Shepard v. Shepard, 20617.

CourtCourt of Appeal of Missouri (US)
Citation194 S.W.2d 319
Docket NumberNo. 20617.,20617.
Decision Date04 March 1946

Appeal from Circuit Court, Jackson County; Ray G. Cowan, Judge.

"Not to be published in State Reports."

Proceeding involving the custody of a minor child, attorneys' fees and suit money by Bessie Shepard against Luda Shepard. From an order, the plaintiff appeals.

Order reversed, and cause remanded with directions.

See also 194 S.W.2d 329.

Homer A. Cope, Cope & Hadsell, D. C. Briggs, and Walter A. Raymond, all of Kansas City, for appellant.

Alfred B. Couch, Marion D. Waltner, and Clarence C. Chilcott, all of Kansas City, for respondent.

CAVE, Judge.

This appeal involves the custody of a minor child, attorneys' fees and suit money. Appellant is the mother and respondent is the father of the child. The effect of the judgment was to deny custody of the child to both parents, and ordered it committed to the St. Joseph's Home for Girls, located in Kansas City, to remain there under the supervision of the juvenile court until the further orders of the court, and that the expense thereof be paid by defendant, Luda Shepard. Plaintiff appealed from this judgment, defendant did not.

For clarity, the parties will hereinafter be referred to as plaintiff (Bessie Shepard) and defendant (Luda Shepard).

The transcript consists of 1050 pages. We shall condense it as much as possible.

Plaintiff and defendant were married on November 23, 1937. The child in controversy was born November 23, 1939, and was named Sandra Jane. The plaintiff had been married once before, in 1922, to a man named Martin Schildnecht, whom she divorced. The defendant had been married three times prior to marrying the plaintiff. His previous marriages had all resulted in divorces secured by his prior wives.

In July, 1940, this couple separated and plaintiff instituted suit for divorce; in October of that year she obtained a decree of divorce and was awarded the custody of the child, Sandra Jane, with the right in defendant of visitation, and an allowance of alimony and child maintenance. In 1942, she filed a motion to modify the divorce decree by increasing the alimony and maintenance allowance, and on October 27 of that year the motion was sustained, granting the increases, but with the further modification that the defendant should have the privilege of taking the child into his custody once every two weeks, from 1 o'clock to 5 o'clock p. m., except when the weather was inclement. This part of the order provoked the present controversy. On November 19, 1942, plaintiff filed a motion asking for a rehearing on her motion to modify the original decree and alleged that defendant's moral character was such that he should not have the custody of the child in his exclusive possession at any time, but only the right of visitation in plaintiff's home. On December 19, of the same year, a hearing was had on this motion before Edward M. Tracewell, sitting as special judge in the absence of Judge Cowan, the regular judge of that division. At the conclusion of that hearing the special judge refused to modify the prior modification, as prayed. No appeal was taken from that order.

When the judge announced his decision the plaintiff stated in open court that she would not comply with the order; that the defendant would not get possession of the child except "over my dead body." Shortly thereafter she and the child disappeared, under circumstances detailed later. Defendant wrote to her relatives but received no response, and finally employed detectives who located the plaintiff living near Olathe, Kansas. Thereupon defendant filed a petition for writ of habeas corpus in the District Court of Kansas and a hearing was had in that court, which will be later referred to. He also filed in the circuit court of Jackson County an application for citation for contempt of court, charging that plaintiff had not complied with the orders of the court concerning the custody of the child; and also filed a petition seeking to restrain the plaintiff from removing the child from the jurisdiction of that court. While such various proceedings were pending both the plaintiff and defendant filed motions to modify the divorce decree as theretofore modified, with reference to the custody of their child, each alleging that the other was an unfit person to have the custody.

The cause came on for hearing before Judge Cowan, and evidence was heard on (1) defendant's petition for citation for contempt; (2) defendant's petition for a restraining order and injunction; (3) plaintiff's motion to dissolve the temporary restraining order, and (4) plaintiff's and defendant's motions to modify the decree with reference to the custody of the child. In its decree the court continued the matters pertaining to the contempt proceeding "until the further order of the court * * *"; sustained the application for an injunction restraining plaintiff from taking the child from the jurisdiction of the court; overruled both plaintiff's and defendant's motions to modify the decree as to the custody of the child, finding that the "* * * plaintiff is not at the present time a fit person to have custody of the child and that the defendant, now being a single man, is in no position to give the minor child the proper home * * *"; and committed the child to St. Joseph's Home for Girls until the further orders of the court; disallowed attorneys' fees for plaintiff and assessed all costs against plaintiff, "due to plaintiff's refusal to carry out the orders of this court, causing this case to be reopened and a hearing had in court, * * *".

