Hayes v. Hayes

247 S.W.2d 551, 241 Mo. App. 962, 1952 Mo. App. LEXIS 219

• Court: Missouri Court of Appeals
• Decided: April 2, 1952
• Status: Published

Opinions

BLAIR, J.

This appeal is from an order of the Circuit Court of Greene County, Missouri, on a motion filed by appellant for modification of the decree in a divorce case tried by the same trial judge.

A decree of divorce was granted to respondent by Judge Warren L. White on May 19, 1949, with certain provisions as to care and custody of two minor children, and this proceeding was for the modification of the decree in the divorce case or a previous modification thereof. This case does not involve any question as to the validity of the decree of divorce itself.

To avoid confusion, we will hereafter refer to the parties as they were designated in the trial court.

On July 20, 1951, the trial court overruled defendant’s motion for a new trial and she was granted an appeal to this Court.

On May 7, 1951, defendant filed an application for change of venue from Judge White, as follows:

“1. Defendant states that on or about the 20th day of March, 1951, she filed a motion in the Circuit Court of Greene County, Missouri, Division Two thereof, the Honorable Warren L. White, Judge, the general nature and object of said motion being to modify a decree of divorce in favor of plaintiff and against defendant.

“2. Defendant further states that she has just cause to believe, and does believe, that she cannot have a fair and impartial trial of said cause before the said Judge Warren L. White for the reason that said Judge is prejudiced against defendant and that the other party has an undue influence over the mind of said Judge.

“3. Defendant states that she became possessed of her knowledge and information of the existence of the causes herein alleged as grounds for change of venue since filing her motion to modify decree and more specifically on the first day of May, 1951.

“4. Defendant further states that she has given notice of this Petition for Change of Venue to Wayne Walker, attorney for plaintiff, the same having been served on the 7th day of May, 1951.

“WHEREFORE, defendant prays that she be granted a change of venue in accordance with the statutes in such case made provided.

“SMITH AND WILLIAMS By /S/ Leland C. Russell

Attorneys for Defendant.

“STATE OF MISSOURI ] t ss COUNTY OF GREENE

“Now on this 5th day of May, 1951, before me personally appeared Lois V. Young (formerly Lois V. Hayes, and since remarried to Thomas D. Young) and first being duly sworn upon her oath states that the facts set forth in the above petition are true, and that defendant has just cause to believe that she cannot have a fair trial under said Judge on account of the causes alleged. ’ ’

On May 14, 1951, Judge White overruled defendant’s motion for change of venue. Defendant objected to such ruling and saved her exception thereto. As the trial court’s ruling on that application for change of venue is one of the errors alleged to have been committed by the trial court, we will first consider that question.

In his brief plaintiff denied the bias and prejudice of Judge White, and said:

“That this is an action wherein defendant seeks to modify an existing decree of divorce in regard to the custody of minor children; that a change of venue'will not lie in such ease for the reason that there is no statutory provision permitting such a change of venue; that this action is not an original suit and is a continuation and ancillary proceeding to the original suit and that a change of venue will not, therefore, lie.”

We must first determine whether or not the trial court properly overruled defendant’s motion for change of venue in this proceeding. If the trial court erred in that respect we will not need to consider other alleged errors..

Defendant cites Section 508.090, R. S. Mo. 1949. That section plainly authorizes a change of venue in any civil suit on any one of the four grounds named. Plaintiff contends that defendant’s right to a change of venue is limited to an original suit.

In the argument before this Court for the first time, defendant called our attention to the case of State ex rel. McAllister v. Slate, Judge, 214 S. W. 85. This case was written by Judge Faris, of the Missouri Supreme Court en Bane, and is controlling in this case, if it applies to the jurisdiction of Judge White on the question of a change of venue in an ancillary proceeding. We will referió that ease as the “Slate case.” That was an application for a change of venue by the State in a criminal proceeding. A careful reading of the opinion in that case reveals that trial had not begun before Judge Slate, when he refused the motion of the State for a change of venue. That case shows that a Commissioner of the Supreme Court had found and reported to the Court that bias and prejudice against the State actually existed in that case in the mind of Judge Slate.

The main question in that case was whether or not the State could take a change of venue. That case cannot'control the action of the trial judge in this case, when no such application was made in the trial of the divorce case itself. We cannot regard that case as convicting Judge White of error in refusing to grant a change of venue, or change of judge, in a subsequent proceeding in the same case.

In her brief defendant cites State ex rel. Kansas City Public Service Company v. Waltner, 350 Mo. 1021, 169 S. W. (2d) 697, That ease was decided in March, 1943, by Division Two of the Supreme Court. We have read and studied the case and do not find that it decided the right of a litigant to a change of venue, or change of judge, in a collateral proceeding; but only determined the power of the respective defendants in that case to sit in the cases originally assigned to them.

Defendant cites the case of Horning, et al. v. James et al. 269 S. W. 399. In that case Cox, P. J. of this Court, held that, after the reversal and remanding of a case, the case so sent back for another trial was like any other case originally before the trial court, and error was committed by the trial court in overruling an application for a change of venue after such reversal.

We are unable to see why defendant has cited the case of Wilton v. Wilton, 235 S. W. (2d) 418. We have examined that case carefully and it only involved the propriety of an order of the trial court in making a change in the care and custody of the children, without proof of a change in conditions from the time of the original order. No application for a change of venue was ever made in that ease. It will be referred to hereafter on the issue of changed conditions.

