Samland v. Samland, s. 22100

• Decision Date: 04 April 1955
• Docket Number: Nos. 22100,22218,s. 22100
• Citation: 277 S.W.2d 880
• Parties: Marie SAMLAND, Plaintiff-Respondent, v. Joseph SAMLAND, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 880

277 S.W.2d 880

Marie SAMLAND, Plaintiff-Respondent, v. Joseph SAMLAND, Defendant-Appellant.

Nos. 22100, 22218.

Kansas City Court of Appeals, Missouri.

April 4, 1955.

Claude L. Schenck, Kansas City, for appellant.

Frederick J. Freel, Kansas City, for respondent.

CAVE, Presiding Judge.

These are consolidated appeals from two judgments of the Circuit Court of Jackson County in proceedings ancillary to a divorce action. The appeal in case No. 22,100 is from a judgment overruling defendant's motion to modify a decree relative to the custody of a minor child of the above parties. The appeal in case No. 22,218 is from a judgment allowing plaintiff $75 as suit money and $350 attorneys' fees as expenses in connection with the appeal of case No. 22,100.

Relative to case No. 22,100, the record discloses that in November, 1948, the Circuit Court of Jackson County granted the plaintiff a decree of divorce from the defendant and awarded her the sole custody of their minor child, who was then four years of age, without granting defendant the right of visitation. In September, 1952, defendant filed a motion to modify the decree by granting him certain visitation rights, and the court entered an order modifying the original decree by granting the defendant the right to visit by granting the ternate Sundays, from 12:30 to 5:00 P.M., provided that written notice of defendant's intention to visit said child be given plaintiff not later than Wednesday of the week of such visitation. In July, 1953, defendant filed another motion to further modify the decree relative to the custody of the child and to grant to him the sole custody. After a hearing, the court overruled this motion and defendant perfected his appeal.

He urges that the court erred in overruling his motion because the preponderance of the credible evidence proves that there had been a change in conditions and circumstances since the original decree was modified in 1952.

It is now well settled that a motion to modify a divorce decree is an independent proceeding; that the motion is treated as the petition in an original action and must state a claim upon which relief may be granted, otherwise it is insufficient. The movant may be successful only upon proof of new facts, conditions and circumstances arising or coming into existence since the rendition of the original decree or a subsequent judgment of modification thereof. The subject of inquiry is not whether the original decree, or the modified decree, has been given its proper effect, but whether the substantial rights of the parties require that the decree shall be altered and modified on account of any facts occurring since the last hearing. The relief which is asked is not that the decree be enforced as written, but that it be modified to meet the new conditions. The proceeding is one in which new rights based upon new facts are adjudicated. The burden of proof rests upon the movant to establish such new facts, conditions and circumstances. Hayes v. Hayes, 363 Mo. 583, 252 S.W.2d 323, 327-328; Prudot v. Stevens, Mo.App., 266 S.W.2d 756. It is equally well settled that the welfare of the child is the prime concern of the courts.

Defendant was the only witness testifying did not find the plaintiff or the boy at home; are: (a) That on three or four occasions, after the modification of the decree in 1952, he went to visit the boy and did not find the plaintiff or bhe boy at home; (b) that on one or two occasions when he did visit the boy, he observed black and blue spots on his body; (c) and that he could not ascertain from the school authorities the progress the boy was making in school.

He testified that the plaintiff and the boy, who was about ten years of age at the time of the hearing on the motion, lived with her mother and father on a farm near Montrose, in Henry County, Missouri, about eighty miles from Kansas City; that defendant lived in Kansas City with a housekeeper and owned his home of ten rooms, and a farm of more than five hundred acres located near Keytesville, Missouri; that he was a carpenter and chemist; that he was well able to support, maintain and educate the boy; that plaintiff worked in Clinton, approximately eighteen miles from the home of her mother and father, and was not with the boy sufficiently to properly take care of him and look after his welfare, but had left such matters largely to her parents. Just how long these conditions had existed is not clear from his testimony. His counsel made a sincere effort to confine his testimony to conditions and circumstances arising subsequent to the order of modification in 1952, but it is apparent that he was a difficult witness to convince that his evidence should be confined within the proper limits as to time.

Relative to defendant's claim that the plaintiff had violated his right of visitation, he testified that he always wrote plaintiff of his intended visits as required by the modification decree; that on three or four occasions during the year subsequent to the modification order in 1952, he had driven to plaintiff's home and found that she and the boy were not there. Plaintiff testified that she did not always receive a letter of defendant's intended visit, but that many times he came whenever it suited him, and that she may have been away from home on such occasions.

Even if the plaintiff and the boy were away on three or four occasions during that period, such fact would not justify the court in modifying the decree and granting defendant exclusive custody of the boy. As stated in Hayes v....