ARTHUR C. MOTHERSHEAD, APPELLANT, v. MAUDELLE MOTHERSHEAD, RESPONDENT.
Kansas City Court of Appeals
April 6, 1942
Rehearing Denied May 4, 1942
161 S. W. (2d) 669
BOYER, C.- This is an appeal from an order of the Circuit Court modifying a previous judgment respecting the custody of the minor child of the parties. The respondent was granted a divorce upon her cross-bill October 31, 1939, and at that time custody of the child was awarded to its paternal grandparents. The modifying order transferred custody to the mother July 22, 1941. After his motion for a new trial was overruled the father, deeming himself aggrieved by the judgment and decision of the court, duly appealed.
Reversal is sought on two grounds. First, that the court lacked power to modify the decree because no change of condition was pleaded or proved; and second, that defendant forfeited her right to custody in attempting to influence adversely the boy‘s respect for his father.
The motion to set aside the order respecting custody and to modify the decree alleged the granting of the divorce and entry of the following order:
“That Billy, the minor child of plaintiff and defendant be, and he hereby is, placed in the custody of the parents of plaintiff, Mr. and Mrs. A. D. Mothershead; that defendant have the right and privilege of visiting said child at all reasonable and convenient times, and that defendant shall have the right and privilege of having said child visit
her in her own home each year between the 15th of June and the 15th of August.”
The motion further states that the minor son is thirteen years of age; that since the decree he has not only been in the custody of Mr. and Mrs. A. D. Mothershead, the paternal grandparents, but in truth and in fact has likewise been in the custody of the plaintiff, an improper and unfit person to have the custody of said child; that plaintiff and his parents have alienated from her the affection of her son; that by their wrongful influence her said son has refused to visit her; that his custodians will not permit him to exhibit his natural love and affection for her or to associate with her; that it was beyond the power and jurisdiction of the court to award custody as was done in the first instance because the court determined that the defendant was the innocent and injured party, and did not find defendant to be incompetent or incapable of having the custody and care of her child; that this is contrary to the public policy of the State and unlawful; that defendant is financially capable of supporting and maintaining her minor son, and that her financial status respecting her ability to maintain, support, and care for her minor son has changed since the decree of divorce; that the grandparents and the plaintiff are not fit and proper persons to have the care and custody of her son because the said Arthur C. Mothershead is permitted to live in the same house with her son and is addicted to drunkenness, and the grandparents have wrongfully influenced the said child against the defendant as aforesaid.
Plaintiff filed answer to this motion and denied all allegations thereof except that the minor son is thirteen years of age; that he is and has been in the custody of his paternal grandparents pursuant to the decree of the court; that the decree of divorce was rendered November 10, 1939, instead of October 31, 1939, and denies that there has been any change of condition since the rendition of said decree; that all of the matters set up in defendant‘s motion were presented to the court and taken into consideration in formulating its decree; that upon the testimony in said trial it was established that defendant was not a proper person to have permanent custody of the child; that in determining where custody should be placed the court called said child to the stand and examined him and awarded custody in accordance with his definite request, and that there has been no change in the preference then expressed.
Defendant testified that she is forty years of age; that she lives near Halls, Missouri, with her brother who is Treasurer of Buchanan County; that she has been a teacher in a public school nearby for three years and had a contract for another year; that she had a life diploma to so teach; that she had taught eight years altogether; that she had received additional training at the Maryville Normal and kept abreast with her vocation; that her present salary is $90 a month
On cross examination, she was interrogated with a view of showing that she was a follower of Rosicrucianism. She said: “I merely read along those lines because I was curious to know;” that she had told her husband that it might help him; that it probably did help her at that time. Reference was made to a letter which she had written her husband, part of which is the following:
“Wish you would think seriously of these thots & know as I know that a cure for your afflictions, mine, & that of all men be in a strong desire and will to ‘Seek God’ & we‘ll ‘find Him’ and our problems and fears ‘vanish as mist before the rising sun.’ I can help U now but could not before. My help will come by revealing to you the beauty and strength as revealed in the Rosicrucian Philosophy. It is more beautiful than Masonary-its secret laws can be revealed only to the pure in heart. I gave the address of one in California. My study is from Quakertown, Pa., with a little different philosophy. If you desire more information concerning this one write me. It has done wonders for me! I can verify all its statements thus far.”
