Watkins v. Watkins
| Decision Date | 05 June 1950 |
| Docket Number | No. 21386,21386 |
| Citation | 230 S.W.2d 778 |
| Parties | WATKINS v. WATKINS. |
| Court | Missouri Court of Appeals |
Richard C. Jensen, Kansas City, Maurice Pope, St. Joseph, Walter A. Raymond, Kansas City, for appellant.
Landis & Landis, John C. Landis, III, Strop & Strop, St. Joseph, for respondent.
This case comes here on appeal from the trial court's ruling on motions to modify a judgment of divorce with reference to the provisions of the original decree touching the custody of the two minor children of the parties. The appellant was the plaintiff in the original divorce case and was the first person to file a motion to modify. However, the decree went to the defendant on his cross-bill in the original proceedings, and the decree was also in the defendant's favor on his cross-motion to modify the decree as to the custody.
The parties were married on January 2, 1941. They were divorced November 14, 1948. The divorce was awarded to the defendant, the husband, on his cross-bill, and he was adjudged to be the innocent and injured party. The defendant's cross-bill in the divorce proceeding alleged, and the court's decree adjudicated, that the plaintiff wife remained away from home for long intervals of time without disclosing her whereabouts to the defendant; that she neglected to care for the children, failed and neglected to cook proper meals for them, or to dress and care for them properly; that she failed and neglected to take care of the home and failed frequently to cook meals for the defendant; that on numerous occasions she threatened to abandon the children and the defendant. It was also pleaded and adjudged that plaintiff associated with another man.
On the day the decree of divorce was entered, but prior to its rendition, the parties entered into a written stipulation relative to certain property rights and relative to the custody of their minor children, subject to the approval of the court. There are two minor children, Catherine Ann Watkins, who was aged six, at the time of the original decree and seven at the time of the modification, and Thomas Dodd Watkins, who was aged two at the time of the original decree and three at the time of the modification.
The stipulation provided that in the event of a divorce it was the desire of the parties that plaintiff would have the custody of one of the children 'until and unless otherwise ordered by the Court,' but that she should not remove the child from St. Joseph, Missouri. The defendant insisted on this provision because of plaintiff's neglect of the children.
The decree of divorce referred to this stipulation and followed it by awarding custody of Thomas Dodd Watkins to defendant and the custody of Catherine Watkins to the plaintiff 'until and unless otherwise ordered by the court.' The decree further provided that neither child should be removed from St. Joseph, Missouri.
On April 1, 1949, following the divorce the preceding November 15, plaintiff moved to Kansas City, Missouri. On April 8th she filed her motion to modify the decree. On the 22nd day of April she married M. J. Coen. On May 20, 1949, she filed the amended motion on which the case was tried. In both the original motion and the amended motion she alleged that it would be for the best interests of the children to live together under the custody and control of either the plaintiff or the defendant, and she prayed the judgment of the court for such an order as would be for the best interests of the children.
The defendant filed his amended answer to plaintiff's motion in which he denied that it would be for the best interests of either of the children to be in the custody of plaintiff and her then husband. The defendant also filed his amended cross-motion to modify the decree in which defendant asked the court to grant to him the custody of Catherine Ann Watkins, he already having custody, under the original decree, of Thomas Dodd Watkins. The decree of the trial court was against plaintiff on her motion and in favor of the defendant, on his cross-motion, and the custody of Catherine Ann Watkins was awarded to defendant so that he now has the custody of both children.
Plaintiff, at the time of the hearing in August, 1949, was 31 years of age, and in excellent health, except that she was then pregnant. She was not employed and stated that she could be home with the children all the time if given their custody. She has ample means of her own. The apartment in which she lives in Kansas City with the present husband, Coen, is located in a newly developed addition of modern homes located between 45th and 47th Street on the Paseo, known as 'Village Green.' Her apartment has two bed-rooms, one for plaintiff and her husband, and one for the children. It is a nice residential district, five blocks from a grade school and three from a high school. A policeman takes the children across the Paseo in going to and from the grade school. Village Green is a planned area with playgrounds for children as a part of the program.
