Rone v. Rone

• Decision Date: 23 September 1929
• Docket Number: No. 4533.,4533.
• Parties: RONE v. RONE.
• Court: Missouri Court of Appeals

20 S.W.2d 545

RONE v. RONE.

No. 4533.

Springfield Court of Appeals. Missouri.

September 23, 1929.

Appeal from Circuit Court, Pemiscot County; John E. Duncan, Judge.

Clara Rone was awarded a divorce from George W. Rone, Jr., and the care and custody of their child, and defendant applied for modification of the decree on the question of the minor's custody. From an order denying his motion, defendant appeals. Affirmed subject to directions to trial court to modify decree.

Ward & Reeves, of Caruthersville, for appellant.

Von Mayes, of Caruthersville, for respondent.

BAILEY, J.

This is an appeal from an order overruling a motion to modify a decree of divorce touching the custody of a minor child. The divorce decree was obtained by plaintiff on April 3, 1919, in Pemiscot county, Mo., and by the decree she was awarded the care and custody of the only child of said marriage, Mary Cecil Rone, then of the tender age of 2 years. The decree made no provision for support of the child on the part of defendant father, but did provide that he be permitted "to see the child at reasonable intervals and to have it spend part of the time with him."

In order to give the circuit court the right to modify the divorce decree in relation to the care and custody of the minor child, it was incumbent upon defendant to set up and prove by substantial evidence new facts or changed conditions since the decree of divorce was entered. Sabourin v. Sabourin (Mo. App.) 213 S. W. 490; Hull v. Hull (Mo. App.) 280 S. W. 1059. The sufficiency of defendant's motion in that respect is not questioned. This motion states that, shortly after the decree of divorce was obtained, plaintiff married one Tom White, by whom she has four small children, and that defendant has also married and has two children by his second wife. These facts are admitted. The grounds for modifying the decree as set forth in the motion are that (1) plaintiff has ever failed to permit defendant to visit the child or to permit the child to visit defendant in violation of said decree; that (2) plaintiff has no proper means for the support of said infant child; that (3) plaintiff does not provide proper home environment or a suitable home for the child; that (4) plaintiff does not afford said child proper or sufficient schooling; that (5) plaintiff does not send the child to church or Sunday School; and that (6) plaintiff and her husband intend to remove out of the state of Missouri and take said child with them beyond the jurisdiction of this court. It is further alleged that defendant lives in Portageville where there are good schools, and that he can afford the child a good home, schooling, support, and proper care. The answer denies all the charges made.

In considering a case of this character, the appellate court is not bound by the findings of the trial court on questions of fact, but will review the whole record and decide the case on its merits, keeping in mind that the best interest of the child is the dominant and most pursuasive factor involved. Bedal v. Bedal (Mo. App.) 2 S.W. (2d) loc. cit. 184; Conrad v. Conrad (Mo. App.) 296 S. W. 196; Sabourin v. Sabourin (Mo. App.) 213 S. W. 490; section 1814, R. S. Mo. 1919. However, the finding of the trial judge should not be ignored, but, on the contrary, should be deferred to on doubtful questions of fact. Sanders v. Sanders (Mo. App.) 14 S.W.(2d) 458, loc. cit. 461; Conrad v. Conrad, supra; Penningroth v. Penningroth, 72 Mo. App. 329, loc. cit. 333.

The evidence shows that defendant is a mail carrier earning about $190 per month, and that he lives with his present wife in town of Portageville. Plaintiff lives 3 or 4 miles from Portageville, on a cotton farm which her husband rents. She has lived there since she married Tom White, a few months after she obtained the divorce from defendant. Her father lives about one-quarter of a mile from where she lives. It thus appears that all the principals have lived in practically the same neighborhood during the 9 years since the divorce.

