Sge v. Rlj

527 S.W.2d 698, 1975 Mo. App. LEXIS 1773
CourtMissouri Court of Appeals
DecidedSeptember 2, 1975
DocketKCD 27516
StatusPublished

This text of 527 S.W.2d 698 (Sge v. Rlj) 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
Sge v. Rlj, 527 S.W.2d 698, 1975 Mo. App. LEXIS 1773 (Mo. Ct. App. 1975).

Opinion

527 S.W.2d 698 (1975)

S. G. E., Appellant,
v.
R. L. J., Respondent.

No. KCD 27516.

Missouri Court of Appeals, Kansas City District.

September 2, 1975.

*699 Philip Eveloff, Muster & Eveloff, St. Joseph, for appellant.

James H. Counts, Morton, Reed & Counts, St. Joseph, and Robert A. Schroeder, Kansas City, for respondent.

Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.

PER CURIAM:

Plaintiff obtained a divorce from defendant, her then husband, on September 21, 1973. Custody of the infant child of the parties was awarded to defendant. Two months thereafter, plaintiff filed a motion to modify the decree so as to change custody to her. From a denial of her motion, plaintiff takes this appeal.

In the latter part of 1972, both parties who were then high school students, started dating. Defendant called for plaintiff at her home on various occasions but was not welcome to the parents. In February of *700 1973, defendant accompanied plaintiff to her home and announced to the parents that plaintiff was pregnant. Thereupon a stormy session occurred. Plaintiff's parents made it abundantly apparent that they opposed marriage, and they suggested abortion.

Defendant utterly opposed the idea of abortion and persuaded plaintiff to marry him and carry the child to term. When plaintiff's parents discovered that the young couple were going to a small town in Kansas to get married, plaintiff's father with other members of the family appeared and made strenuous efforts to stop the marriage. The marriage did, nevertheless, take place.

For a short time after the marriage the parties lived together in an apartment in St. Joseph. Defendant then left for Colorado to take a job while plaintiff returned to her parents' home to reenter high school to complete her senior year. After graduating, plaintiff left to join defendant in Colorado.

By August, plaintiff had reached a crisis. The apartment occupied by the couple in Colorado was very meagerly furnished and the couple did not have the necessities for the baby about to be born. Plaintiff then called her parents who came to Colorado and took her with them to the parental home in St. Joseph.

Shortly after returning to St. Joseph, plaintiff filed petition for divorce. At the same time, apparently at the instance of her parents, she started discussion with a social work agency looking toward placing the anticipated child for adoption.

Plaintiff gave birth to a baby girl on September 10, 1973. When defendant came to the hospital, plaintiff requested defendant's consent to the placing of the child for adoption. In that connection she told him that "she didn't think her parents would accept the baby at their home." Defendant responded that he would not consent to an adoption and that if plaintiff would not take the baby, then he would. The parties then agreed that upon the divorce, custody of the child would be given to defendant.

Eleven days after the birth of the child the divorce case was heard. Plaintiff testified that she did not feel in a position economically, emotionally or physically to have custody of the child, and she further stated that she was willing for the court to award custody to defendant. The decree entered did award custody to defendant and further ordered that defendant keep the child in the home of his parents and that he pay them $100 per month for the child's support and maintenance.

On November 21, 1973, plaintiff filed her motion to change custody. She testified herself and produced the testimony of her parents and others to show that at the time of the birth and continuing through the date of the divorce, plaintiff had been emotionally upset. That evidence was to the effect that she had certain physical problems following the birth, that she was solemn, depressed and given to crying spells, that she was uncommunicative, that she felt confused, that she saw and heard everything but did not comprehend. The testimony on her behalf was further to the effect that she had by the time of the hearing on the motion returned to her old self and was now of the feeling that the child was the paramount thing in her life. Her parents both testified on her behalf in seeking the change in custody and both testified that the child would be fully welcome in their home as part of their family.

Plaintiff also offered some evidence to show that coarse language and vulgar discussions of sexual subjects took place as a common routine in the home of defendant's parents. Plaintiff also attempted to introduce into evidence records of a social work agency which indicated that defendant was the father of an illegitimate child which had been born April 24, 1973, just a few months prior to the birth of the child to plaintiff. These records were ruled inadmissible on the grounds of hearsay.

*701 The decree of the trial court denied the motion to modify upon a finding that "there was no substantial change in circumstances from the time of the rendering of the original Decree of Divorce until this date." The decree further denied plaintiff's application for the allowance of attorney's fees in connection with the motion to modify.

Following that ruling, plaintiff filed a further motion "to vacate, re-open, take additional testimony, correct, amend, or modify judgment, or, alternatively, that the court grant plaintiff a new trial." This motion alleged as grounds that plaintiff had additional evidence to show that defendant had fathered the illegitimate child born April 24, 1973; that defendant and other relatives of his had committed various thefts; that defendant, his mother and aunt drank intoxicants frequently and heavily; that obscene language and discussions of sexual activities normally and frequently occurred in defendant's home; that one of defendant's witnesses had committed perjury at defendant's request; and that plaintiff had been denied visitation rights. Plaintiff requested an evidentiary hearing on this post-trial motion. The court denied that request but nevertheless permitted plaintiff to offer evidence "to make a record * * * so that any court reviewing this record can itself weigh the evidence introduced."

Pursuant to that permission, plaintiff did offer extensive additional evidence, particularly the testimony of a 16 year-old girl who testified she had been impregnated by defendant and that she had borne a baby boy fathered by defendant in April, 1973. This was the child to which reference was made in the social agency records rejected as evidence at the original hearing. Evidence was also offered with respect to the other allegations of the motion for new trial. At the conclusion of the additional testimony, the court formally overruled the motion for new trial.

Plaintiff's principal thrust on this appeal is a challenge to the refusal of the trial court to order a change of custody. She argues in support that: a) since the original award of custody was by consent and not pursuant to any contest, the motion to modify was realistically in the nature of an original custody award and therefore should not be dependent upon any showing of change of conditions citing Brand v. Brand, 441 S.W.2d 750

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S. G. E. v. R. L. J.
527 S.W.2d 698 (Missouri Court of Appeals, 1975)

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527 S.W.2d 698, 1975 Mo. App. LEXIS 1773, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sge-v-rlj-moctapp-1975.