Nations v. Nations , 201 Mo. App. 639 ( 1919 )

BECKER, J.

— This is an appeal from a decree of the circuit court of St. Francois county, modifying a former decree of that court concerning the custody of three minor children of R. H. Nations and Mattie B. Nations.

In July, 1917, a decree of divorce was granted R. H. Nations against his then wife, Mattie B. Nations, on a petition based upon an allegation that the wife had treated him with such indignities as to render his condition in life intolerable. Under the provisions of said decree the custody of the three minor children born of the marriage was to remain “in the mutual custody of plaintiff and defendant,” with certain provisions as to their support and maintenance when in the custody of the mother.

In September, 1918, Nations married a second time, whereupon" a few weeks later the mother of the children filed a motion to modify the former decree concerning the custody of the children so as to grant her the care and custody thereof, together with a suitable allowance for their maintenance and education.

Upon the filing of said motion, and before any notice thereof or summons of the court thereunder had been served upon Nations, the court ordered the said motion referred to “Hon. R. C. Tucker, Referee of the Juvenile Division of the said circuit court, to hear and consider the same and the evidence offered in support thereof, and to report his findings and recommendations to the court.”

In due course the parties appeared before the Referee, and prior to the introduction of any testimony Nations objected generally to the introduction of any evidence on the said motion before the Referee which objection was overruled.

The Referee then heard the testimony and thereafter filed his report in which he made a finding of facts and recommended that the children be taken from their father’s custody and their custody granted the mother during the school months of the year, with the right of the father to have the children from the first day of June to the first day of September, and that the father should pay $15 per month for each child for the support of the children when they were in the mother’s custody. The report of the Referee, by an order of the said circuit court, was sustained in all respects on the very day upon which it was filed. Nations filed timely motions for a hew trial and in arrest of judg-ement, both of which were overruled, resulting in this appeal.

I.

A motion or petition to alter or modify a decree of divorce concerning the custody of minor children is a continuation of the original suit. “ Relief of this kind is granted exclusively for circumstances which arise afterwards, showing that the welfare of the child demands a new custodian.” [Cole v. Cole, 89 Mo. App. 228, and cases cited.] And ever since the early case of Mangels v. Mangels, 6 Mo. App. 481, in a well-considered opinion in Avhich it was ruled that a divorce proceeding cannot be tried by a Referee, that question has been considered foreclosed. It follows that the action of the trial judge in submitting the motion to modify the decree with reference to the custody of children to a Referee was error.

The judgment is reversed and the cause remanded.

Reynolds, P. J., and Allen, J., concur.