Although he had never seen plaintiff's apartment defendant stated: 'I assume it is probably a very nice home from the physical standpoint.'
M. J. Coen is Irish, 32 years of age, was born in Iowa and spent most of his boyhood in St. Joseph, Missouri, where he graduated from high school. While in high school he was captain of the basket ball team, vice-president of the student body and senior class in 1935. He also attended Junior College in St. Joseph and graduated from Oklahoma A. and M. at Stillwater, in January, 1940. He worked for Socony-Vacuum as assistant purchasing agent until he was drafted into the army in August, 1941. He was in the army for four and one-half years in various camps in this country and also served in the South Pacific. After leaving the army he went with his present employers who are investment brokers in Kansas City. He sells securities and has an annual income of between $10,000 and $11,000. He helped organize the Hi-Y in St. Joseph, belongs to the Central Presbyterian Church in Kansas City and is fairly regular in attendance. He became acquainted with plaintiff 15 or 20 years ago and had dates with her in 1937. November 11, 1942, he married Dorothy Yount. During the time he was married to Dorothy he carried in his wallet her picture and also the picture of plaintiff. Dorothy worked during the time she was married to Coen and bought her own clothes. She procured a divorce from him in Kansas City on February 10, 1949.
Plaintiff produced a number of witnesses who testified to the good reputation of plaintiff, her family and as to the good reputation of Coen.
Plaintiff testified that the children are very fond of Coen and show their affection for him in many ways; that he takes them to places of amusement and buys them presents. He testified that he was very fond of both children, approved plaintiff's desire to have their custody and was willing to assume any responsibility which might come from the children making their home with plaintiff and himself.
Plaintiff testified as to several ways in which she personally disapproved of the way in which the defendant and his family had treated the children during the time that they were with the defendant. Plaintiff said that the children played with no one at all so far as she knew, and were forbidden to play with her sister's children, but defendant's evidence showed that while the children were with defendant they played with a number of other children in the neighborhood, even including the children of plaintiff's sister. Plaintiff said that Catherine Ann's dresses were lengthened and made too long, but defendant's evidence showed that on account of the plaintiff herself not having done this, it had been the custom of defendant's mother and aunt to lengthen Cathie's dresses, and as soon as the plaintiff disapproved they ceased to do it. Plaintiff said that Cathie was forced to wear flannel pajamas instead of a silk nightgown. The defendant's evidence showed that this was her choice. Plaintiff complained that Cathie had been taught to kneel when saying her prayers. Defendant's evidence explained that this was the custom in the Watkins home because they are Episcopalians, but it was not forced on Cathie. Plaintiff said that the children were allowed to remain in swimming for five hours one day but defendant said this was not the case. Plaintiff said that Cathie's hair had been combed straight when it had previously been in pigtails, which was denied by defendant. Plaintiff said that Tommie was told to bite and not lick ice cream cones, which defendant said was done for the purpose of keeping him from letting the cones drip on his clothes. Of these complaints, the trial court, in summing up the evidence and announcing his ruling, said that they were of a trifling nature and, in the light of the testimony, had been completely dissipated.
It was admitted by plaintiff herself and by plaintiff's counsel, at her request in open court, that the defendant was a person of good reputation and good conduct.
Defendant is 33 years of age, a lawyer and a member of the firm of Watkins and Watkins. His evidence showed that he lived with his father and mother in a good neighborhood in St. Joseph, Missouri. This home has four bed-rooms thus furnishing separate rooms for the children, for the defendant and for the grandparents. The school facilities are excellent. The home environment is good. The grandparents, Mr. and Mrs. O. W. Watkins, Sr., and the defendant's aunt, Mrs. Cornell, who visits the Watkins home frequently, all testified as to their love of the children, and as to their willingness to take care of the children while the defendant is away from home during business hours. The children are devoted to their father, their grandparents and Mrs. Cornell. Mr. Watkins, Sr., testified: 'I have never seen greater affection displayed than the children show for their father.' The grandparents have...
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