Opinion
No. 21706.
March 3, 1952.
T.D. Judy, Edward C. Lynch, Kansas City, for appellant.
Frank J. O'Leary, Kansas City, for respondent.
This is an appeal by the defendant from an order modifying a divorce decree relative to the custody of a minor child.
The record discloses that on November 2, 1950, a decree of divorce was granted to plaintiff from defendant and plaintiff was awarded the custody of their minor child, Susan Lynne Young, two years of age, and defendant was ordered to pay plaintiff $60 a month for the support of said child. On March 21, 1951, defendant filed a motion to modify the decree in order to prohibit plaintiff from removing the child from the State of Missouri; and a separate motion to set aside the divorce decree. Plaintiff filed answer to defendant's motions denying the allegations therein and, among other relief, asked that she be permitted to take the child with her to Cambridge, Massachusetts. Evidence was heard on the motions and on March 30, 1951, the court overruled both of defendant's motions, and also denied plaintiff's request to take the child with her out of the state. No appeal was taken from those orders. On June 22, 1951, plaintiff filed another motion seeking permission to take the child with her to Cambridge, Massachusetts. After a hearing that motion was sustained, and the defendant perfected his appeal.
The pleadings and the evidence disclose this state of facts: The child, Susan Lynne, was mentally and physically handicapped from birth. She was suffering from a palsy, the exact cause of which was undetermined by the doctors who examined her. The child required the constant attention of her mother who carried out a prescribed course of massages, exercises and treatments which, it was hoped, would improve and accelerate the child's mental and physical development. The mother followed the instructions assiduously and the child did improve. During most of this time defendant was employed in Topeka, Kansas, and was home only on week ends. Some months after the divorce plaintiff decided to marry Richard Eckaus, who lived in Kansas City, but who at that time was a student at the Massachusetts Institute of Technology. He was to graduate from that institution about June 1, 1951. Plaintiff and Eckaus were married March 23, 1951, and she desired to accompany him to Massachusetts and remain until his graduation. That desire caused the first set of motions to be filed. At that hearing the court overruled all three of said motions but did not modify the decree specifically prohibiting plaintiff from taking the child out of the state; however, the court did state to the plaintiff that if she desired to accompany her husband, Eckaus, to Massachusetts she should leave the child with the defendant, which she did. At that time the defendant was living with his mother and father and was employed in Topeka, Kansas, and got home only on week ends. However, shortly thereafter he gave up his position in Topeka and secured employment in Kansas City. In his new position he worked from 7:30 a.m. until 4:15 p.m. He and his mother and father gave the child every care and attention they could under the circumstances. There was no criticism of their efforts in this behalf. However, when the plaintiff returned to Kansas City five weeks later, she testified that the condition of the child had deteriorated, both physically and mentally during her absence, and detailed the symptoms which indicated such deterioration. The defendant and his mother and father testified that in their opinion the child had held the gains which had been made and that she was somewhat improved. The first two doctors who treated and prescribed for the child were Osteopaths, but after the mother returned and found, in her opinion, that the child's condition had deteriorated, she took her to Dr. Raymond Latham, who was a specialist in children's diseases. He testified that the child was mentally and physically handicapped, but that he was uncertain what had caused this condition. It was his opinion that the child's brain had probably been injured at birth. He detailed her condition and gave it as his opinion that she required the care and attention of the mother twenty-four hours a day. During the time he was treating the child, he learned from plaintiff that her husband had been employed as a professor at Brandeis University in Waltham, Massachusetts, which is a suburb of Boston. He immediately recommended to plaintiff that she take the child to Dr. Bronson Crouthers who, in the opinion of Dr. Latham, is one of the outstanding specialists in the field of children's diseases, and that he had a hospital and laboratory facilities for the treatment of children which could not be duplicated or approached in Kansas City or this vicinity and possibly no other place in the United States. This advice of Dr. Latham, together with the fact that her husband had been employed by Brandeis University, prompted plaintiff to file her second motion for permission to take the child with her to Massachusetts.
The evidence also discloses that since Mr. Eckaus had been employed as a professor at Brandeis University he had rented a home for his wife and the afflicted child; was well able to provide for them, and that the mother could give her entire time to the attention and care of the child.
We have not detailed the symptoms of the child's affliction or the treatments considered necessary to improve her condition because there is no dispute about her affliction. The only conflict in the evidence concerns the degree of improvement of the child.
It must be kept in mind that the court declined to change the custody of the child in these various proceedings. The custody was left with the mother at all times. The question which troubled the trial court was whether the mother should be permitted to take the child to her new home in Massachusetts. That may result in preventing the father from visiting the child or have the child visit him except on rare occasions, and such a situation is deplorable. But the courts have established one pole star to guide them in such a situation; that is, the welfare of the child. The love and affection of one of the parents and the grandparents must sometimes be by-passed in determining what is best for a small child.
When we consider the fact that Susan Lynne is a little girl under four years of age and afflicted as she is, and, as testified by Dr. Latham, she, of all children, needs the love and affection and care of her mother and the best medical service available, there can be but one conclusion. The mother should have the child with her in Massachusetts.
Appellant argues that the question whether the mother should be permitted to take the child with her to Massachusetts was decided by the court on March 30, 1951, and, consequently, that issue is res judicata. There is no merit in this contention. There is grave doubt whether the order of the court merely overruling the motions of the respective parties without a judgment modifying the original decree of custody or without placing any limitation upon the mother's right to custody, was sufficient to be a final adjudication of her right to remove the child from Missouri. However, we need not decide that issue because the motion filed by the mother on June 22, 1951, alleges and the evidence shows a very material change of conditions subsequent to the hearing of March 30, and these changed conditions certainly authorized the court to make the order permitting the mother to remove the child to Massachusetts. Lane v. Lane, Mo.App., 186 S.W.2d 47; Sanders v. Sanders, 223 Mo.App. 834, 14 S.W.2d 458; Meredith v. Krauthoff, 191 Mo.App. 149, 177 S.W. 1112; Angus v. Angus, Mo.App., 225 S.W.2d 795.
Appellant's last contention is that the evidence is insufficient to show that the welfare of the child demands its removal from this state. He argues that there is no evidence tending to prove that he is an unfit parent and is not willing and able to provide the child with the very best medical care and attention which is available here. The mother never contended that the father was an unfit parent or that he would not provide medical attention. She concedes that he and his parents are good people, but that is not sufficient to deny this afflicted child the love and affection and tender care of the mother and an opportunity to receive special and outstanding medical, clinical and hospital care.
We have no doubt about the correctness of the trial court's ruling. The judgment is affirmed.
All concur.