85 Mo. App. 290 | Mo. Ct. App. | 1900
— On April 7, 1898, Mary C. Jennings, respondent, obtained in the St. Louis Circuit Court a divorce from her then husband, David E. Jennings, on the grounds,'as alleged in her petition, that the defendant had been negligent of and indifferent to his duties toward plaintiff and their children, had offered her such indignities as to render her life intolerable, and had in a fit of passion, without cause, severely choked and maltreated her. In reference to alimony the court made the following order: “It is further ordered by the court that plaintiff have the custody of Erancis and Carolyn, the minor children of said parties, and that the defendant have leave to visit and see them and to have them in his care at reasonable intervals, subject to the further orders of the court. It is further ordered and adjudged by the court, and so decreed, that plaintiff, until otherwise ordered by the court, be and is hereby awarded alimony of one hundred and twenty-five dollars, payable May 1, 1898, and one hundred dollars per month thereafter payable on the first day of every month thereof, so long as plaintiff shall be caring for said minor children.
“It is further ordered that plaintiff retain as her own absolute property, the furniture and other effects now in the residence No. 5600 Clemens Avenue, she to vacate said house May 1, 1898.”
At the October term, 1899, in the same court Mr. Jennings filed his motion to modify the foregoing order, by awarding him the custody of the two minor children named therein and to relieve him of the payment of any alimony to his divorced wife for the future. Eor grounds of this motion he alleged that Mrs. Jennings had neglected the children and
In Farrar v. Farrar, 75 Iowa 125, and Verson v. Ford, 37 Ark. 27, it was held that where the mother is an adulteress and the father is a proper person to take care of the children, their custody should be awarded to him. Bishop on Marriage and Divorce, sec. 1166, is to the same effect. Is the appellant such a father? His means are ample; he has shown affection for his children, but he has married a young woman without training in the rearing of children and who can not have a deep affection for the children, and he has removed to the city of Chicago, where his business takes him from his home about one-third of his time. One of the children is a female. To award the custody of the children to appellant in his present situation, would be to place them practically under the immediate care and control of the new, young and inexperienced wife, and to deprive them of that tender and loving care which only a mother can give, and remove them beyond the jurisdiction of the circuit court of St. Louis city, whose wards they are. The respondent is a woman of 44 years of age; the mother of two married daughters, one grown up son, has all the affection of a mother for these children, and has shown a mother’s solicitude for their care, education and happiness. But for the View Hotel affair her character would be unsullied. The evidence does not show that she is utterly depraved and wholly unsuited to the care of these children. In the absence of such a showing, as was said in the Edwards case, Vol. 3, page 478, Appeal Reporter, we hesitate to remove these children from the jurisdiction of the courts of this state to a foreign jurisdiction, and thus practically oust the jurisdiction of the circuit court over them and deprive it of its guardianship and power to make future orders for their custody, care and maintenance. The safer course for the present is to leave them as they are, trusting that the future conduct of the mother will sustain and bear out the good opin