S v. G
| Citation | 298 S.W.2d 67 |
| Decision Date | 30 January 1957 |
| Docket Number | No. 7505,7505 |
| Parties | S_____, Plaintiff-Respondent, v. G_____, Defendant-Appellant. |
| Court | Court of Appeal of Missouri (US) |
Louis Kranitz, and Theodore M. Kranitz, St. Joseph, Elza Johnson, Carthage, for defendant appellant.
McReynolds, Flanigan & Flanigan, Carthage, for plaintiff respondent.
This case involves the custody of a child. We have an appeal from an order modifying (but not in the manner prayed for) a decree of date March 7, 1953, which original decree granted the father, who was plaintiff then but is respondent in this appeal, divorce and custody of the daughter of the marriage (then seven years old and nine years old at the time of the hearing on the motion here involved), except for a period extending from June 1 to August 1 annually and except for alternate weekends; the plaintiff also to pay the mother (who was the original defendant and is the appellant here) the sum of $5 per week during her period of summer custody. The record is not clear as to the grounds upon which the divorce was rendered, but we surmise from remarks of counsel that it was probably 'general indignities.' The parties to this original decree entered into a settlement whereby the father agreed to pay the mother $300, and the father took the home and family automobile. The decree was taken, without contest, after defendant mother had, by her attorney, filed answer.
On January 3, 1955, the mother filed her motion to modify. By amended motion she alleged that at the time the original decree was rendered she was not financially able to provide a home for her daughter but that since then there had been changes in circumstances in that (a) she had remarried and was now able to provide a home, (b) the father had also remarried and he and his present wife were maliciously attempting to poison the mind of the little girl against her mother, (c) the father and his present wife had wrongfully refused to permit visitation with the child as provided by the decree, (d) had made unreasonable requirements as a condition of visitation, (e) intercepted and prevented correspondence between the mother and child, and (f) the father had refused to pay the support of the child during summer custody of the mother as required by the decree.
At hearing upon the motion here involved it was developed, over the objection of the mother, that prior to the divorce she had become involved in an intrigue with a man of the community, then married, which man we will refer to as the doctor. There is no evidence of 'immoral conduct,' as such expression is generally used, between the mother and the doctor. There was evidence of conferences or meetings between the two, to such an extent that both parties to this affair acquired a bad reputation with their acquaintances in the neighborhood in which they lived. At the request of the father there was a separation and the mother shortly went to Kansas City, where she lived with a sister and eventually found employment. At some approximately near time the doctor also left the community and eventually reestablished himself in his profession in North Missouri. The trial court had sufficient ground to believe that misconduct of the mother with the doctor was the principal or at least a contributing cause for the breaking up of this one home, and possibly also the home of the doctor, for about June 1954 he was divorced from his then wife, who received by decree of court care and custody of their son, age about twelve years at the time of the occurrences herein to be mentioned. On July 10, 1954, the mother and doctor were married and have established their home in North Missouri, where the doctor now practices and is moderately successful in his vocation. The mother (and the doctor) are now financially able to provide a comfortable home for and educate the daughter. The doctor has expressed a desire to do this. After the marriage of the mother and the doctor they first lived in a four-room house, then moved to an apartment of three large rooms and about the time of the hearing on the motion had acquired some property and were fixing up part of it for the doctor's office and the remainder for living quarters. The deputy juvenile officer of that community, at the request of the circuit court, made an investigation and inspection of the three-room apartment occupied by petitioner mother and the doctor at the time. This officer of the court highly recommended it as a desirable home for the daughter. The mother and her present husband have 'rededicated' themselves to the service of God in their chosen church, the mother having asked for and received baptism anew. Both of them are now active and faithful workers in the church and were earnestly commended by their present pastor, who journeyed to the place of trial and testified in person. In addition they produced the depositions of nine residents in the locality of their new home who testified that their reputation is good.
The father has remained at his employment in his home town, proved an unquestioned reputation, is of modest means but has a comfortable new home, which is well-kept, and is able under the present circumstances to furnish the daughter with all that is essential for her well-being, although he appears to be somewhat burdened with debt. The child is in school, attends Sunday school and church regularly, is kept neat and clean and appears to be reasonably happy in her present surroundings. The evidence further shows that the father has always been a fond and devoted parent. He has performed many things (such as bathing and dressing the child), even before the divorce, which are ordinarily considered as falling within the sphere of the mother. There exists between the father and the child a close and intimate bond of affection.
Af first the father and mother were able to handle their problems of exchange of custody and visitation without difficulty. The father visited the child when the mother had summer custody, was made welcome and apparently permitted to make a happy occasion out of it without interference from the mother. In May 1954 the father married his present wife. Trouble started about that time.
We learn about the present wife largely from her deposition, which was taken approximately two months before the hearing on the motion. At the hearing proper, attorneys for the petitioner mother were unable to get the stepmother upon the witness stand, although they had subpoena issued for her. She was, at that time, suffering from (we use the language of the father's attorney in quoting the doctor) 'butterflies in the stomach.' In her deposition she testified she was thirty-three years old. She said she was once married and divorced. She said this divorce was in the year 1946. A certified copy of the decree placed in evidence shows her to have obtained a decree of divorce in 1951; whether this is the divorce she referred to we do not know. She said that from 1946, when she got her divorce, until 1954 she lived in Texas, where she was a waitress in a cafe which she says 'was the classiest place in town until they built the coffee shop across the street.' In her deposition she further stated there were no children of her former marriage; yet the decree of divorce in evidence shows there to have been a daughter of the marriage, age ten years at the time of the decree (1951), which daughter was awarded to her custody. Upon the witness stand the father was asked if he knew of this child of his present wife. He said he did; that he did not know the present whereabouts of such child but knew where she was supposed to be; that such child had never been to his home and did not correspond with her mother; that he knew or no modification of the original decree which changed the custody of his wife's daughter. So much for the background of the parties.
The father admitted that he refused to pay the support money in the original decree, after the mother remarried, until after the motion to modify was filed and he was, quite properly, advised by his attorney so to do.
As to interference with communication between mother and child: The mother testified she would telephone the residence of the father and ask for the child whose custody is here involved and would be told that the child was not present. This the father denied. He claimed that the mother had never called the child except for one time after the separation and before the divorce. The father also denied interference with correspondence between the mother and daughter. His present wife testified (in her deposition), referring to the fact that the mother formerly wrote to her daughter at home, that 'that practice does not continue.' She professed not to know the reason why. It is clear from the evidence that at some period the mother commenced a correspondence with her daughter through the daughter's schoolteacher (who was a witness) and that the teacher was requested by both the father and his present wife to discontinue aiding such correspondence.
Christmas Eve, 1954, fell on Friday and it was the mother's alternate weekend to have her child. She had written but a few days before that she would call for the child. On this occasion at 5:30 p. m. she went to the father's home, but he met her at the door with a refusal. He told the mother he intended to keep the child on that Christmas because she had had her with her on the previous Christmas. The mother then asked if she could see the child and give her her Christmas presents. This was refused. The reason assigned was that the child was in the bathtub. The mother then requested permission to wait in the car so that the child could come out to the car and open her gifts. This also was refused. She asked to wait at the door in order to see her child. This was refused. She went out to the car and returned and asked the father, 'What could I do that you would cooperate for the sake of the...
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