In support of the charges contained in his motion, defendant testified he had never visited the child, Mary Cecil, often because he was afraid to go there as they would do him physical harm; that he had undertaken to have the child visit him, but they never permitted it; that he found her on the side of the road one day, "crippled," and he took her to the doctor and then to his home, where White came and got her the second day; that the Whites are in very poor condition financially; that he passes by their home and looks at the child and sees her at times carrying the baby which, "was half as large as she was, and it made my heart ache; I bought her some clothes from time to time, but I don't remember ever seeing her wear any clothes I bought for her;" that he was in a position to educate his daughter and send her to church and Sunday School; that his wife is a member of the church and has a kind and loving disposition and wants to take care of her; that it was rumored before he brought this proceeding that Tom White and his wife were going to move to Palestine, Ark., 165 miles from Portageville; that his business called him by the White place once or twice a week the last year, and he saw his daughter in the field most every time he passed, hoeing cotton, "all sunburned and barefooted, and very poorly clothed; she worked in the fields with hired hands"; that Clara (the plaintiff) told him the reason she would not let the child come to visit him was that "she had to have her to work."

On cross-examination, defendant testified as follows: "This child in question was between two and three years old at the time of the divorce proceedings, and she was eleven years old last September; she has been under the care and custody of her mother all her life; I knew of her being away from there once or twice for ten days or two weeks at a time — I went to visit her one day when she was at daddy Browns. During that period of time, and from the time she was two years old until now, I have done nothing toward contributing to her support, except give her money and buy her some clothes. Altogether I have contributed between $50.00 and $100.00 for clothes and support. Her mother agreed to support the child when she got the divorce. I would have liked to buy for her if I thought she would get the use of what I bought her. I have a home in Portageville and 120 acres of farm land in Pemiscot County; my wife and I own it jointly; there is a $1,400.00 mortgage against the farm land. I am a mail carrier and make about $190.00 month. I want the custody of this child for the purpose of educating her and raising her to be a Christian. I would have liked to have had the custody of her before now, but it hadn't got just right; they kept her within the bounds of the state up until this time. The reason I didn't ask for the custody of this child when she was five or six years old, because she wasn't large enough yet to attend Sunday School and church and under those terms I thought I would give her a chance; she wasn't big enough to work then; she is big enough to work now, but I don't want her to work."

Defendant further testified that: "I have asked my former wife to let the child come over to my place, but she said she couldn't do without her, and she refused to let her come over and spend the day or night with me. I have asked her to let the child do that, but she put me off saying she could come the next Thursday. I haven't asked her particularly to let me see the child, I was afraid to go there, some of the neighbors told me a few things that didn't sound good, and it come from truthful people; they didn't threaten to kill me. During all this eight or ten years I have only contributed, in the support of this little child, something like $50.00. She is in the fourth grade at school; she lives out in the country about two miles from the public school. My wife's husband, Tom White, is a farmer."

Mrs. George Rone, defendant's wife, testified that she would take the child and that she liked children; that she wanted to do it of her own free choice.

Mike Fisher testified for defendant that Tom White asked him at various time, the last time being December 21, 1927, to move him to Palestine, Ark.; that he saw the little girl picking cotton from October 10 to December 23, 1927; that he never saw her attend church or Sunday School.

Jess Rone, a cousin of defendant, testified he had a talk with Tom White about moving to Arkansas; that he has seen the child "chopping cotton," and has also seen her picking cotton dressed in ordinary work clothes, "no hat, bareheaded and barefooted"; that part of the time when she was picking cotton "school was going on."

The evidence for defendant further tended to show that Cecil attended school irregularly, and that, while she should have been ready for the seventh grade in the fall of 1928, she was ready only for the fifth grade. There were a number of other witnesses who testified as to the child working and carrying the baby to the field for her mother to nurse and as to the poor and rough clothing she wore. One witness, however, testified there were 150 or 200 people within a radius of 2 miles of the church, and that the average attendance at the Sunday School was 50.

Plaintiff testified as follows: "I have had this child ever since I got the divorce, and I have clothed her well; she has not wanted for any comfortable clothes. My former husband hasn't offered me anything towards the support of this child; he hasn't given me anything only two suits of underwear and Mr. Rone's folks have sent her some things made over from her daughter. When Cecil was seven years old I started her to school; she is in the fourth grade now, ready for the 5th. She is ready the first of the year and they haven't promoted her over yet. She has worked in the fields, but I didn't make her go — she says she likes to chop cotton. She chopped and picked...