Tines v. Tines

• Decision Date: 04 November 1919
• Docket Number: No. 15298.,15298.
• Parties: TINES v. TINES.
• Court: Missouri Court of Appeals

216 S.W. 563

TINES v. TINES.

No. 15298.

St. Louis Court of Appeals. Missouri.

November 4, 1919.

Appeal from Cape Girardeau Court of Common Pleas; John A. Snider, Judge.

"Not to be officially published."

Action by Cora Tines against James E. Tines, in which plaintiff was granted a divorce. From a subsequent order, awarding custody of minor child of the marriage to his maternal grandparents, defendant appeals. Reversed and remanded, with directions.

T. D. Hines and Frank Hines, both of Jackson, for appellant.

A. M. Spradling, of Cape Girardeau, for respondent.

BECKER, J.

The respondent, Cora Tines, had obtained a decree of divorce from her husband, James E. Tines, appellant here, some time in 1914. The decree awarded the custody of the son born of the marriage, James Ova Tines, at that time aged three years, for three months to the father, and at the expiration thereof "the custody of said child is to be delivered to the plaintiff at Cape Girardeau, Mo., for a like period of 3 months, and the possession and custody of the said child is to alternate at the end of every 3 months period at the same place, from the date of this decree until such possession, care, and custody is changed by further order of this court."

In February, 1916, the father remarried, and in June of the same year the former wife, Cora Tines, filed a motion to modify the decree theretofore rendered, asking that the full care and custody of the said child be given her. The father thereupon filed his motion, asking for a modification of the decree awarding him the sole custody of the child. These two motions were heard together, resulting in the court awarding the custody of the minor child to Mary P. Stone, its maternal grandmother, and ordering the father to pay the sum of $8 per month to Mrs. Stone for the support and maintenance of the child.

Respondent in her motion charged that the appellant was a man of bad repute and unfit to have the custody of the child, and further alleged that during the periods when the custody of the child had been in him the child had been neglected, had not been sufficiently clad in cold weather, and that the boy had not been given that watchful care which an infant of his years required, and that appellant had frequently mistreated the child.

Appellant's motion charged that respondent was an unfit person to raise the child, or even to have its custody for any period of time whatsoever, and that during the period when the child was supposed to be in her custody she gave him no attention whatsoever, but left him with said respondent's mother, Mrs. Stone, a woman 64 years of age, whilst the respondent herself lived 10 miles away in another town, where she worked as a waitress in a hotel, and only saw the child at stated intervals. The testimony adduced in support of the wife's motion is to the effect that the father was 33 years of age; was a locomotive fireman earning $108 per `month; that the hours of his employment were such that he would leave the house at 5 o'clock a. m., and work until 11 o'clock p. m., and then the following day he would not have to report for duty; that appellant had been married three times, his first wife and respondent having obtained divorces from him; that a little girl, then about eight years old, one of the children born of his first marriage, was in the custody of the appellant; and that, at the time of hearing the motions to modify, the appellant lived with his third wife and said infant daughter in a small home which he owned, the home being of the value of $1,600, and all but $250 of the purchase price having been paid; that for a period of time after respondent obtained her divorce from the appellant be continued to live in his home, having with him his infant daughter by his first marriage, and his son, James Ova Tines, and that he had in charge of his household a housekeeper; that this condition obtained until his remarriage, as above set out.

There was also testimony that the boy, while in the custody of his father, on one or two occasions had been seen playing with some negro children who lived in the neighborhood; that once the boy had been seen climbing on the back of a grocery wagon; that several times the boy had come into the home of his maternal grandmother, who lived across the street from his father, and asked for something to eat; that on one occasion the boy was seen walking in the gutter in water over his shoe tops, and that several times during the winter the boy had been seen out of doors too thinly clad. There was also testimony that the mother had purchased most of the clothing for the boy after the divorce.

It was further shown that after the divorce the mother obtained employment and lived in the city of Jackson, Mo., some 10 miles from Cape Girardeau, where she worked in a hotel as a waitress at a salary of $5 per week; that at the hotel she shared, with another girl, "two little rooms, with a dresser, washstand, and chairs, and in one room a bed"; that each time the three months period came for her to have the custody of the child she "would take him to Jackson for a couple of weeks, but for the remainder of the three months he would stay with my father and mother"; and when the boy was with her "she kept him in the hotel, in my room and in the office and kitchen, and around the hotel, but not in the yard, for there is none."

It further appears that respondent's mother is 64 years of age, and her fathe...