Wald v. Wald

• Citation: 151 S.W. 786,168 Mo. App. 377
• Parties: WALD v. WALD.
• Decision Date: 03 December 1912
• Court: Missouri Court of Appeals

151 S.W. 786

168 Mo. App. 377

WALD v. WALD.

St. Louis Court of Appeals. Missouri.

December 3, 1912.

1. DIVORCE (§§ 245, 303) — CUSTODY OF CHILDREN OF PARTIES — JURISDICTION OF COURT.

Under Rev. St. 1909, § 2381, authorizing the court at any time to review any order awarding alimony and the custody of children of the parties, the court granting a divorce retains jurisdiction as to the modification of a judgment touching the custody of the children, and the same may be brought to the attention of the court by motion in the original cause as a proceeding constituting only a continuance of the original jurisdiction of the court.

2. DIVORCE (§ 300) — CUSTODY OF CHILDREN OF PARTIES — JURISDICTION OF COURT.

Where the custody of a child is awarded in divorce proceedings, the child becomes a ward of the court, and the court should not permit its removal into another jurisdiction, unless its best interests require it.

3. DIVORCE (§ 303) — CUSTODY OF CHILDREN OF PARTIES — JURISDICTION OF COURT.

Where a wife obtained a divorce from her husband, and the court awarded to her the custody of the child, and she was about to remove it from the jurisdiction of the court, the husband, on motion for a modification of the judgment, was entitled to a hearing to determine whether the best interests of the child required its retention within the jurisdiction of the court, or whether the removal would best subserve its interests.

Appeal from St. Louis Circuit Court; Chas. Claflin Allen, Judge.

Action by Cad S. Wald against Emile M. Wald. From a judgment denying the application of defendant to modify the order awarding the custody of a child of the parties, he appeals. Reversed and remanded.

This is an appeal from the judgment of the court denying defendant the right to introduce testimony on his motion to modify a decree of divorce entered against him in favor of plaintiff several years theretofore with respect to the custody of the minor child of the parties. We adopt from defendant's (appellant's) brief the following statement of facts which reveals the question in controversy and the ruling of the court thereon:

"On October 3, 1904, the plaintiff in this proceeding recovered a decree of divorce from defendant and was awarded alimony and the custody of their minor child, Lucile, then aged six years; and on October 31, 1904, the decree was modified, allowing defendant to visit the child on Tuesday and Thursday evenings of each week, and allowing him to take her out on Saturday and Sunday of each week. In February, 1911, the defendant filed his motion in said cause, under section 2381, R. S. 1909, to modify the said decree touching alimony and touching the custody of said minor, in which motion the defendant, after reciting the then state of the record, alleged that he has at all times since the decree paid to plaintiff the alimony as in the decree provided; that he has at all times recognized and respected her right to the custody of said child, as in the decree provided; also that he has at all times since the decree taken advantage of the privilege granted to him of visiting the child on Tuesday and Thursday evenings, and of visiting or taking her out on Saturday and Sunday, of each week; that said child is now 13 years of age, and the relations between her and her father, the defendant, have been most filial and affectionate, and that, besides paying the alimony to the mother, the defendant has also from time to time, when occasion made it proper to do so, provided the child with such necessaries and luxuries as his means permitted; that since the decree plaintiff has been residing with her mother and sister at 5450 Clemens avenue, St. Louis, Mo., and the child has been residing with her; and that defendant has always been permitted to visit her at the said abode.

"It is also alleged that plaintiff contemplates becoming married in the near future to a man residing at Seattle, Wash.; that her future husband is well able to provide for her support, and after the marriage she will no longer need alimony from the defendant to provide for her support; that plaintiff intends to remove said child to Seattle as her future home, and to permanently take the child from St. Louis, and beyond the jurisdiction of this court, and thus deprive the defendant of his right to visit and take out the child, as in the decree provided. It is also alleged that the best interests and welfare of the child demand that she be not taken away from the city of St. Louis, and beyond the jurisdiction of this court, and thus be deprived of the advantage of the superintending control of this court, in case her mother, through her conduct or through the conduct of her future husband, forfeits her right of custody of said child; that the welfare of said child also demands that she be not taken into the home of a stepfather; also that she be not taken away from the school where she is now being educated, and from the companionship of her playmates and relatives, all of whom reside in the city of St. Louis; also that she be not taken away, so that she will lose the companionship, advice, and assistance of her father, the defendant, as assured to her under the decree.

"It is also alleged that defendant is in the employ of the Ferguson-McKinney Dry Goods Company, in St. Louis, and is in charge of their claim department; that he is earning $100 per month; that he resides at 5017 Delmar avenue, is of good moral character, and enjoys good associates and good repute and standing; that he is well able to provide a proper and comfortable home for his said child, under proper superintendence, and to properly provide for her education and support and for her welfare; that he is able to have her make her home at his sister's house, where she will also have the benefit of the supervision and care of his sister, who is a widow and well qualified to look after the wants and needs of the child; or, if the court deems it more advantageous for the welfare of the child,...