Wood v. Wood
| Decision Date | 15 February 1966 |
| Docket Number | No. 32121,32121 |
| Citation | 400 S.W.2d 431 |
| Parties | Lowell K. WOOD, (Plaintiff) Respondent, v. Nancy V. WOOD, (Defendant) Appellant. |
| Court | Missouri Court of Appeals |
Milton F. Napier, Claude W. McElwee, St. Louis, for appellant.
Shaw, Hanks & Bornschein, Claude Hanks, Clayton, for respondent.
This is an appeal from a final order and judgment modifying a previous order and judgment entered on January 11, 1963, changing the custody of the minor child of the parties herein.
This is not the first appeal by the parties herein regarding the custody and support of their minor child. In a previous appeal taken by the defendant (wife) herein, Mo.App., 378 S.W.2d 237, we pointed out that the minor child herein has been the subject of repeated proceedings between the parties since the original decree of divorce was granted to defendant on January 14, 1959. In the original decree of divorce the custody of the child was awarded to defendant, and certain rights of temporary custody were given to plaintiff. Subsequently, by either contested proceedings or by stipulations consenting thereto, the original decree with respect to custody and child support was modified by orders made on July 11, 1960, November 3rd, 1961, and January 11, 1963. The pertinent parts of the order made on the last mentioned date are as follows:
'It is ordered by the Court, by consent of the parties hereto, that the decree of divorce rendered herein on the 14th day of January, 1959, * * * and as modified on the 11th day of July, 1960, * * * and as modified on the 3rd day of November, 1961, * * * be again modified, so that from the date hereof, the plaintiff shall have the exclusive and undisturbed custody of the minor child named Lowell K. Wood, Jr., during the present school term until the middle of the vacation period of 1963; beginning with the middle of the vacation period of 1963, defendant shall have the custody of said child until the middle of the vacation period of 1964, and each party to have successive rights of custody, alternately thereafter, until the further order of the Court.
'It is further ordered, adjudged and decreed by the Court that the plaintiff and defendant shall have the temporary custody of said minor child on alternate weekends from 9:00 A.M. Saturday to 6 P.M. Sunday, except during the summer vacation periods when each party shall have unrestricted and undisturbed custody of said minor child, until the further order of the Court.'
On the 7th day of June, 1963, plaintiff filed a motion to modify the order and judgment of January 11, 1963, modifying the original decree of divorce. On July 12, 1963, the trial court sustained plaintiff's motion to modify filed on June 7, 1963. Defendant took an appeal from this order and judgment to this court. We reversed the order and judgment entered by the trial court and remanded the cause for a new trial before another Judge. See our opinion Wood v. Wood, Mo.App., 378 S.W.2d 237.
After plaintiff's motion to modify, filed on June 7, 1963, was reinstated upon the trial court's docket, plaintiff filed an amended motion to modify on June 20, 1964, and on July 14, 1964, and July 26, 1964, amended his amended motion by interlineation. We deem it unnecessary to recite the allegations of plaintiff's amended motion to modify as amended by interlineation. After a hearing on plaintiff's amended motion to modify, the trial court on July 31, 1964, entered its order and judgment sustaining plaintiff's amended motion to modify and modified the previous order and judgment entered on January 11, 1963, by awarding the plaintiff the care, custody and control of Lowell K. Wood, Jr., the minor child of the parties, until the further order of the court. The court further ordered and adjudged that the defendant shall have temporary custody of said minor child on the first and third weekends of each month at stated times and for and during the first 21 days in August of each year, and further ordered and adjudged temporary custody of said minor child during certain holiday periods of each year. The court made a further order and judgment regarding support and maintenance during some of the periods the child would be in the custody of the defendant, the details of which we need not recite here. As we have said, it is from this order that defendant has taken the appeal.
