Schumm v. Schumm
| Decision Date | 20 September 1949 |
| Docket Number | 27654 |
| Citation | 223 S.W.2d 122 |
| Parties | SCHUMM v. SCHUMM |
| Court | Missouri Court of Appeals |
'Not to be reported in State Reports.'
Rendlen White & Rendlen, Charles E. Rendlen Sr., and Harrison White all of Hannibal, for appellant.
Robert W. Connor, and Fuller, Fuller, & Ely, all of Hannibal, for respondent.
BENNICK PER CURIAM
This is a proceeding on motion of the defendant father to modify a divorce decree as respects the custody of a minor child.
The divorce action had been brought by the wife, Bettie Schumm, against her husband, Cloyd C. Schumm.
The parties were married on July 1, 1939, while plaintiff was attending Hannibal-LaGrange College in Hannibal, Missouri. Defendant was employed in the shoe factory in Hannibal at the time.
The child in question, a daughter, Sharon, was born September 14, 1943, and is now six years of age.
When Sharon was about six months old, defendant suggested to plaintiff that she bring an action for divorce. As a matter of fact, defendant frankly admitted that he had desired that his wife should institute such an action against him. The acknowledged fact was that he had become infatuated with another woman; and after resisting his importunities for about a year, plaintiff finally brought an action in the Hannibal Court of Common Pleas, and was awarded a divorce on July 7, 1945. Defendant was not present at the trial, but entered his appearance and joined in a stipulation, which the court adopted and made a part of its decree, that plaintiff should have Sharon's general custody subject to defendant's right of reasonable visitation, and that defendant should pay plaintiff the sum of $ 50 monthly for Sharon's maintenance.
Defendant had meanwhile established a residence in Jacksonville, Illinois, where he was employed as manager of the Mills Auto Parts Company; and on July 13, 1945, six days after the entry of the decree of divorce, he was married to the woman with whom he had become infatuated, and since that time has made his home in Jacksonville. Two children have been born of such second marriage, a son now about three years of age, and a daughter now about one year of age. Defendant and his family live in confortable surroundings; and regardless of what is to be said about the circumstances under which his marriage to plaintiff was disrupted, such evidence as was introduced all indicates that he and his present wife are well respected among their present associates.
After the divorce plaintiff remained in Hannibal with Sharon, and taught school for a couple of years as she had been doing before the decree was granted. Because of the housing shortage she was forced to move on two or three occasions, but at all times was able to have Sharon with her. During the daytime, while plaintiff would be away at school, it was of course necessary that she arrange for Sharon to be cared for by some one other than herself, but there is no pretense that the child was ever neglected or permitted to suffer in any respect. On January 23, 1948, two and a half years after her divorce from defendant, plaintiff married a Mr. Robert O'Donel, who is employed by the Maytag Store in Louisiana Missouri, some forty miles south of Hannibal. Upon the close of school in the following May, plaintiff moved to Louisiana with her husband; and all the evidence indicated that they too lived in comfortable surroundings and were highly esteemed by their friends and neighbors. Farther south beyond Bowling Green is a community known as Cyrene, where plaintiff's parents, Mr. and Mrs. Walter Gillum, live on a farm of 165 acres. The Gillums are admittedly most excellent people; and while it is outside the record in the case, plaintiff's counsel say in their brief that since the entry of the order in question on this appeal, plaintiff, her husband, and Sharon have taken up their permanent residence in the Gillum home.
It was admitted that defendant, since the entry of the decree, had made his monthly contributions for Sharon's maintenance without fail, and in addition had given her clothes, as well as toys and trinkets of one kind and another. According to plaintiff, all the money contributed by defendant has been invested in bonds, which have been put aside to use at some later date in financing the child's education.
After the divorce, and while plaintiff was still residing in Hannibal, defendant had paid short visits to Sharon on an average of once every three weeks, depending on when he could get away from Jacksonville. It had been his custom to combine his visits to Sharon with business trips to his company's Hannibal store. Whenever it was possible to do so, he attempted to notify plaintiff of his intended visits, but sometimes it was not possible to give her notice in advance. It was his usual practice to call the manager of the Hannibal store and have him notify defendant's mother, a resident of Hannibal, who would then in turn call plaintiff. Incidentally it appears that there had been no friction between plaintiff and defendant's parents, but that instead Sharon had been accustomed to visit them as though nothing had occurred to mar the normal family relationship.
But while defendant, prior to plaintiff's marriage to O'Donel, was apparently permitted to visit Sharon very much at his own convenience, the evidence indicates very conclusively that the arrangement had never worked out satisfactorily. The trouble was that in being compelled to visit the child in plaintiff's home, defendant, if not purposely, then at least unavoidably, had been denied the privacy which was to be desired in such a situation. Even if plaintiff were not constantly in the room as he testified, she was in any event somewhere close by; and it seems to be undenied that he was never permitted to take the child away from home, as for instance, for a ride in his automobile. In fact, plaintiff testified that she had been advised not to extend him any such privilege. However the breaking point came after plaintiff's marriage to O'Donel, when plaintiff informed him that he would no longer be welcome in her home, and that any future visits would have to be made at the Gillum home to which Sharon would be taken whenever he desired to see her.
On June 12, 1948, defendant filed his motion to modify the decree as respects Sharon's custody, and asked that a new order be entered awarding custody to him on account of a change in conditions. However at the...
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