It is from this judgment that plaintiff appeals.

There are eight assignments of error, but they may fairly be condensed into three propositions. (1) That the trial court erred in denying plaintiff custody of her child because the evidence did not show her to be an unfit person to have such custody; and that there was no substantial evidence showing any change of condition which would warrant the modification of the original decree; (2) that the court erred in admitting in evidence testimony offered by the defendant tending to show misconduct of plaintiff several years before the divorce decree, because the divorce decree became res judicata on all such matters occurring prior to said date; and (3) in denying plaintiff attorneys' fees and suit money.

Plaintiff's moral character and general fitness to have the custody of the child is assailed by evidence concerning her conduct prior to her marriage with defendant and the divorce decree in 1940, as well as her conduct subsequent thereto. We think it best first to decide the question of whether the trial court should have admitted and considered evidence of plaintiff's misconduct prior to the divorce decree, and whether this court should give any weight and consideration to such testimony.

A motion to modify a divorce decree concerning alimony or custody of children is in the nature of an independent proceeding, and the motion is treated as a petition in an original action. North v. North, 339 Mo. 1226, 1236, 100 S.W.2d 582, 109 A.L.R. 1061; Hayes v. Hayes, Mo., 153 S.W.2d 1, 4. It is the settled law of this state that the statutory authority (Sec. 1519, R.S.1939, Mo.R.S.A.) to alter or modify a decree as to alimony or the custody of children can only be exercised upon new facts and circumstances arising after the entry of the original decree. We cite some of the multitude of cases so holding. Deidesheimer v. Deidesheimer, 74 Mo.App. 234; Cole v. Cole, 89 Mo.App. 228; Eaton v. Eaton, Mo.App., 237 S.W. 896; Ruedlinger v. Ruedlinger, 222 Mo. App. 819, 10 S.W.2d 324; Baer v. Baer, Mo.App., 51 S.W.2d 873; Newlon v. Newlon, Mo.App., 6 S.W.2d 669; Salkey v. Salkey, Mo.App., 80 S.W.2d 735; Hess v. Hess, 232 Mo.App. 825, 113 S.W.2d 139; Martin v. Martin, 233 Mo.App. 667, 125 S.W.2d 943; State ex rel. Scott v. Harris, Mo.App., 136 S.W.2d 78; Foster v. Foster, Mo.App., 146 S.W.2d 849; Martin v. Martin, Mo.App., 160 S.W.2d 457; Fernbaugh v. Clark, 236 Mo.App. 1200, 163 S.W.2d 999; Olson v. Olson, Mo.App., 184 S.W. 2d 768. The true theory upon which the rule requiring a showing of new facts or changed conditions rests upon the doctrine of res judicata. Foster v. Foster, supra.

Defendant relies upon certain cases which he contends support the trial court in admitting evidence as to plaintiff's misconduct prior to the divorce decree. He cites Meredith v. Krauthoff, 191 Mo.App. 149, 177 S.W. 1112, 1116. When that case is carefully read it does not support defendant's contention. There, Mrs. Krauthoff, who became Mrs. Meredith) and Mr. Krauthoff separated, and at that time entered into an agreement of separation which provided for support of the wife and the custody of their child. With reference to custody, the contract provided that it should be with the mother with the right of visitation in the father. Shortly thereafter the wife filed suit for divorce and in that proceeding she agreed in open court that if, in the future, she and her husband differed as to the conduct of the child and its custody the court "may at anytime settle the differences between [us]." The court thereupon granted her a divorce but the decree recited "* * * the court does assume and retain jurisdiction of the child, for the purpose hereafter of making such orders with respect to the care and custody of said child as may from time to time be right and proper." Some years thereafter the husband filed a motion to modify the decree and, among other things, alleged that "a question has arisen between the parties hereto as to the care and custody of said child, and the parties are unable to agree with regard thereto" and prayed "that the court may hear testimony regarding said question and make such orders touching the care and custody of said child as may be for his best interests and welfare." Thus it will be seen that the trial court was...

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