Wald v. Wald , 168 Mo. App. 377 ( 1912 )

NORTONI, J.

(after stating the facts). — -The statute provides there may be a review of any order or judgment touching the alimony and maintenance of the wife, and the care, custody and maintenance of the children, or any of them, as in other cases. [Sec. 2381, R. S. 1909.] There can be no doubt that, under this statute, the court granting the divorce retains jurisdiction as to the modification of the judgment or decree touching the maintenance of the wife and the custody of the children. These matters may be brought to the attention of the court by motion in the original cause, as here, at a subsequent term, for the proceeding is but a continuation of the original jurisdiction concerning the custody of the children. [See Cole v. Cole, 89 Mo. App. 228; Meyers v. Meyers, 91 Mo. App. 151.] But though defendant filed ‘ a proper motion in the case, setting forth the facts upon which the modification of the decree concerning the custody of the child was sought, the court refused him the right to introduce testimony in support thereof and denied the application upon a mere ore tenus objection thereto, as if it appeared on the facts stated in the motion no prima facie right to the relief prayed appeared. It would seem the court treated the oral objection to the introduction of evidence in support of the motion as a demurrer thereto, and by the judgment given declared plaintiff had a right to remove the child out of the jurisdiction of the court into a foreign State and into a new home amid other surroundings, notwithstanding the decree establishing defendant’s right to frequently visit his offspring and take her out on Saturdays and Sundays in St. Louis. Obviously this was error, for the decree of divorce established a right prima facie in defendant to visit the child and .take her out in St. Louis, and this is true though it appears the divqrce was granted for his fault. It is true that the motion for a modification of the decree sets forth no facts suggesting unfitness of plaintiff, the mother, as a proper person to retain custody of the little girl, but it does reveal that she was about to remove it from the jurisdiction of the court here and into a foreign State. Where the custody of children is awarded in divorce proceedings, as was done in the instant case, the child becomes the ward of the court, and the court thereby assumes a position of guardianship with respect to its person and future well-being. In this view, it is said to be against the policy of the law to permit the child to be removed into another jurisdiction and from within the province of the court first awarding the custody, unless the well-being and the future of the child would be better subserved thereby. [See Miner v. Miner, 11 Ill. 43, 51; Chase v. Chase, 70 Ill. App. 572; Campbell v. Campbell, 37 Wis. 206, 221, 222, 223; Jennings v. Jennings, 85 Mo. App. 290; Edwards v. Edwards, 84 Mo. App. 552.]

It appearing by the motion that the plaintiff, the mother, was about to remove the child from within the jurisdiction of the court, defendant was entitled to a hearing thereon and should have been permitted to show that the interests of the child would not be bettered by the removal.

Although no one can doubt that the policy of the law forbids the removal of the child from within the jurisdiction of which it is a ward, the best interests and the future welfare of the ward should in every instance be weighed in the balance and determine the final order of the court touching its custody. While it is important to retain the child within the jurisdiction of the court, to the end of exercising its guardianship and power in making future orders for the custody, care and maintenance, it appears that the controlling thought influencing prior decisions on the subject makes for the welfare of the child, and a considerable discretion is allowed on this score. In other words, unless it appears the interests of the child would be best subserved by the removal, she should be retained here within the power of the court. [Jennings v. Jennings, 85 Mo. App. 290; Campbell v. Campbell, 37 Wis. 206, 221.]

The judgment should be reversed and the cause remanded. It is so ordered.

Reynolds, P. J., and Caulfield, J., concur.