It appears from the record herein that the plaintiff-father had the custody of the child from January 11, 1963, until the 15th day of July, 1964, when the child was turned over to the defendant, just 12 days before the testimony was heard in the instant matter on appeal. The minor child herein, Lowell K. Wood, Jr., was frequently referred to as 'Chipper' by both parents in the course of their testimony. The child was 10 years old at the time of the trial and was living with the plaintiff-father and his wife (plaintiff married again) at plaintiff's residence located at 2545 Clifton Avenue in St. Louis, Missouri. During the period of approximately one and one-half years that the child was with the plaintiff, Chipper attended the Epiphany School and Church. The plaintiff lived within the boundaries of the Epiphany parish and both plaintiff and the minor child would attend Epiphany Church every Sunday. It appears that on the occasion when the child was with the defendant-mother they attended church at either St. Anthony's or St. Pius Church, the latter church being about three or four miles from the home of plaintiff. The child did very well at Epiphany School. His report card showed four 'E's' and one 'U.' The child testified that the one 'U' was for 'keeping my desk clean.' The child always had good grades in school. While attending Epiphany School the plaintiff would take the child to the school in the morning and plaintiff's wife would pick the child up in her automobile at the close of the school day. The child belonged to the Cub Scouts and plaintiff's wife would take him to the den meetings. This continued until the den meetings were held in a home across the street from the plaintiff's home.
Defendant-mother testified that the boy was a member of the Cub Scouts before he went to live with his father in January 1963. The mother of Chipper owns property at 3020 Cherokee Street in St. Louis, which property consists of two apartments on the first floor that are rented out and a five room apartment on the second floor, consisting of a living room, a dining room, two bedrooms, a kitchen and a bath. The second floor apartment is occupied by the defendant and no one else lives with her except the child when he was there on visit. She testified that she occupied the back bedroom and that when the child was with her he would occupy the front bedroom. However, during the period the child was with her immediately before the hearing, the child shared the back bedroom with her and she and the child slept together. The need for the child sleeping in the back bedroom with her was occasioned by the painting and remodeling of the front bedroom.
Defendant owns and operates a beauty shop on Cherokee Street and it is located very close to the home of defendant. Her daughter, by a previous marriage, Nancy, is employed by her. Defendant operates the beauty shop two full days and a part of three days and remains open two evenings a week until 6 P.M. She testified that the shop is closed on Mondays and on Tuesdays. On Wednesdays she is finished by noon and on Saturdays she is finished between three and four-thirty P.M. Whenever the child was with his mother, the defendant herein, he stayed either in the beauty shop or in defendant's home during the time defendant was working. When he stayed in defendant's home he was either alone or with a little girl, named Tammy, who the child said was 10 years of age. During the time the child was with his father, the plaintiff herein, he visited his mother on Saturdays and Sundays and spent Saturday nights with his mother. When the child would visit his mother he would either watch television with her or they would go to a movie together. The child testified that on one occasion he attended the Ice Follies, accompanied by his mother and Art Pendelli. When the child would visit his mother on a number of occasions, Mr. Pendelli drove the child and the mother to church on Sundays and drove them home from church. On one occasion the child, his mother and Mr. Pendelli went on a fishing trip. This fishing trip was the result of Mr. Pendelli learning of the child's interest in fishing. No one visited the mother in her apartment when the child was there, except on several occasions when the man, who the boy said 'worked downstairs,' would come up to the mother's apartment and remain 10 or 15 minutes.
On several occasions when the child arrived to spend a weekend with his mother she was not at home when he got there and the child would be returned later. The mother explained that on one of these occasions she had been painting next door and at other times she was shopping for groceries. On some occasions when the child would arrive and the mother was not home, he would stay in the mother's apartment with Nancy, the daughter of the mother, who was 19 or 20 years old and married at the time of the trial. On one occasion while waiting for the mother to return from a shopping tour the child stayed in a pool hall with Nancy for approximately 25 minutes until the mother's return. This pool hall is located next door to the mother's beauty shop and while waiting in the pool hall Nancy engaged in a game of pool with three boys. There is no showing that the child ever played pool there.
It is apparent from what we have said that the child testified in this case, which was regrettable, but apparently his testimony was needed in order to prove some statements made by the mother to the child about the father. In the course of the boy's testimony he said that on one occasion his mother said his father was lower than...
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