Salkey v. Salkey

Decision Date02 April 1935
Docket NumberNo. 23532.,23532.
Citation80 S.W.2d 735
PartiesSALKEY v. SALKEY.
CourtMissouri Court of Appeals

Appeal from St. Louis Circuit Court; Fred J. Hoffmeister, Judge.

"Not to be published in State Reports."

Suit by Ruth E. Salkey against J. Sydney Salkey, in which a decree of divorce embodying provisions respecting the custody and maintenance of the parties' child was granted. From an order pursuant to defendant's motion, modifying the original decree in respect to the custody and maintenance of the child, plaintiff appeals.

Affirmed.

Lewis, Rice, Tucker, Allen & Chubb, of St. Louis, for appellant.

Lon O. Hocker, Arthur J. Freund, and Sam Elson, all of St. Louis, for respondent.

BENNICK, Commissioner.

This proceeding is one looking to the modification of a divorce decree as respects the custody of a minor child of the parties, who are J. Sydney Salkey, of the city of St. Louis, a member of our bar, and his divorced wife, now Mrs. Ruth E. Goldsmith, of San Antonio, Tex.

The parties were married on June 18, 1924; and of their marriage there was born one child, a daughter, Joan, who was nine years of age last February 26th, the day before the argument and submission of the case in this court.

Following their marriage, the Salkeys made their home in the metropolitan area of St. Louis, maintaining the same, so the record shows, in a state of very considerable affluence, which Mr. Salkey's prominence in his professional and business circles happily made possible. However, marital difficulties between the two unfortunately developed, culminating in a separation on or about May 1, 1929; and on July 10, 1930, the former Mrs. Salkey instituted her action for divorce in the circuit court of the city of St. Louis, charging statutory desertion of one year as the sole ground therefor, and praying for a decree awarding her the care and custody of the minor child.

The petition contained no prayer for alimony or maintenance, that feature of the controversy having been covered by a written agreement executed by and between the parties on July 11, 1930, providing that in the event of a divorce defendant should pay to plaintiff the sum of $3,000 in gross; that until plaintiff's death or remarriage he should make monthly cash payments to her of $300 each in full of all alimony; and that he should also make monthly cash payments to plaintiff of $300 each for the support and maintenance of the daughter, Joan, during her minority, said payments to continue without any deduction during the time or times that Joan might be in the custody of her father. It will subsequently appear that said latter provision ultimately became a source of considerable friction between the parties, after plaintiff's remarriage, and after defendant, with plaintiff's full consent, had assumed the expense of the care and custody of the child in his own home over extended periods of time greatly in excess of what was contemplated by the terms of the separation agreement.

Other provisions of the agreement were that defendant, in addition to the stipulated monthly cash payments provided for, should pay all extraordinary medical or hospital expenses which might be incurred on behalf of the child; that both parties should jointly determine all questions relating to her education; and that the mother should have personal custody of the child during her minority, save, generally speaking, for some or all of the summer months, or the vacation period, when she should be given over to the custody of the father. Provision was also made for either party, during the time of his or her custody of the child, to remove her from the state of Missouri, so that the element of the propriety of the removal of its ward out of the jurisdiction of the court, which so often is prominently featured in cases of this character, is taken out of this case by the agreement of the parties themselves in so far as either of them might otherwise have the right to complain about it.

Admitting the marriage and the birth of the child, defendant answered to the petition by a general denial of its other allegations; and on July 15, 1930, after a hearing at which defendant himself did not appear, though he was represented in court by counsel, the court rendered its decree, awarding plaintiff a divorce as prayed, together with the custody of the child in conformity with all the terms of the parties' own agreement as to custody and maintenance.

It appears that early in May of 1931 defendant remarried, his present wife having been a widow with two children by her first marriage, both girls, who are now about eight and fourteen years of age, respectively, and who are now members of defendant's present household. The record abundantly discloses, and indeed it is freely and frankly admitted by plaintiff herself, who has had a personal acquaintance with her successor for quite a few years, that the present Mrs. Salkey is a woman of culture and refinement, and peculiarly fitted by training for the care of children, having had a number of years' experience as a teacher of kindergarten and primary grades in private schools. In fact, it is refreshing to note that this case is entirely free from any reflections upon the morals or conduct of any of the principals, both plaintiff and defendant, as well as plaintiff's present husband and defendant's present wife, being people of high standing and attainments, so that, if the selection of proper moral and cultural surroundings for the child were all there was in the case, the court would have little, if anything, to choose from between the two homes, and no suggestion is made by either party to the contrary.

Plaintiff was remarried on October 24, 1932; her present husband being one Nat Goldsmith of San Antonio, Tex., who is engaged in the fruit and produce business in that city, and concededly occupies a high position in its business and social circles. Since her remarriage, she has, of course, resided in San Antonio, where her husband maintains a very comfortable home in one of the better residential districts. He, too, had been previously married and divorced; and it appears that at the time of his divorce he had arranged a settlement with his wife by the terms of which he executed to her his note for $60,000, upon which he pays interest at the rate of 8 per cent. per annum for the support of his wife and the maintenance of their daughter, now about seventeen years of age.

During the period of time immediately following the granting of the divorce, and even after plaintiff's removal to California to be near her mother, she and defendant had no trouble about the custody of the child, neither of them electing to stand upon the strict letter of the agreement, but instead at all times expressing a willingness to co-operate one with the other as the personal welfare of the child and the convenience of the parents themselves would seem to dictate for the moment.

In June of 1931 defendant went to California on his wedding trip, and had his daughter with him in Santa Barbara for three or four days. The following summer plaintiff's mother brought Joan to St. Louis about the middle of June, where she remained with defendant and his present wife until the early part of September, when she was returned to her mother in California. For a month of the summer of 1932 Joan was with the family at Lake Tahoe, where the present Mrs. Salkey had been taken to recuperate from an operation. Included in the party was a governess, who had been specially employed by defendant to look after the comfort and play of the three children under the personal supervision and direction of Mrs. Salkey.

During the school year of 1932-1933, Joan's schooling was unavoidably broken into, due to her mother's marriage and removal from Los Angeles to San Antonio shortly before the end of the year. While regretting the change in schools, defendant fully appreciated the necessity for it, and made no complaint about it. After the end of the school year, in the latter part of May, 1933, Joan was returned into defendant's custody, and from that time to this she has remained in his custody, save for the exception of a day or so when plaintiff might happen to be in St. Louis.

However, her remaining with her father was with plaintiff's consent, though not given until after quite some controversy between the parties. Plaintiff wrote defendant in the summer of 1933 that she was anticipating the birth of a child in December of that year, and that she expected to go to Los Angeles for the event, where she could be under the care of some particular obstetrician in that city; and she was insistent that Joan should be with her in Los Angeles during the time of her confinement and convalescence. To this defendant objected, upon the ground that it would unnecessarily work a break in the child's schooling as in the year before, and he was insistent that Joan either remain in San Antonio with Mr. Goldsmith or with him in St. Louis for the whole of the school year. Plaintiff finally assented to the latter suggestion; and by the end of the school year defendant had instituted the present proceeding to modify the court's decree, so that thenceforth the child has remained in St. Louis within the immediate jurisdiction of the court.

As might be expected, the first real difficulty between plaintiff and defendant was over money matters. So long as plaintiff remained single, defendant cheerfully paid her the sum of $600 each month, which plaintiff was privileged to use as she saw fit towards the maintenance of a home for herself and Joan, without accounting in any wise for the disposition of the sum of $300 specifically paid each month for Joan's maintenance alone....

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