Opinion
No. 6873.
June 29, 1950.
APPEAL FROM THE CIRCUIT COURT, JASPER COUNTY, WODSON OLDHAM, J.
Lincoln, Lincoln, Haseltine Forehand, of Springfield, for appellant.
Birkhead Teters, of Carthage, for respondent.
This is an appeal from supplemental orders in a divorce case. The husband was the plaintiff below, and is the respondent in this Court. The wife was the defendant in the trial court and is the appellant here. To avoid confusion, we will generally refer to them as plaintiff and defendant, as they were designated in the trial court.
As neither appellant nor defendant appealed from the judgment of the trial court granting the divorce, we do not see the necessity of an elaborate statement of the pleadings in the divorce part of the case. Suffice it to say, that plaintiff filed a petition for divorce of the marriage with defendant, consummated on June 10, 1944. He alleged the birth of the oldest child, a girl, name Charlotte Bertha, and charged certain misconduct on the part of the wife defendant below.
She filed an answer and cross-bill, alleging misconduct on the part of plaintiff, and asking for a divorce for herself, together with the care and custody of the child then born, and of the child to be born later. Plaintiff filed an answer to such cross-bill. There was proof both ways and it is unnecessary for us to discuss such proof, as both plaintiff and defendant seem to have been satisfied with the action of the trial court in granting a divorce. There was substantial proof of the misconduct of both plaintiff and defendant, as alleged in their pleadings. In that case, even if the propriety of the granting of the divorce was questioned, we should defer largely to the finding of the chancellor, who heard all of the evidence and saw and heard the witnesses, as they gave their testimony. We are not bound by the findings of the chancellor; but will not disagree with the findings, if those findings are supported by substantial evidence. The same rule governs supplemental orders of the trial court, as to the custody and care of the children and their support and maintenance, unless conditions subsequently change.
Outside of the pleadings, it may be well for us to state something of the facts developed in the 278 page typewritten transcript concerning the facts in the divorce case, as well as the bearing of that testimony upon the supplemental orders made by the trial court.
Plaintiff lived on a farm with his parents in eastern Kansas, and was in partnership with his father in certain activities on that farm. How long that relationship had existed, we are not informed. Defendant had been a school teacher for some years. After the marriage, plaintiff and defendant lived for a time with the parents of plaintiff. Defendant had some money saved up, and a large part of such savings was spent, possibly with defendant's consent. Afterwards, the Kansas farm was sold and plaintiff and defendant lived with plaintiff's parents in Jasper County, Missouri. The proof tended to show that plaintiff insisted on living with his own parents. Defendant felt that plaintiff's mother was unfriendly, even hostile, to her. The truth thereof need not be determined by us, since no complaint has been made as to the granting of the divorce in the case. Apparently, both plaintiff and defendant were of rather mature years, when the marriage was consummated. If her testimony is to be credited, the plaintiff drank to excess, and his mother was at least unfriendly to her.
The trial court entered a divorce decree on April 6, 1949, and held that defendant was the innocent and injured party and granted her a divorce on her cross-bill, and made some supplemental orders at that time. The propriety of such orders is the issue in this case.
Like in a divorce decree itself, the orders of the trial court for the support and for the care and custody of the children, made when the divorce is granted, are largely within the sound discretion of the trial judge and an Appellate Court should not interfere with such orders, unless such discretion is not supported by the evidence. Appellant recognized this rule, when she charged in her motion for new trial, and in her brief in this case, that the trial judge abused his discretion in making such orders.
It is well settled that an Appellate Court should recognize the right of the trial court to use its own sound discretion, when the making of such orders is supported by the evidence. It is only when such orders are not supported by the evidence, presented at the trial, that an Appellate Court should set aside the orders of the trial court.
With this rule in mind, we have carefully studied the record and have come to the conclusion that the supplemental orders, made by the trial court, are not supported by the evidence in the case and should be set aside.
The trial court not only awarded appellant a divorce on her cross-bill, holding that she was the innocent and injured party, but awarded her the exclusive care and custody of the two girls, the fruit of such marriage, for most of the time, with visitation privileges in respondent, at all reasonable times, and provided that respondent should pay her the almost ridiculous sum of $15.00 per month for the support and maintenance of the two children, when such children were in her care.
In argument, respondent's attorney admitted that such amount was not sufficient for the support of two children; but said that such amount was all that respondent could pay, due to his then exhausted financial condition. We feel that the trial court abused its discretion in fixing the amount at that figure. It had nothing to do with respondent's ability to pay. Respondent paid appellant $25.00 per month, for several months before the trial, when only the child Charlotte had to be supported. The youngest girl, Jennifer, was not born at that time, and respondent knew nothing about her. The only excuse the respondent gave for not continuing payments to appellant at that rate was that he repaid $700.00 he had borrowed from appellant's sister, to avoid suit by her, and then could not keep up the payments to appellant.
It is the duty of the husband to make proper support not only for his wife, but also for any children born of the marriage. If the amount for support is fixed by the trial court at such a high figure that the husband cannot pay it voluntarily, the wife, if she secures a divorce, can have recourse to levy an execution, as in any other case of indebtedness. The trial judge should not have been concerned in this case about respondent's ability to pay.
The evidence tended to show that appellant, again a school teacher, pays $80.00 a month to her sister and mother for the care of such children, when appellant is away from them. We feel that respondent should pay at least $40.00 a month for the care and maintenance of the two children, mere infants, as yet, and that the order, fixing such amount for the two children at $15.00 per month, was an abuse of the discretion of the trial court and should be set aside.
The order permitted respondent to have the care and custody of the two children at the home of his parents during the month of July each year. That was equally an abuse of the discretion of the trial court. In the first place, the evidence is that respondent has never even seen the daughter, Jennifer, born since the pleadings were filed, but in existence when the case was tried. Respondent cares nothing about having Jennifer in his care, even at his mother's home, although, as her father, it is to be hoped that he may cultivate some interest in her in time, and under more favorable circumstances.
Again, respondent's father, eighty-five years of age when the case was tried, has poor eyesight and is crippled. Respondent's mother was then seventy-one years of age and suffered from high blood pressure. If appellant's evidence is accepted, respondent's mother is hostile to her and might have a bad influence on the children.
Considering all of these things, the order for the care and maintenance of the children should have been for a much larger sum. The order, permitting the respondent to remove those children to the home of his parents during July of each year, clearly should not have been made.
The orders of the trial court, for respondent to pay only $15.00 per month and to have the care and custody of the children during July of each year, were an abuse of the trial court's discretion and cannot be permitted to remain in force. The respondent, as the father of the children, born to himself and the appellant, should be allowed visitation privileges, at such reasonable times, and under such conditions as the trial court may determine to be proper.
The orders for the care and maintenance of the children and for respondent's exclusive care of the children in July, so long as there is no change in conditions, should be reversed and the cause remanded, with instructions to the trial court to make supplemental orders consistent with this opinion.
It is so ordered.
VANDEVENTER, P. J., concurs.
McDOWELL, J., concurs.