Carr v. Carr

480 S.W.2d 317, 1972 Mo. App. LEXIS 833
Missouri Court of Appeals·Decided May 1, 1972·No. No. 9157·Published·Cited by 2 cases

Opinion

HOGAN, Judge.

This is an action to modify the child custody provisions of a decree of divorce. The parties, who were divorced in July 1966, are the parents of a son, Gregory, who was nearly eight years of age at trial time. The decree awarded care and custody of the child to the defendant, who has not remarried. Plaintiff married a second time in December 1967, has since become the father of two more children and is, or was, expecting a third. Alleging that the defendant had improperly associated and cohabited with men to whom she was not married in Gregory’s presence, and had unreasonably refused him the right to associate with his child, plaintiff brought this action to modify the original decree, praying alternatively that the court award him sole custody of the child or award him “increased temporary custody rights for specified times.” After hearing evidence, the trial court refused to award plaintiff the major custody of his son, but entered an order awarding plaintiff (1) custody of the child on alternate weekends from 5:00 P. M. on Friday to 6:00 P.M. on Sunday, (2) custody for four days during Christmas holidays on alternate years beginning in 1971, and custody for two days during the Thanksgiving holidays on alternate years beginning in 1972, and (3) custody during the summer school vacation for two weeks in July and two weeks in August. Defendant was also allowed an attorney’s fee in the amount of $600. The plaintiff appeals, maintaining: (1) that the evidence shows defendant to be unfit to have custody of her child, and (2) that the court erred in allowing defendant an attorney’s fee because there was no evidence that she was without means to employ an attorney to defend against the motion.

The controversy concerning the defendant’s fitness as custodian of her son, at least in this court, centers around her association with her employer, Ronald Cren-shaw. Defendant is employed as secretary and treasurer of H & R Food Distributors ; Mr. Crenshaw is the manager. Mr. Crenshaw was married but separated from his wife during the time here involved; at trial time, he had a divorce action pending against him. Defendant began working for H & R and Mr. Crenshaw in July 1968 as an office manager.

Most of the evidence touching the defendant’s association with her employer came from the defendant herself, who was called as a witness by the plaintiff. In substance, her testimony was that she left for work about 7:30 in the morning and worked until 4:30 P.M. at H & R. On a number of occasions — defendant “would say three or four, very few” — Mr. Cren-shaw had eaten his evening meal at defendant’s home. This was usually “[a]long [about] six or six-thirty,” and Mr. Crenshaw would leave shortly thereafter, except on one occasion when he fell asleep watching television. On this occasion, defendant and her son went to bed early; defendant awoke about 12:30 P.M. or 1:00 A.M., found Crenshaw asleep on the couch, “shook him and he got up and went home or went somewhere.”

The defendant had gone on trips with Mr. Crenshaw, specifically to Springfield and Willow Springs, Missouri. Defendant took her son. She and Crenshaw spent the night in adjoining rooms, and defendant slept with her son. Defendant and Cren-[319] shaw shared the expense of the trips, but defendant paid for her own room. Mr. Crenshaw purchased meals for the three on these trips. Defendant also spent some time in Mr. Crenshaw’s company on Labor Day, 1970, at Kentucky Lake at a vacation resort or motel of some kind known as the Ken-Bar Motel. Defendant knew that Mr. Crenshaw was to be at Kentucky Lake over the holiday, but denied that her meeting with Mr. Crenshaw there was prearranged. Defendant stayed from Friday until Monday; Mr. Crenshaw left on Sunday. Defendant was sure she was in Mr. Crenshaw’s room, but denied occupying the same room with Mr. Crenshaw. Gregory was along, and defendant slept with Gregory “all three nights.”

There were times when defendant had been out to dinner with Mr. Crenshaw without Gregory. On one occasion, the defendant had driven Mr. Crenshaw to Wickliffe, Kentucky, during business hours, on business. Defendant would sometimes have a drink when Mr. Cren-shaw took her out to dinner. Mr. Cren-shaw was also called as a witness by the plaintiff and generally corroborated defendant’s testimony concerning their association. The child, Gregory, was questioned in chambers, and was asked if he remembered the trip to Kentucky Lake. He did, and stated that he slept in one of the two rooms “with my mama.” On the trip to Willow Springs, Gregory said, he and defendant slept in the same room. Both went to bed at the same time. This is not all of the evidence concerning defendant’s association with Crenshaw, but it is sufficient to show the nature and tenor of the case with which we are dealing.

As stated, plaintiff argues in this court that the defendant, “. . .by her deplorable conduct . . . has disqualified her [self] to have custody of the little boy.” He likens this case to Derringer v. Derringer, Mo.App., 377 S.W.2d 513, Yount v. Yount, Mo.App., 366 S.W.2d 744, and others in which one or another parent has been found to be an unfit custodian of his child, and argues that Gregory should be placed in his father’s custody. We cannot agree.

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Carr v. Carr, 480 S.W.2d 317, 1972 Mo. App. LEXIS 833 (Mo. Ct. App. 1972).

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