Tuter v. Tuter

• Decision Date: 03 October 1938
• Docket Number: No. 5938.,5938.
• Citation: 120 S.W.2d 203
• Parties: TUTER v. TUTER.
• Court: Missouri Court of Appeals

120 S.W.2d 203

TUTER v. TUTER.

No. 5938.

Springfield Court of Appeals. Missouri.

October 3, 1938.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

"Not to be published in State Reports."

Proceedings by Lena Pauline Tuter against Harold B. Tuter to modify divorce decree as to custody of one of parties' minor children. From judgment granting custody of the child to defendant for last five days of each calendar month, plaintiff appeals.

Decree modified.

O. J. Page, of Springfield, for appellant.

No appearance for respondent.

FULBRIGHT, Judge.

This cause comes to us on appeal from the circuit court of Greene county. On November 11, 1936, Lena Pauline Tuter divorced Harold Tuter. At the time the decree was granted they were the parents of three minor children, two boys and a girl. The custody of the girl, Anetta Mae, the oldest of the three children, then about three years of age, was awarded to defendant's parents, the grandparents of the child. On July 7, 1937, upon motion by plaintiff, the original divorce decree was modified and the court awarded the custody to the mother, plaintiff herein. Thereafter defendant filed his motion to modify the decree as theretofore modified and asked that the custody of Anetta Mae be awarded to him. His motion, in part, is as follows:

"* * * that until the last motion to modify was passed on, defendant herein had been in the constant company and companionship of said child, Anetta Mae, and further states that the said child, Anetta Mae, has been in the constant care and companionship of her grandfather, Henry Tuter, and her grandmother, Annie Tuter; that in fact the said grandmother has had the constant care and protection of said child from the day of its birth until the motion to modify herein referred to was sustained and the said child was taken from her custody.

"Defendant further informs the court that he now has and maintains a home of his own and that he is well able to take the said child, Anetta Mae, into his said home where he and his wife and his mother as well can furnish and give to said child a healthy home with sufficient food and raiment for its sustenance and where they can and will look after its physical and moral welfare."

At the conclusion of the hearing the court modified the original decree as first modified by granting the custody of Anetta Mae to the defendant for the last five days of each calendar month. After an unsuccessful motion for a new trial, the plaintiff has duly appealed to this court.

It is disclosed by the evidence that the defendant married his second wife on March 24, 1937; that he and his said wife live with his father and mother in their home at 809 Warren Street, Springfield, that in addition to the defendant and his wife, his parents and their three minor children live in the same house (which has five rooms); that Mrs. Hazel Tuter, second wife of the defendant, is employed at Heer's store where she has worked for ten years and receives a salary of $12.50 a week; that the defendant works about one day a week, "and has not been doing that all the time recently"; that defendant and wife have one room in the Tuter home and all cook and eat together. Mrs. Tuter, wife of the defendant, goes to work about 7:30 a. m. and quits at 5:30 p. m. She and her husband take their lunch at Heer's. During her absence from the home, Mrs. Henry Tuter, mother of defendant, would look after the child the most of the time. She states: "I am at home most of the day when our present daughter-in-law is gone, and if this child was in our home I would see that she is taken care of just like I always did when her mother was at home."

It appears that there is considerable ill feeling between the families of the defendant and the plaintiff, as is usual with cases where the family circle is broken by divorce, and especially where the custody of minor children is involved.

The plaintiff has had the custody of all three of her children, including Anetta Mae, since July 7, 1937. Although there has been some controversy over Anetta Mae visiting her father and paternal grandparents since that date, the plaintiff states that she is willing for the defendant and his parents "to have the privilege to come and see her at our home. They are welcome to come any time they want to and I will treat them properly." She further states: "I have never refused access to my home to come and see her, but they have never asked me to come to get to see her."

Mrs. Henry Tuter, the grandmother, testified: "I can't go to her home to see her, if given the privilege to do so."

By the court: "Why can't you go there?"

"A. It has just been this way, we don't get along. I have never seen this child since this matter was up before, to talk to her but one time on the square, right at the entrance of the square. I drove by the house one evening but never stopped and talked to her and she has never been at my house. I have never requested or attempted to go to her home to see her."

Plaintiff and her three children live with her father, mother, sister and brother in their home in Springfield. The father is employed at the Frisco railroad shops. They seem to have a comfortable home. All members of the household cooperate and the plaintiff's three children are getting the proper care and attention of the mother. She says: "I believe that I am in a better position to take care of Anetta Mae, to feed, clothe and educate her, give her my motherly attention and let her have the companionship of her two little brothers. I am in a much better...