaintiff January 13, 1958. It alleged, inter alia, that since the court awarded custody of the minor child to the maternal grandmother, to-wit, November 8, 1957, plaintiff has married Elmer S. Richards and now lives at Rolla, Missouri; that she and her husband have a suitable home and are both willing and able to give the minor child their love and attention; that her mother, Velma McKinnon, is now in such financial condition that she must work full time to support herself and is unable to give proper care to said child; that defendant is single and unmarried and does not have a suitable home for the child. It is alleged that plaintiff and her husband attend the Baptist Church at Rolla, and, if granted the custody of said minor boy, will cause him to attend church and Sunday School regularly; that plaintiff's husband, Richards, at present is serving with the Armed Forces of the United States with the rank of Corporal and has sufficient income to provide said child with the necessities of life. Plaintiff states that the welfare of the child will be best served by a modification of the decree of divorce awarding custody to her.

Plaintiff obtained a decree of divorce from defendant November 8, 1957, on ground of indignities and in the decree the court found plaintiff to be the innocent and injured party. The custody of the minor child was awarded to the maternal grandmother, Velma McKinnon, who lived at Dixon. The parents were granted visitation privileges. There is some conflict in the testimony as to the date of separation. Velma McKinnon testified that the minor boy had been in her custody for two-thirds of his lifetime and that plaintiff and the defendant had been separated since the child was two years old. She testified they had not lived together as man and wife for that length of time. This testimony was corroborated by plaintiff. Defendant stated they had been separated for about two years. He admitted that plaintiff had been employed and had been away from the home but said she came back every week or two until the last two years.

While the child was in custody of the maternal grandmother, under the order of the court, each of the parties were permitted to visit him. Norman Hayes, defendant, would take the child on Saturdays to visit his paternal grandparents, Homer Hayes and wife, who live on a farm about ten miles from Dixon. The evidence shows that there was and now is the very best of feeling between the maternal grandmother and Norman Hayes and with Norman's parents. Mrs. McKinnon testified that Norman Hayes seemed like one of her own children and had visited in her home since this trouble arose and she also testified to the good reputation of Norman's parents.

The evidence shows that while the maternal grandmother had custody under the order of the court the child was with its mother, plaintiff, on Christmas Eve; that on Christmas Day defendant took the child to the home of his parents, where he spent the day; that after the holidays plaintiff brought the child back to her home and put him to bed; that when she attempted to leave, the child cried to go with her and did not want to stay with his grandmother. The grandmother testified that she told Mr. Shockley she could not keep the child longer because he wanted to be with his mother and she turned the child over to plaintiff about a week after the holidays; that the child was still in her home when she received notice December 31, 1957, of defendant's motion to modify.

We think the evidence conclusively establishes the good reputation of both plaintiff and defendant and the defendant's parents, Homer Hayes and wife.

Defendant testified that the child had been well treated so far as he could tell while he was in the custody of plaintiff. There is no dispute that plaintiff and her husband, Richards, kept the boy in school and took him to church and Sunday School and, in all respects, treated him with love and affection, as parents should.

The evidence is that while living in the dormitory and working at Fort Leonard Wood, plaintiff met Elmer S. Richards, a Platoon Sergeant in the U. S. Army, in training at the Fort; that in December, 1957, they were married and now live in Rolla, Missouri. It shows that Richards came to Fort Leonard Wood in July, 1955, long after the date of separation of plaintiff and defendant and that he did keep company with her prior to the date of divorce. The record does not contain the pleadings and we are not informed as to what the issues really were in the divorce trial. It only contains the decree of divorce.

The evidence shows that the date of Richard's discharge from the army was April 24, 1958; that he had the time extended for six months in order to decide whether or not he would stay in the army and go to Officers School or retire to private life and go into the lumber business. He gave this testimony:

'Q. And if you do stay in the army, is that your intention, to go to Officer's Training School some place and become an officer? A. It is, sir, If I stay in the army, I certainly will go to Officers School.'

Richards testified he had worked in the lumber business and it would take him a little time to get back as an assistant lumber foreman since he had been away from the business about three years; that his decision for the future depended upon what was best for his family. He said that if he proceeded to Officer's Training School his income would be assured. When asked if he would leave Fort Leonard Wood before October 24th, he stated: 'No, sir; there's no chance whatsoever. I--there's no schools that you can go to in that length of time. Well, let's say that they would approve--they would approve no schools for that length of time. In order to go overseas, you must have quite a few more months than that, and it's more or less just to fill my vacancy as Platoon Sergeant, unless I decide whether I should go to Officer's School or not.'

Plaintiff's testimony is to the effect that her husband might remain in the army and take officer's training and that he might be stationed in some other State or even sent overseas. She testified she wanted to take the child and go with her husband wherever he might be. Both plaintiff and her husband testified they desired to have the child and would care for and educate him. Richards testified he would like to adopt the child. The evidence is they are expecting a baby of their own but Richards testified that would make no difference as he would treat the boy as his own child if awarded custody.

The undisputed evidence is that Norman Hayes, defendant, lives alone in a trailer house consisting of a trailer and two rooms built thereon, in Dixon. He works at the shoe factory and earns approximately $200 a month on the average. His parents, Homer Hayes and wife, live in a modern six room house on an 800 acre farm, about ten miles from Dixon, on a public highway; that they own a half interest in another tract of land of 700 acres and a half interest in a garage in Dixon; that they owe about $8,000 on their property. These people are of good reputation, morally fit to properly care for the minor boy in question, if given custody, and agree to take the child and see that he is properly cared for, educated and kept in church and Sunday School.

Defendant testified that he did not want custody granted him but wanted the court to modify the decree of divorce by placing custody of the child with his parents. The evidence shows that good school facilities exists and that the grandparents go to church and that they will see to the education and moral training of the boy.

An examination of the record convinces this court that the trial court bases its judgment on the grounds that the evidence shows plaintiff and her husband might take the child from the jurisdiction of the court and out of the State, even to a foreign country and that for this reason the best interest of the child would be with his paternal grandparents.

By the decree entered on April 25, 1958, the court sustained defendant's motion to modify with respect to the minor child in issue and changed the custody from Mrs. Velma McKinnon, maternal grandmother, to Mr. and ...