J. v. R.

446 S.W.2d 425, 1969 Mo. App. LEXIS 558
CourtMissouri Court of Appeals
DecidedSeptember 25, 1969
DocketNo. 8854
StatusPublished
Cited by2 cases

This text of 446 S.W.2d 425 (J. v. R.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
J. v. R., 446 S.W.2d 425, 1969 Mo. App. LEXIS 558 (Mo. Ct. App. 1969).

Opinion

HOGAN, Presiding Judge.

This is an action to modify the custody provisions of a divorce decree. At issue is the custody of the parties’ son, a boy of seven at trial time. The trial court has awarded general custody to J., the child’s father, subject to the right of R., the mother, to have custody on alternate Saturdays and for a period of one month during the summer. The defendant mother has appealed.

Plaintiff and defendant were divorced on April 12, 1963. Their son was then almost three. The decree was granted to the defendant and she was awarded custody of the child, plaintiff being given the right to have custody of his son for a period of two months during the summer and the right to have the child in his home one day each week. After the divorce, both parties worked, the father at his trade as a barber, the mother as the operator of a small grocery store. During the time the child was in the defendant’s custody, his day-to-day care and supervision was left to the maternal grandparents.

This motion to modify was filed in December 1967. The substance of the motion was that the defendant, though single and unmarried, was pregnant with child; that the pregnancy was the result of one or another of the “illicit and clandestine love affairs” which defendant had been “carrying on” with men, and that defendant’s licentious behavior was having a deleterious effect on the welfare of her child. The defendant filed an answer and counter motion, and the plaintiff filed a timely reply. On January 30, 1968, the case came before the court for hearing. At that time the defendant filed a verified application for a continuance, attaching and incorporating therein a statement from a physician that she was approximately seven and one-half months pregnant, “with estimated date of confinement March 19, 1968.” The physician stated that he had advised against a court appearance for defendant before April 1, 1968. Upon plaintiff’s representation that he believed defendant might try to remove the child from the jurisdiction, the trial court heard some evidence and entered a temporary order transferring custody of the child to the plaintiff and his present wife, but deferred a hearing on the merits.

The case was finally heard on May 17, 1968. Before the hearing began, defend[427]*427ant, by her counsel, admitted of record that she was single and unmarried, and that she had conceived and delivered a child out of wedlock. It was further admitted that defendant’s illegitimate child was in her custody, and the evidence shows that the second child was living and being cared for in the home of the maternal grandparents.

A number of matters were developed on trial, but the force of the plaintiff’s evidence was that defendant was an unsuitable custodian of her child because of her unchaste and licentious living, which had eventually resulted in the birth of an illegitimate child. A number of specific episodes were recounted by various witnesses. Mrs. S., who operated a motel in the community in which the parties lived, testified that about two years earlier she had had a male guest, known to her to be married, with whom R. had regularly associated. Late in the afternoon, the guest would return from work, defendant would join him, and they would drive away together. On one occasion when the married guest was not in, defendant asked Mrs. S. to give him a message. Mrs. S. remonstrated with the defendant, stating that the male guest “ * * * [had] a wife, he is married.” Defendant answered, “Yes, but they are not living together.” Mrs. S. asked the guest to have defendant stay away from the motel, and later the male guest’s “ * * * wife came and got him when the work [he was doing locally] was over.”

A Mrs. E., who was once employed at the same factory as defendant, testified that on one Friday evening in a nearby town, R. had stopped to pick up a different man, known to the witness to be married, and the two had driven off together. Another witness, a Mr. T., recalled having seen R. together with yet another married man in an automobile in a remote and secluded area late in the afternoon. The two “drove off” as the witness approached, but he recognized both of them. Other episodes, less persuasive but of the same general nature, were testified to.

The defendant vigorously denied any improper conduct. Concerning the male guest whom she had met at Mrs. S.’s motel, defendant testified that she had believed him to be unmarried; he had told defendant that he “ * * * was divorced and [had] showed me the papers proving it.” Defendant denied her association with the man referred to by Mrs. E. and denied that she had ever met the man Mr. T. said he had seen her with. As we have said, other matters were developed, but it is unnecessary for our purposes to recite all the evidence in detail.

Relying on the well-established rule that a custodial order made in connection with a decree of divorce can be modified only upon proof of a change of conditions showing that a modification is in the best interest of the child, State ex rel. Shoemaker v. Hall, Mo., 257 S.W. 1047, 1053 [7]; P_ D_ v. C_ S_, Mo.App., 394 S.W.2d 437, 439 [1], the defendant maintains that there was no showing of a change of conditions sufficient to warrant a modification of the original order. The defendant argues that the only thing which was really proved was that she became the mother of an illegitimate child; otherwise, she says, no fact or circumstance has been shown which would indicate that she is an unfit custodian of her child. In this connection, the defendant calls our attention to a number of cases which hold that neither past misconduct nor isolated moral transgressions necessarily indicate that a parent is an unfit custodian of his or her child, e. g., Moore v. Moore, Mo.App., 429 S.W.2d 794, 797 [5], We agree that while the moral standards of the respective parents are always an appropriate subject for consideration in a child custody case, M_L-v. M_ R_, Mo.App., 407 S. W.2d 600, 602 [1], the reason for inquiring into the morals of the parents is to determine how the parent’s character, conduct, surroundings and outlook on life will affect the child, and thus occasionally the courts have said that a “bad” person may never[428]*428theless be a “good” parent. Moore v. Moore, supra, 429 S.W.2d at 797 [5]; I_v. B_, Mo.App., 305 S.W.2d 713, 718 [2],

Conceding, however, that isolated moral transgressions do not necessarily make a parent unfit, and that we do not sit in imperfect judgment of the litigants with a view to punishing them for their past transgressions, we cannot agree that the evidence is insufficient to warrant a change of custody in this instance. Though it is often done in these child custody cases, we believe it would serve no useful purpose in this instance to restate all the testimony in detail and consider all the inferences which could reasonably be drawn therefrom. It is sufficient to say that the trial court could reasonably have found that, over a period of several years, the defendant had dates, or “ran around,” with men who were already married and could have no legitimate interest in her; that her neighbors in the community found her conduct improper and sometimes offensive, and that as a result of her improper association with these men she conceived and bore a child out of wedlock. This, in our view, is sufficient to show that the defendant was an unfit custodian of her child.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Moreno v. Juvenile Officer
647 S.W.2d 852 (Missouri Court of Appeals, 1983)
D_ M_ T v. D_ V_ T
483 S.W.2d 84 (Missouri Court of Appeals, 1972)

Cite This Page — Counsel Stack

Bluebook (online)
446 S.W.2d 425, 1969 Mo. App. LEXIS 558, Counsel Stack Legal Research, https://law.counselstack.com/opinion/j-v-r-moctapp-1969.