She stated that she believed some parts of what was said and thought it would help out at that time. She was asked if she still believed the basic philosophy of the Rosicrucians and answered: “Yes, sir, and the reason I did was because he tried everything else. I helped him. He didn‘t really try. It was my longing to help him that caused me to seek in part for this help.” She was asked if she had not testified before the judge in the trial of the case that her dead son had spoken to her. The answer was: “I said there was a voice that said what I heard because no one else was in the room. It seemed to me it came from somewhere near there.” “Q. You told your husband your dead boy had spoken to you? A. I presume I did. Q. You testified to that before Judge Lyons? A. Yes, sir.” She said that she did not believe that one could communicate with de-
Plaintiff offered in evidence a number of letters written by defendant to her son with a view of showing that she improperly referred to deaths and gruesome details that would shock the boy and interfere with his feelings toward her and cause him to lose respect for his father. One of them was written before the divorce and the others afterwards. The first one written January 15, 1939, before the divorce, is an extended letter upon many subjects. Reference is made to the death of the mother of Mrs. Jenkins, defendant‘s sister-in-law, and the circumstances under which it occurred; that the deceased had said that she loved him, and wished she could see him, and had a Christmas present for him; she expressed her disappointment at not seeing her son at Christmas, and referred to his father going away and leaving her nights. “After jeering me in his letter Arthur talked mostly about his rights. I meant no offense by anything I said.” She commends her son for being a brave little soldier, and after referring again to the boy‘s father going away and leaving her with two babes in arms and his opposition to her said: “Tell him to recall his experiences with women in the past. Also I request that he be informed correctly that he blame not my people but himself for any attitude which he has caused me to take during our years together and since. I have never confided in them concerning his unfaithfulness to me (nor have I to this day opened my lips) except as actions reveal in what they may have seen in him and in my own reaction to recent events. I have been ashamed for them or anyone to know and shall await its disclosure by his own act of calling a trial (when friends who know shall rally to the defense of one who has sacrificed much!!!).” Other letters addressed to the boy in endearing terms and about many subjects also refer to deaths of different people. In one of the letters dated April 16, 1941, she wrote: “I am counting on having you for my vacation this summer-and am not taking ‘no’ for an answer from your would-be benefactors. So prepare yourself thus.”
Mr. and Mrs. Claude Jenkins, the brother and sister-in-law of defendant, testified to their desire to have the defendant and her boy live with them under the arrangement outlined by the defendant; that they were greatly attached to the boy who had lived near them while he was with his mother before the divorce. They described the accommodations they could afford and the assistance they would gladly render. Their testimony is to the effect that when the defendant left her husband and came to live on the farm in another house very near to them, with the boy and with the family of her mother and father, she was a nervous wreck and in great distress over the death of her child and greatly grieved over what had occurred and her situation; that since the divorce she has recovered her poise; that there is nothing the matter with her mind, and she is now normal in all respects; that her condition improved 100%; that she attends church regularly and is not a fanatic.
Three ladies of long acquaintance with the defendant, and the minister of the church which she attends all testified in highest terms of her intellectual qualities, exemplary conduct and splendid character. Some of these witnesses also described the Jenkins home as modern, one of the finest in the community and to the fine Christian character of the owners. Three witnesses testified that sometime in February, 1941, plaintiff was seen in St. Joseph in a drunken condition.
Plaintiff testified that it is not his custom to get drunk; that during the past two years he had not been what he would call drunk, and there had never been a time when he did not know what he was doing or could not carry what he swallowed; that he takes a drink when he feels like it; that he was in St. Joseph in February. “Q. Was there any time you were in St. Joe you didn‘t know what you were doing? A. I don‘t think so. Q. How did you go up there? A.
On cross examination he said that defendant was a good, moral woman “so far as I know” and he had nothing against her from a moral standpoint; that he contributed nothing to the support of his boy or to that of his parents; he claimed that the boy “is self-sustaining;” that he lives in the same home with him. He admitted that he had previously testified in his deposition taken one week before the trial that he had made no arrangements for the education of the boy; that he never wanted the boy to visit his mother; that he never heard him express any affection for her; that he has had the boy since July, 1938. On further cross examination he stated that he had not saved any money, had no bank account, and had made no financial arrangements for the boy and does not contribute to his support. Upon examination by the court he repeated that he did not want his son to visit his mother since the divorce and thought it was to the child‘s detriment to be with her “because she is a psychopathic case; her conversations are unwholesome and morbid and detrimental to the child;” that during the last three or four years of his married life she was “very decidedly a mental case.”
Further testimony shows that at the time plaintiff took the boy in 1938, he had been ill and operated on for the removal of his tonsils. Plaintiff claimed he didn‘t need it; that at time the boy came down to visit him. “Q. And you kept him? A. You bet I did. Q. You haven‘t wanted him to be with his mother since? A. That is true. Q. You don‘t want him to now? A. That is true.”
