Tootle v. Tootle, 23709
| Decision Date | 03 December 1962 |
| Docket Number | No. 23709,23709 |
| Parties | Jack TOOTLE, Appellant, v. Winifred W. TOOTLE, Respondent. |
| Court | Missouri Court of Appeals |
Strop, Watkins, Maughmer & Roberts, St. Joseph, for appellant.
Sprague, Wilcox & Houts, St. Joseph, for respondent.
This is an appeal from an order of the trial court modifying the child custody and visitation provisions of a previously rendered and modified decree of divorce. The order permitted defendant-respondent, mother of two minor children involved, to take them out of the state to her residence in Michigan for a vacation visitation in the summer of 1962. Plaintiff-appellant, father of the children, has appealed.
Plaintiff and defendant were divorced on October 2, 1958, and plaintiff was awarded custody of their two minor children, a boy presently 8 years old, and a girl whose age is now 12 years. In general terms defendant was granted reasonable rights of visitation with the children. This court affirmed the decree of divorce and custody in Tootle v. Tootle, Mo.App., 329 S.W.2d 218.
On June 13, 1960, the trial court modified the original decree by specifically providing the time and place of defendant's visitation with the children. Such privilege was limited to visits at defendant's apartment home in St. Joseph, at a country club in Andrew County, and elsewhere in Buchanan County. The decree, as modified, further provided that 'Defendant * * * shall have no right of visitation with said children, or with either of them, outside of the State of Missouri, and the defendant shall at no time cause to be taken or take said children, or either of them, outside of the State of Missouri'.
Since November of 1960, defendant has been regularly employed by a department store in Detroit, Michigan. She has been living in the home of her mother at Grosse Pointe Farms, Michigan. However, she has maintained the apartment in St. Joseph to which she has returned at rather frequent intervals for visitation with her children.
In March, 1961, defendant filed a motion in which she prayed the trial court to permit a reasonable summer vacation visitation of defendant and her minor children (in the year of 1961) 'outside of the State of Missouri, at the home of her mother'. The motion was overruled by the trial court on May 19, 1961. The court also denied defendant's motion for rehearing or a new trial. No appeal resulted.
Thereafter, and on February 9, 1962, defendant filed the motion that gave rise to this appeal. It alleges in substance that since November 7, 1960, she has had full time employment at a department store in Detroit, Michigan, that she has received promotions, that she has returned to St. Joseph for visits with her children, when her employment permitted, that her brother (who lives in Michigan) would be married the last part of July or the first of August, 1962, and that she would like to have her children present for the wedding. In her motion defendant prays the court to supplement its decree so as to permit the minor children to visit with her outside the State of Missouri, and that she be allowed to take them to the home of her mother in Michigan, for a summer (1962) vacation visit.
After hearing evidence, the trial court made findings in part as follows: . * * * 'It is also found by the Court that the visitation period should begin on the 20th day of July, 1962, and terminate on the 5th day of August, 1962'. On the basis of its findings, the trial court sustained the motion and entered an order permitting the children's visit at the time and place specified in the findings we have quoted. However, the trial court specifically retained jurisdiction of the case and required by 'suggestion' that defendant file an executed waiver of any right to attempt modification of the decree in any other court. The waiver contains her agreement to the sole and continued jurisdiction of the trial court. Plaintiff duly perfected his appeal.
In contending that the trial court erred by granting defendant the summer vacation visitation in Michigan, plaintiff amplifies two main assignments. The first point made is that it was error for the court to indulge in the 'extremely hazardous experiment' of permitting the visitation by the children in the State of Michigan. Plaintiff argues that their mere temporary...
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