Brenneman v. Hildebrandt , 137 Mo. App. 82 ( 1909 )

ELLISON, J.

— This proceeding involves the custody of the children of the parties to the controversy. They were awarded to the defendant, their mother, and plaintiff appealed.

It appears that the parties were married in 1897. That the defendant had at that time $3,000 in money, with which plaintiff purchased land in Linn county but took the deed in his own name. After the birth of three girl children defendant began a suit for divorce on account of plaintiff’s alleged infidelity. She also brought an action to recover her money. Before either came to trial matters were partially arranged between them so that plaintiff secured to defendant her money and she dismissed the suit for divorce though they did not again live together. It seems that the two older children were with plaintiff while the youngest was with defendant. In September, 1904, plaintiff in turn began suit for divorce on the ground of abandonment by defendant, she having gone to live with her brother in Illinois. He obtained a decree on December 13, 1904, on an order of publication, and was awarded the care and custody of the two minor children with him, Nora and Merle. Plaintiff was then, within two weeks after his divorce, married to a young woman living at his house, who was pregnant when he brought the divorce suit and gave birth to a child within five months after the marriage.

Afterwards, in April, 1906, defendant filed her motion in the cause to modify the decree so as to give to her the care and custody of Nora and Merle. The motion was heard by the court in May and taken under advisement. At the December term the court ordered the case “to he continued to pass from the docket, to be reinstated for further proceedings should the circumstances of the parties change and the interest of the parties require it.”

Afterwards the defendant was married to a reputable man, of comfortable means, in Illinois. She still wanted her children and her husband joined her in her effort to get them. She filed what is called a supplemental motion for their custody. Plaintiff was notified and a further hearing had. It was shown that plaintiff had moved to Texas; that his second wife had died; that he had returned to Missouri and was living with his father. It was further shown that defendant was happily situated for the care and custody of the children; that she was a good woman, with every facility for rearing and educating the girls. The trial court found it would be for their best interest to be placed with their mother and ordered that she take them into her care and custody for one year upon condition that she give proper bond in the sum of $1,000, conditioned that she would return them within the jurisdiction of the court' at any time when the court should direct. Further provision was made for' plaintiff visiting the children, etc. Plaintiff appealed from the order.

As to the jurisdiction of the court to afterwards entertain a motion for a change of custody of children from that provided in the decree of divorce, there can be no doubt, since the statute so declares. But it must be done on notice and a hearing. We recently considered such character of case (State ex rel. v. Ramey, 134 Mo. App. 722, 115 S. W. 458), in which some of the authorities contained in briefs of counsel in this case are cited. As notice was given in this case and a hearing had, it only remains to ascertain if the trial court was right in changing the custody of Nora and Merle from plaintiff to defendant. We have examined the record and find the court abundantly justified. The evidence and the record disclose that Judge Butler proceeded with the utmost care and consideration.

In cases of this nature the best interest of the children is the primary object to attain. All else being equal, the father’s rights are superior, but the conditions surrounding the father here are by no means equal to those of the mother. He is not so situated as to afford the children a home and they are with his parents; and other considerations disclosed in the record make it particularly preferable to give them to the custody of the mother.

We need not go into the question raised by plaintiff to the effect that so long as the condition and situation of the parties remain the same as they were when the decree of divorce was rendered, no change can be made in the disposition of the children which was made in the decree. For the record shows a situation altogether different at the time of hearing the motion for the change of custody. The fact that each of the parties have married since then, was one very important change.

We do not regard the manner or time of filing or bringing forward the present motion as irregular. No ruling was made on the first motion and if there had been it would not have operated against the right to another. Nor do we see that any error was committed in the admission of evidence.

The original motion was continued. The practical effect was a continuance that the court might be further advised and in this character of case it was in the discretion of the court, especially since the parties acquiesced, to order the continuance. When subsequently taken, up and further evidence heard, it was not improper to consider the whole evidence in making the order. The entire argument for plaintiff is too much along a line which might be proper to follow in an ordinary trial at law between litigants contending over rights of property. But cases like this are of extraordinary character and have been specially provided for by the statute. It was the duty of the court, within reasonable bounds, to take every necessary step towards ascertaining the situation, condition and surroundings of the parties, to the end that the welfare of the children might be protected.

Authorities on the subject of the right to the motion and of theyrespective rights of parents will be found iu the briefs of counsel. The general rules of law on the subject are practically undisputed, and we have concluded that the judgment should be affirmed.

All concur.