The St. Louis Court of Appeals, in an opinion by Judge Goode in Cole v. Cole, 89 Mo. App. 228, l.c. 233, held that a change of venue was not permissible in a proceeding to modify a divorce decree previously entered. Judge Goode was there construing Section 818, R. S. Mo. 1899. We have carefully compared that section with present Section 508.090 of the Missouri Statute for 1949, and the two sections are in identical language, except for the manner of numbering the paragraphs.

Later, the Supreme Court in Division Two, in an opinion by Judge Walker, in Robinson v. Robinson, 268 Mo. 703, 186 S. W. 1032, l. c. 1034, held that an application for a change of venue in a proceeding to modify a decree in a divorce case would not lie.

It is the ruling of our State Courts, and not what the courts of other states have held, which is binding on us. The rule in other states, even though apparently sound, interests, but does not control us. See 143 American Law Reports, 414.

In the first place, there must be a change of conditions to justify a change in the order in a divorce ease for the custody and care of the children, whose care and custody was provided for in the original decree. One of the cases cited by defendant so holds. Wilton v. Wilton, 235 S. W. (2d) 418, as above noted. See also Rone v. Rone, 20 S. W. (2d) 545; Abel v. Ingram, 24 S. W. (2d) 1048; 223 Mo. App. 1087, and Hess v. Hess, 113 S. W. (2d) 139, l. c. 142.

There is no testimony that such children were ill, poorly nourished or not sufficiently clothed. The oldest child was not making satisfactory progress intellectually at Bound Tree School, and both children were removed therefrom by plaintiff and placed in a parochial school. The evidence shows that both children did better scholastically after they went to such- parochial school.

It was contended by defendant that such children were being weaned away from her; their lack of friendliness toward defendant and her mother was quite noticeable, according to the testimony of defendant, but hardly met the standard of change of conditions.

Both plaintiff and defendant have remarried. The financial ability of plaintiff to provide for such children was seriously, and possibly successfully challenged. Plaintiff’s second wife appears to have been well able financially to help him care for and clothe such children. With plaintiff’s consent, she has furnished them with a good home near Springfield, and it is not shown that the children have suffered in any way therefrom.

There is evidence of a physical encounter, growing out of trouble by insistence of plaintiff’s wife that the youngest child, a girl, was ill and not in a position to see defendant and her mother. There is apparently some hard feeling at least between plaintiff’s present wife and defendant’s mother.

There had been a former suit for divorce in which neither plaintiff nor defendant therein was permitted to have a divorce decree. At any rate, plaintiff and defendant subsequently had made a property settlement and agreed that each should have the care and custody of the children for six months’'periods, with visitation privileges in the other party.

In the second divorce casé, which we will refer to as the original case, plaintiff was given a decree of divorce. Defendant did not appear therein at all, exept by counsel. Plaintiff did not produce in evidence in this proceeding the previous agreement he and defendant had made as to the care and custody of the children in each party for six months’ periods. Plaintiff testified that he did not offer in evidence such stipulation for the care and custody of the children, because he had become convinced that defendant was not entitled to such care and custody. If plaintiff is correct as to the conduct of defendant before her remarriage and her subsequent marriage, he was correct in his conclusions that defendant could not take the children to her home in St. Louis and keep them there for six months’ periods, and that she would Only turn the children over to her mother in Ava, Missouri.

The trial judge seems to have come to the conclusion that it was defendant’s mother, and not defendant herself, who was insisting on a change'in the order for the care and custody of the children. In the decree of divorce originally, the trial court provided, “that the care and custody o-f the two minor children, born of said marriage with Defendant, to-wit: “James Adams, ag'e six years, and Caroll Ann, age three and one-half years, be and the same is hereby awarded to the Plaintiff; that the Defendant have the right to visit the children at reasonable times and to take the said children for daytime visits with her at reasonable times not to interrupt school and after twelve hours notice to the Plaintiff. ’ ’

On July 20, 1951, Judge White made an order modifying the provision then in force, by ordering that defendant should be allowed to visit the children “at the home of the Plaintiff, Thomas E. Hayes, three hours on two days of each month and not to take the children away from Plaintiff’s home, provided that she go alone and give twenty-four hours’ notice of her intent to visit said children.”

It is very evident to us that Judge White considered that defendant’s mother was the real trouble maker in this case, when he provided that defendant should only see the children at plaintiff’s home and then alone. It is apparent that he did not even want defendant’s mother to see the children on the occasions provided for defendant to see them. Even if such provision showed bias and prejudice, defendant was not entitled to a change of venue in this proceeding under the Missouri cases cited.

Should conditions change and plaintiff’s provision for their welfare and education cause injury to such children, defendant can always seek a modification of Judge White’s provision for them.

While plaintiff was not shown to have financial means of his own for the support of such children, they are evidently getting such support from somewhere, possibly from plaintiff’s new wife, and the children were not shown to have suffered on that account.

Complaint is made because defendant’s motion for physical and mental examination of the children was overruled by the trial judge. We are unable to find any evidence, outside of such motion itself, that such children had suffered physically or mentally since the former decree. Defendant offered no evidence whatever that the children had suffered morally, mentally or physically by their care and custody in plaintiff.

The judgment of the trial court should be approved, and it is hereby affirmed.

It is so ordered.

Yandeventer, P. J., dissents in Separate Opinion; McDowell, J., concurs.