Ruedlinger v. Ruedlinger

• Decision Date: 06 November 1928
• Docket Number: No. 20176.,20176.
• Court: Missouri Court of Appeals
• Parties: WILLIAM J. RUEDLINGER, APPELLANT, v. EFFIE RUEDLINGER, RESPONDENT.<SMALL><SUP>*</SUP></SMALL>

10 S.W.2d 324

WILLIAM J. RUEDLINGER, APPELLANT, v. EFFIE RUEDLINGER, RESPONDENT.^*

No. 20176.

St. Louis Court of Appeals, Missouri.

November 6, 1928.

Appeal from the Circuit Court of the City of St. Louis. — Hon. Claude O. Pearcy, Judge.

AFFIRMED.

Harry E. Sprague and Vincent D. Gallo for appellant.

(1) The welfare of the child is the paramount consideration of the court in awarding the custody to a person, and the court will take into consideration all of the circumstances of each particular case, and dispose of the children in such manner as may be best calculated to secure for them proper care and attention, as well as a proper education. In re Krauthoff: Meredith v. Krauthoff, 191 Mo. App. 149, l.c. 170-171, 177 S.W. 1112; In re Crockett, 195 Mo. App. 54; Barnhart v. Barnhart, 253 S.W. 56. (2) In cases involving the custody of a minor child, the evidence necessarily takes a wide range. No other occasion can call more loudly for judicial vigilance in reaching for a proper result. And in determining where the custody of a child shall go, the acts and attitude of the parents toward each other, the causes leading to the divorce, their treatment of each other, and similar matters are all material and admissible in evidence, solely in order to arrive at what is for the good of the child. Meredith v. Krauthoff, 191 Mo. App. 149; Brenneman v. Hildebrandt, 137 Mo. App. 82; Barnhart v. Barnhart, 253 S.W. 56. (3) As between the father and grandparents of an infant, the father being the natural guardian of his child, is entitled to the custody of its person unless it is made manifest to the court that the father, for some reason, is unfit or incompetent to take charge of it, or unless the welfare of the child itself, for some special or extraordinary reason, demands a different disposition of it at the hands of the court. In re Crockett, 195 Mo. App. 54; In the matter of Scarritt, 76 Mo. 565; Morin v. Morin (Wash.), 37 L.R.A. (N.S.) 585; State ex rel. v. Ellison, 271 Mo. 416; Tines v. Tines, 216 S.W. 563; Weir v. Marley, 99 Mo. 484; Barnhart v. Barnhart, 253 S.W. 56.

Ada M. Chivvis for respondent.

(1) Where decree of divorce has been granted and custody of child awarded and plaintiff files no motion for new trial within the time prescribed by law, nor appeals from such judgment during the time at which it is rendered, the question of proper custody of such infant child becomes res adjudicata, and the statutory authority to alter or modify such decree as to the custody of such infant child can only be exercised upon new facts occurring after the trial. Deidsheimer v. Deidsheimer, 74 Mo. App. 234; Bishop on Marriage, Divorce and Separation, sec. 1188; State ex rel. v. Raney, 134 Mo. App. 722; Phipps v. Phipps, 168 Mo. App. 697. (2) (a) The custody of a child is in the nature of a trust and is upheld so long as the duties of that trust are carried out. Hocheimer on Custody of Infants (2 Ed.), 24. (b) Change of custody of a child is not within the mere discretion of the court, but can only be made on proof of new facts or criticism of present custodian or trustee. Such change of custody can only be made on proof of new facts, which, when considered with the old facts, show that the good of the child requires the change to be made. Without the new facts occurring after the divorce the court is powerless to make the change. Bishop on Marriage, Divorce and Separation, sec. 1188; Deidsheimer v. Deidsheimer, 74 Mo. App. 234. (3) The superior consideration in determining who shall have the custody of the child is the child's welfare. The rights of neither parent should be disregarded, but the welfare of the child is superior to the claims of either parent. No sentimentality should attend proceedings of this character, but the permanent interest and welfare of the child should be the great aim and end to be attained. West v. West, 94 Mo. App. 683; Lusk v. Lusk, 28 Mo. 91; In re Blackburn, 41 Mo. App. 622; In re Francis G. Delano, 37 Mo. App. 185; Waters v. Gray (Mo. App.), 193 S.W. 33. (4) The burden of proof is on the plaintiff. A change should never be ordered except for the most cogent reasons. Meredith v. Krauthoff, 191 Mo. App. 149; State ex rel. v. Bird, 253 Mo. 589, 590.

SUTTON, C.

Plaintiff filed suit against defendant for a divorce to the October term, 1922, of the circuit court of the city of St. Louis. To the petition the defendant filed an answer and cross-bill. Upon the trial of said cause, on February 21, 1923, the court found the issues in favor of the plaintiff, and entered its decree divorcing the plaintiff from the bonds of matrimony contracted with defendant, and awarding the custody of their infant child, Elvadine, then aged five years, to C.F. Dunn, her maternal grandfather.

On July 29, 1926, plaintiff filed his motion praying the court to modify said decree with respect to the custody of said infant child, and to award the custody of said child to him. Upon the trial of this motion, on October 8, 1926, the court overruled the motion, and entered judgment accordingly. From this judgment the plaintiff appeals.

Plaintiff in his motion charges as grounds for the modification of the original decree (1) that since the decree was rendered defendant has remarried to G.C. Van Lidth, who is engaged in the carnival business, and that the defendant travels around with him in connection with such carnival business, and has no fixed place of abode, and is still unfit to have and enjoy the custody of said minor child; and (2) that said minor child is now of the age of eight years, and that plaintiff is in a suitable position in life to furnish her a home and educate and support her in her proper station.

Plaintiff resides with his mother at 3845 Illinois Avenue, in the city of St. Louis, where he resided at the time the original divorce decree was rendered and the custody of his infant daughter was awarded by the court to C.F. Dunn, the maternal grandfather. There has been no change in the character or place of his residence since the divorce decree was rendered. At that time he was employed as a chauffeur for a grocer company and earned $25 per week. At the time of the trial of the motion he was earning $180 per month as patrolman on the police force of the city of St. Louis, and had been earning this amount for about eight months.

Mr. Dunn and his wife reside on a farm of thirty-nine acres about eight miles from Menfrow, Missouri, and the child, Elvadine, resides there with them. Mr. Dunn is fifty-three years old, and his wife is forty-eight. Elvadine was five years old at the time the divorce was granted and her custody was awarded to Mr. Dunn. There is a country schoolhouse about a quarter of a mile from the Dunn home. Elvadine attends school there. There are in this school usually about twenty pupils, ranging in age from six to sixteen years, under the instruction of one teacher. Usually the school is held for a term of eight months each year. Elvadine had attended school there two terms prior to the trial of the motion. She received each term an honor certificate from the county superintendent of public schools for punctuality and regular attendance, having been neither tardy nor absent for the entire school term, and she received promotions whenever promotions were made. She lives with her maternal grandparents in their home on the farm while school is in session, and goes to St. Louis and lives with her father in the home of her paternal grandmother, Mrs. Katherine Ruedlinger, in St. Louis during the vacation periods. This home is a frame building containing three rooms, with about fifty feet of yard, and is occupied by plaintiff and his mother. The mother owns the home. She was about sixty-eight years old at the time of the trial of the motion. There is a public school about three blocks from the Ruedlinger home, where Elvadine would attend school if her custody should be awarded to her father.

Plaintiff does not attend church himself, but promised that he would...