Opinion
No. 28508.
July 14, 1953.
APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS, FRANCIS E. WILLIAMS, J.
Claude W. McElwee, St. Louis, for appellant.
Frank P. Motherway, Edward J. Wynne, St. Louis, for respondent.
This is an appeal by defendant. Marion Wilderman, from an order of the trial court sustaining a motion filed by plaintiff, Russell J. Wilderman, requesting a modification of a divorce decree with respect to plaintiff's right of temporary custody of the two minor children of the parties.
The original divorce decree was rendered March 16, 1949. By that decree defendant was granted a divorce from plaintiff on a cross bill filed by her in the case. The decree awarded the custody of the daughter, Claudia, born January 10, 1946, and the son, Gregory, born August 10, 1947, to defendant, and provided that plaintiff, the father, should have the temporary custody of said children on Sunday of each week between the hours of 2:00 p.m. and 5:00 p.m.
On June 23, 1950, said decree was modified so as to provide that plaintiff have temporary custody of the children "on Sunday and Wednesday of each week from 2:00 p. m. to 5:00 p.m., and from 2:00 p. m. to 3:30 p.m. on Christmas and other holidays, to wit, Decoration Day, Fourth of July, and Thanksgiving."
Thereafter, and on September 17, 1951, plaintiff filed a second motion to modify the decree on the following grounds:
"3. Your petitioner further states that the older child, Claudia, is now attending Grade School and, because of school hours, petitioner will not be able to have temporary custody of her on Wednesdays until after 3:30 p.m.
"4. Your petitioner further states that both children are, since the date of the last modification, fourteen months older, and your petitioner states that an increase in the time allotted to him for temporary custody would give his minor children more opportunity to recognize his parental status."
The cause came on for trial on said motion on November 9, 1951, and was tried on that day. On November 14, 1951, the court sustained plaintiff's motion and ordered that the decree be modified "to give plaintiff the temporary custody of the two minor children, Claudia and Gregory, as follows:
"Sundays 10:00 a.m to 8:00 p.m. Wednesdays 4:00 p.m. to 6:00 p.m. Children's birthdays 4:00 p.m. to 6:00 p.m. Christmas Day 2:00 p.m. to 8:00 p.m. New Year's Day 2:00 p.m. to 8:00 p.m. Fourth of July 11:00 a.m. to 8:00 p.m."
Judgment was entered accordingly, and defendant has appealed from said judgment.
The plaintiff testified that he lived with his parents in a three-room frame house at 6420 Hancock Street in the City of St. Louis. The house was owned by his parents. Plaintiff, a self-employed photographer, was doing business under the name of "AAA Photographers". He stated that he had been in that business for three years.
Plaintiff further testified that since the date of the last modification of the decree Claudia had started to school, with the result that he was no longer able to get her at 2:00 p.m. on Wednesdays. Instead of having her from 2:00 p.m. to 5:00 p.m. on Wednesdays, he had her only from 4:00 p.m. to 5:00 p.m. on said days. He further stated that he was asking the court to increase his temporary visitation privilege on Sundays for the reason that he wanted to take the children to 9:00 o'clock Mass and have them at his home until 7:00 o'clock in the evening. He further stated he desired the visitation privilege increased on Wednesdays so he could get the little boy at noon, and pick up the little girl after school, and take them to his home for supper.
Defendant testified that at all times since the last modification of the decree plaintiff had been permitted to have the children during the hours specified by the court's order. Defendant stated at the hearing that Claudia was at that time attending school and would leave school at 3:30 p.m. on Wednesdays and come home to change clothes. Plaintiff would then get Claudia before 4:00 o'clock. She stated that plaintiff would get the boy at 2:00 p.m.
Defendant further testified that the children contracted many colds as a result of their visits to plaintiff's home, and that on occasions plaintiff would on cold days have them in the basement of his home playing with soap bubbles. Defendant stated that she objected to plaintiff having the children out for meals because she had a regular diet for them which she did not want interrupted; that she did not believe in feeding children ice cream sodas for meals; and that plaintiff did not feed them regular food. Defendant testified:
"Q. You don't think he and his mother would provide meals for the child? A. I don't know about his mother, but he wouldn't. But he doesn't take the children to his mother, Mr. Motherway. He says his mother doesn't have to see them; they are his children."
Defendant further testified that she had no objection to plaintiff seeing the children at the times set out in the decree, as originally amended, but did object to his having them for a longer period. She stated that the children were very nervous when they came home after being with plaintiff.
The sole point urged by appellant is that there was no change of conditions shown which justified a modification of the decree, and that the order of the trial court should be reversed for that reason.
We have carefully examined the transcript and have concluded that there is no merit to the appeal. There was a change in conditions which authorized the court to make the somewhat slight change in plaintiff's rights of visitation. It appears from the evidence that since the prior modification Claudia has entered school, so that plaintiff's temporary custody on Wednesdays was reduced to the period of one hour. It also appears that the children have arrived at an age where both would benefit by association with their father and, in our opinion, the trial judge, who saw the parties and observed their demeanor, did not abuse his discretion in extending the period of temporary custody so that said children could experience a more intimate personal contact with their father.
The order appealed from is affirmed.
BENNICK, P. J., and DEW, Special Judge, concur.