Smith v. Smith, 32966
| Decision Date | 17 December 1968 |
| Docket Number | No. 32966,32966 |
| Parties | Mary Ann SMITH, Plaintiff-Appellant, v. Roy SMITH, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
Guilfoil, Symington, Montrey & Petzall, John P. Montrey, St. Louis, for plaintiff-appellant.
Hal B. Coleman, Clayton, for defendant-respondent.
This is an appeal from the judgment of the Circuit Court sustaining defendant's motion to modify a divorce decree and awarding custody of the son, Gregory, to the father, Roy Smith.
In the original divorce decree, entered January 11, 1963, plaintiff, Mary Ann Smith, was granted a divorce and was awarded custody of the two children born of the marriage, Gregory, age ten years, and Gaye Marie, age eight years, and was awarded child support of $200.00 per month per child. Defendant's motion to modify the original decree was filed August 31, 1966. On the 23rd day of December, 1966, plaintiff also filed a motion to modify, asking that the child support provisions of the original decree be increased to $300.00 per month per child. On the same day, December 23, 1966, plaintiff filed her motion for allowance of attorney's fees asking for attorney's fees not only in connection with defendant Roy Smith's current motion to modify but also for attorney's fees and expenses in defending a former motion to modify which was filed by the defendant in March, 1963. Plaintiff, on December 3, 1963, had voluntarily dismissed her earlier motion for allowances without prejudice, and thereafter on the 10th day of September, 1964, defendant dismissed his first motion to modify.
In the case now before this court, plaintiff was awarded $500.00 for her attorney's fee, but no allowance was made for services of her attorney in the former and dismissed motion to modify.
Plaintiff, Mary Ann Smith's motion to modify was sustained to the extent of increasing the child support for the daughter, Gaye Marie, from $200.00 per month to $275.00 per month.
Plaintiff claims error in the Circuit Court's awarding custody of Gregory to the father and in the Court's refusal to allow plaintiff money for attorney's fees and expenses in connection with defendant's first motion to modify, which was dismissed September 10, 1964.
The principal question in this case involves the solemn and important duty of deciding the custody of a child as between his father and mother. The decision of a trial court in custody matters, when tested by appeal, comes weighted with the inference that the court has properly exercised its judicial discretion in determining the best interests of the child, and unless such discretion has been abused, or unless we can point to some reason for not deferring to the findings of the trial court or, of course, unless this court is convinced that the welfare of the child requires some other disposition, the decree should not be disturbed.
Frequently in custody cases courts are called on to consider evidence of immorality, varying degrees of bad conduct and habits or even rascality of one or both of the parents. But that is not this case. The record discloses that both the mother and father are of respectable character and that both live in neighborhoods where social, educational and other environment advantages are about equal.
The original divorce decree awarded custody of the two children, then ten and eight years of age, to the mother, and no appeal was taken and therefore the decree was final and can not be disturbed except in such a proceeding as this. Any modification of the original decree can only be made upon proof of new facts and changed circumstances and conditions subsequent to the original decree which, in the best interests of the child, require modification of the custodial provisions of the original decree. Watkins v. Watkins, Mo.App., 230 S.W.2d 778; Baer v. Baer, Mo.App., 51 S.W.2d 873; Hurley v. Hurley, Mo.App., 284 S.W.2d 72; Cherry v. Cherry, Mo.App., 272 S.W.2d 700. It is our duty on appeal to review the entire record with regard for the guiding principle that the welfare of the child is of controlling importance. Mayo v. Mayo, Mo.App., 244 S.W.2d 415; Pope v. Pope, Mo.App., 267 S.W.2d 340; Davis v. Davis, Mo.App., 254 S.W.2d 270. The defendant carries the burden of showing by a preponderance of the evidence changed facts and circumstances which, in the best interests of the child, require a modification of the custodial provisions of the original decree. Armstrong v. Armstrong, Mo.App., 185 S.W.2d 845; and Davis v. Davis, supra.
The record must be reviewed carefully to determine if the welfare and best interests of the son, Gregory, will be promoted by placing him in the custody of his father. While this court has, on at least two occasions, said that the fact that a child has grown older is not, in and of itself, a sufficient change of condition to warrant a change in custody, Fordyce v. Fordyce, Mo.App., 242 S.W.2d 307, 314, and Davis v. Davis, supra, 254 S.W.2d l.c. 273, yet we must not close our eyes to the fact that this sixteen year old young man is not within the age span when the chick needs the hen, the colt the mare, and the cub the mother bear. Gregory will be seventeen next April. He has been with his father since July 29, 1966, nearly seven months before the hearing on the father's motion to modify. July 29, 1966, he packed his clothes and went to his father's home. In explaining his reasons for leaving his mother's home, he testified:
He then related how his mother went from the home in the evenings, and when his mother left he would be in charge of his twelve year old sister, but that his sister would not obey him and that his mother would give him 'heck;' that he and his sister constantly fought--that that his mother helped with the chores around the house but not often; that his mother was home Saturdays, but she usually was not helping him. '* * * she'd just watch.'
Mrs. Smith explains Gregory's going to live with his father by relating an incident occurring the morning that Gregory left her home. Mrs. Smith called Gregory by telephone and told him that he was to start cleaning the basement that day and for him to stay home and do that job. About forty-five minutes later, the daughter, Gaye Marie, called her mother, who was at work, and told her that Gregory had packed his clothes and had left the house. Gregory claimed that the incident about his mother asking him to clean the basement didn't have much to do with his leaving and going to his father's home.
On prior occasions, Gregory had told his father that he wanted to live with him, but the father had always told him that he belonged with his mother and sister. When he called defendant July 29, Gregory was crying and told his father that if he wouldn't let him come to his house, he was going some place and didn't know where. The defendant then told the boy to come to him. The mother does not claim that the father did anything to entice or induce the son to leave the mother's home. Gregory testified positively that his father did nothing to get him to move and that, in fact, he tried to get him to go back. Mr. Smith testified that when Gregory came to his house in July, 1966, he told him that he should go back to his mother, but because of the boy's emotional state and strong feeling about wanting to live with him, the father refused to force him to leave.
The record discloses a very close relationship between this father and son. It is apparent also that Gaye Marie is equally as close to her mother. Gregory and his father take many trips together. They are together in the home nearly every night. The father is deeply interested in his son's work in school and encourages Gregory in every way. Gregory's grades have improved since he has resided with defendant. His lowest grades are in Language and Spanish. The father has had Gregory's Spanish teacher bring phonograph records to the home to aid him with his Spanish, and has encouraged his son to read books. This young man attends church every Sunday, keeps regular hours, joins the father in performing certain duties in the home, including cooking and cleaning house. Gregory bowls every Friday at 4:00 P.M. and his father picks him up at 6:00 P.M. His health, his pleasures, his comforts and his education have been zealously looked after by the defendant.
Without any thought of rewarding or punishing either parent, and keeping in mind the ultimate question, were the best interests of the son himself served by the terms of the modification appealed from, we think the answer must be given in the affirmative. We have said many times that the welfare of the child itself is the first consideration always to be kept in mind, and is far superior to the claim of either parent. If a child be of sufficient age to form an intelligent preference, the court or judge may consider that...
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