The testimony of Mr. and Mrs. Mothershead, the grandparents, is to the effect that they have a good home on 147 acres of land which they own; plaintiff is their only son; they are anxious to keep the boy; they think they can furnish him a better home than his mother can furnish; that the boy won‘t talk about his mother and has not
On cross examination the grandfather stated that the only home that his son provided for his wife from 1932 to 1937 was at his house; that Arthur is his only son and lives at his home. “Q. You want to retain custody of this boy, and bring him up in the same environment in which your son Arthur lives in, don‘t you? A. I don‘t see how I could do otherwise without running my son away, and I won‘t run my boy away. Q. . . . He will be under the influence of your son? A. That is the condition.” He stated he had no objection to the mother of the boy on moral grounds and admitted her present associates are good, moral people; “I haven‘t a thing on earth against her.”
The grandmother further testified that nothing had ever been said to the effect that the boy should not love his mother or should not visit her; that she had not discouraged defendant from coming there; that she had no affection whatever for the boy‘s mother at that time; that she never talked to the boy about his mother; that she had never heard him express any affection towards his mother; she had never told him that he ought to see his mother, but had told him he may see her if he wants to; she had never urged him to do that or to express any affection for her; that she did not want the mother to have custody of the child; he was happy and contented where he was; “we have a better home, he wants to stay with us.”
The court made further inquiry as to why witness thought the boy would be better off in her home than reared by his mother. “The Witness: He has lived in our home for the last ten years. He feels like it is his home. He loves it. The Court: Do you think any boy is being properly reared, and in a way that is best for him, when he grows up and has no affection for his mother? Do you think that is best for a boy? You are a mother. The Witness: I can‘t answer that. I don‘t know. . . . The Court: Do you believe there are any things or there is anything that would take the place of the respect of a boy for his mother? The Witness: When he can‘t have the love of his mother and a home both, which is he going to do?”
Several witnesses testified to the high moral and social standing of the grandparents and the comfort and convenience of their home. Two of them testified that the boy was now in better physical condition than when he returned to the home of the grandparents in 1938; that the boy appeared to be happy and contented.
The modification of a divorce decree with reference to the custody of a child because of changed conditions is a matter within the sound discretion of the trial court. [Westerman v. Westerman (Mo. App.), 153 S. W. (2d) 825.] The contention of appellant is that the evidence does not disclose any change of conditions that would warrant a modification of the previous decree; that the grounds of complaint were presented to the court at the time of the divorce trial, and, in effect, seeks application of the doctrine of res judicata. Upon the whole evidence such contention is not tenable. There was substantial proof of various matters that would justify a finding by the trial court of a material change in conditions as they existed at the time of the original decree affecting the welfare of the child and the rights of his mother. In the first place, it could reasonably have been found that the custodians of the child had violated the terms of the order upon which custody was awarded; that they were hostile to defendant in the exercise of her right to visit the child and have him visit her according to her privileges granted in the order; that they have no affection for her or proper regard for her rights; that they have aided and abetted in an estrangement between mother and child; that they have improperly permitted the child, for all intents and purposes, to be under the influence and control of plaintiff, who lives in the same home; that he is an incompetent person and has no right to exercise such privilege in a manner adverse to the interest and rights of defendant; that defendant has been deprived of the association with her son to which she was entitled, all of which had an adverse effect upon the natural love and affection of the child for his mother. Further, the court was justified in finding, if not required to do so, a marked difference and improvement in the physical and mental condition of defendant and her financial circumstances since the decree of divorce, and that she is in all respects a fit and competent person to exercise the legal right of the custody of her own child.
While plaintiff appeared in this case as the opposing party, he made no claim for custody in his own behalf. As the matter was presented to the court it was a contest between a parent and the grandparents over the legal right to custody of the parent‘s child, and the effect that a change of custody might have upon the welfare of the child.
As between the parents of a child the right to custody and control is equal, and in a contest between them over such custody the statute.
The interest of defendant in Rosicrucianism at a time when she was attempting to reform her husband, and when in the midst of almost hopeless distress occasioned by his dereliction and the visitation of death, should not, in view of the evidence of her present normal health and wholesome mental attitude, militate against her rights. Nor is the evidence sufficient to require a finding that she has forfeited her privilege of custody by the letters written to her son. The circumstances and provocation under which the letters were written and the maternal feeling of the author should be remembered. Like unknown depths of the sea the depth of the love of a good mother for her offspring has not been measured, and when she has reason to believe that the natural affection of her child is being blighted by improper influences her reactions may be forgiven even though they might appear to be immoderate and ill-advised when not provoked. There is no indication that the court failed to give due consideration to all the evidence.
The trial judge had the opportunity to observe the demeanor of all the witnesses and weigh their words as spoken. Upon the whole record in this case it is not possible to find that he failed to exercise a sound discretion and abused discretion in changing the custody of the child to that of the mother. “The finding of the trial judge on
The conclusion is that the order of the trial court modifying the decree respecting custody of defendant‘s minor son should be affirmed. The Commissioner so recommends. Sperry, C., concurs.
PER CURIAM: - The foregoing opinion of BOYER, C., is adopted as the opinion of the court. The judgment is affirmed. All concur.
BOYER, C.