Wood v. Wood
| Decision Date | 21 April 1964 |
| Docket Number | No. 31726,31726 |
| Citation | 378 S.W.2d 237 |
| Parties | Lowell K. WOOD, Plaintiff-Respondent, v. Nancy V. WOOD, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Charles M. Shaw, Claude Hanks, Clayton, for plaintiff-respondent.
Milton F. Napier, Claude W. McElwee, St. Louis, for defendant-appellant.
DOERNER, Commissioner.
This is an appeal from a final order and judgment modifying that part of a decree of divorce regarding the custody and support of the parties' minor child.
The transcript reveals that the custody of their minor son, Lowell K. Wood, Jr., has been the subject of repeated proceedings between the parties since the original decree of divorce was granted to defendant on January 14, 1959. The view we take of the case makes it unnecessary to dwell at length upon the successive modifications of that decree. It is sufficient to say that by the original decree 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 April 14, 1960; November 3, 1961; and January 11, 1963. The order made on the last mentioned date directed that plaintiff was to have the exclusive and undisturbed custody of the child until the '* * * middle of the vacation period of 1963 * * *'; defendant was to have custody from the middle of the 1963 vacation period until the middle of the 1964 vacation period, '* * * and each party to have successive rights of custody alternately thereafter.' It was further ordered therein that plaintiff and defendant were to have temporary custody on alternate weekends, from 9:00 A.M. on Saturday to 6:00 P.M. on Sunday, '* * * except during summer vacation periods when each party shall have unrestricted and undisturbed custody of said child. * * *'
Matters thus stood until June 7, 1963, when plaintiff filed a motion to modify the decree, in which he alleged that the health, welfare and educational standing of the child had greatly improved during the time the minor was in plaintiff's custody; that the child desired to remain with plaintiff; that the defendant was emotionally unfit to care for the child; that the environment wherein defendant resided was unsatisfactory and improper for the rearing of a minor child; that the conditions had grown worse since the previous order of court, and that to require plaintiff to surrender custody to defendant would greatly affect the child by seriously impairing his education, welfare, and mental and physical health. The prayer was that plaintiff be granted sole and permanent custody.
On June 20, 1963 defendant filed an application for the disqualification of the judge presiding in Division No. 16 of the court, in which division the motion was pending, on the grounds of bias and prejudice on the part of the judge, which defendant stated she had first ascertained on the preceding day; and defendant requested the court to call in another judge to sit in the case. The application was presented and denied on the same day. Thereafter, on July 2, 1963, defendant filed an answer to plaintiff's motion to modify wherein she alleged that the matters stated in the motion had been fully adjudicated by the order of January 11, 1963, and were res adjudicata. A trial was held on July 5, and on July 12, 1963, the court entered an order giving plaintiff permanent custody of the child, and providing that defendant was to have temporary custody at certain specified times. Support money was limited to the month during the vacation period when defendant was to have temporary custody. Following an unavailing motion for a new trial, defendant appealed.
The first, and in our opinion the decisive, point raised by defendant is that the court erred in failing and refusing to disqualify himself, and in declining to call in another judge, when so requested by defendant. In support of her argument defendant cites Civil Rule 51.03(b), V.A.M.R. and Hayes v. Hayes, 363 Mo. 583, 252 S.W.2d 323. In that case it was held that a motion to modify a divorce decree is a 'civil suit' within the meaning of those words as used in the statute superseded by Civil Rule 51.03; and that a proper and timely application to disqualify should be sustained when filed in such a proceeding. Plaintiff concedes...
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Chilcutt v. Baker
...that very purpose. * * *' Hayes v. Hayes, 363 Mo. 583, 252 S.W.2d 323. The same is true of an order modifying such a decree. Wood v. Wood, Mo.App., 378 S.W.2d 237. The subject of the inquiry under a motion to modify a decree of divorce is whether there has been such a change of condition si......
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