Shields v. Shields, 24040

• Decision Date: 01 February 1965
• Docket Number: No. 24040,24040
• Parties: Nancy Jane SHIELDS, Plaintiff-Appellant, v. Spencer O. SHIELDS, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 242

387 S.W.2d 242

Nancy Jane SHIELDS, Plaintiff-Appellant, v. Spencer O. SHIELDS, Defendant-Respondent.

No. 24040.

Kansas City Court of Appeals, Missouri.

Feb. 1, 1965.

Ronald Ray Riepen, Kansas City, for appellant.

Lillie Knight, Kansas City, for respondent.

MAUGHMER, Commissioner.

We have here a marital contest. The wife was granted a default decree of divorce and custody of the two children. Thereafter that judgment was set aside in response to a motion alleging lack of jurisdiction and then, after hearing testimony, the court granted a divorce to the husband and awarded custody of the children to a paternal uncle and aunt. The wife has appealed.

Nancy Jane Shields was lawfully married to Spencer O. Shields on June 3, 1956. Two children were born of the marriage--Spencer Ogden on May 31, 1957, and Toyna on October 14, 1958. This couple resided in Jackson County, Missouri, and separated during June, 1962.

The petition for divorce under which the plaintiff wife received the default decree recites that it was signed and sworn to by her on June 22, 1962. It was filed with the circuit clerk on July 12, 1962. Defendant husband on July 11, 1962, subscribed and swore to a document styled: 'Entry of general appearance, waiver of personal service of summons, consent to trial and entry of decree without further notice'. In the body of this document defendant 'acknowledges receipt of a true copy of plaintiff's petition for divorce', waived personal service of summons, entered his 'general appearance in said cause for all purposes', consented that the cause be set for trial and hearing without further notice and without his presence, or his attorney's presence. This entry of appearance bears the circuit clerk's stamp 'Filed July 15, 1962'. July 15, 1962, was a Sunday. The deputy clerk identified his signature on the filing stamp mark and as a possible cause for its bieng dated Sunday, stated that he might not have turned the date mark from Saturday all the way to Monday.

The defendant husband said he agreed to pay the attorney fee of $200 and understood the cause would be taken up and a default decree entered after he did so. He never paid this fee. The wife did and some ten months later, on May 6, 1963, plaintiff was granted a default decree of divorce, was awarded custody of the two minor children and $40 per week for their support and maintenance. No other proceedings of any kind took place of record until 63 days later when on July 18, 1963, defendant filed his 'motion to modify divorce decree as to custody of minor children'. Therein it was alleged plaintiff had assured defendant she would not seek custody of the children, and further declared there had been a 'change in condition and circumstances', that plaintiff was unfit to have custody, and prayed that care and custody be awarded to him. In due time plaintiff moved for allowance of suit money and attorney fees and on September 13, 1963, defendant filed his written motion to set aside the default decree for 'lack of jurisdiction'. In that motion defendant charged that he was never duly served with summons or copy of the petition; that his entry of appearance was taken before the suit was filed, and that the court had no jurisdiction to entertain the suit or enter the decree of divorce. It should here be noted that no motion for new trial--timely or untimely--as to the default judgment was ever filed and no appeal therefrom was ever taken. In addition, the thirty day period during which the trial court retains control of its judgments had long since expired before the court took any action. Sections 510.340 and 510.370, V.A.M.S.

On October 4, 1963, the court set aside the default decree, defendant filed answer and cross petition and the court proceeded to hear testimony and tried the controversy on the merits.

The transcript is lengthy and contains some serious charges or at least suggestions of serious misconduct especially against the wife. The record showed that the defendant husband drank excessively, called his wife vile and indecent names and on occasions struck her and kicked her on the shins. Mr. Shields works for Sheffield Steel Company and earns approximately $500 per month.

There was testimony offered by defendant that plaintiff, who worked at Milgram's store, often neglected the children; that she stayed out quite often until the early morning hours, refused to state her whereabouts, drank frequently and sometimes to excess, and went to taverns in the company of married men. It was further suggested by defendant that she went out socially with negro men and frequented negro taverns. It was also charged that she carried on unnatural relationships with members of her own sex, especially with a high school girl and with a woman about her age who occupied the same living quarters. These women and plaintiff squarely denied any such relationships. Plaintiff denied ever having had any dates with negroes or going into colored taverns. Plaintiff had ambitions to become an author. She had prepared and there was in evidence the outline of a novel which she planned to write depicting the acquaintance, courtship and final marriage of a white girl and a negro man.

The only direct and unequivocal testimony that plaintiff visited black and tan taverns or had dates with colored men came from the testimony of one Lawrence A. Randall. Randall is a negro, employed part time as an automobile salesman and, as he described it, a part time detective or private investigator. At the request of defendant he 'investigated' Mrs. Shields, and was specially directed to learn if she was 'associating with people of the negro race'. He testified that he followed plaintiff and her girl friend upon numerous occasions when they were in an automobile with two negro men. He detailed trips made by these four to various taverns and hotels. He testified partly from written notes which he claimed were made at the time. He told about these women being picked up at their home in the Lake Lotawana district in December, 1962, when in truth and in fact plaintiff and her girl friend did not move to the Lake Lotawana district until April, 1963. He denied that defendant had paid him for the investigations, stating he did not know how much his charges would be, that they 'might be a million or might be nothing'. This investigator at the time was 71 years of age, had one plastic eye and one eye which he said was good. The trial court indicated that it did not believe this man's testimony. Neither do we.

The testimony is clear that at the time the default decree was entered the minor children were residing with William W. and Sarah McKnight,...