author: FRANK D. CONNETT, Jr., Special Judge.

text:
    Myrtle RIGGIN, (Plaintiff) Respondent, v. Raymond RIGGIN, Jr., (Defendant) Appellant.
    No. 31460.
    St. Louis Court of Appeals. Missouri.
    Dec. 17, 1963.
    Motion for Rehearing or to Transfer to Supreme Court Denied Jan. 16, 1964.
    Gregg Wm. Keegan, Jos. B. McGlynn, Jr., St. Louis, for appellant.
    Thomas W. Flynn, Jr., and Willemin & Flynn, Clayton, for respondent.
   FRANK D. CONNETT, Jr., Special Judge.

Defendant-appellant father and plaintiff-respondent mother were married on June 21, 1941, in St. Louis, Missouri. A girl named Carole was born of this marriage on August 13, 1943. On December 12, 1951, in St. Louis County, plaintiff obtained a divorce from defendant and received custody of Carole. She was allowed alimony in the amount of $50.00 per month and child support in the amount of $75.00 per month.

The parties entered into a property settlement which included no income producing property and from which plaintiff received the home, a $12,000 house ($3600 equity). She assumed the mortgage payments on the house of $75.00 per month which were later increased to $104.00 per month by reason of improvements and repairs made to the house by plaintiff.

In August 1961, plaintiff filed a motion to modify the child support allowance and on October 13, 1961, defendant filed a motion to modify the alimony allowance. On October 20, 1961, the two motions were consolidated and tried before the court.

The only witnesses were the plaintiff who testified as to the present condition of herself and Carole and defendant who testified, by deposition, (introduced by plaintiff) as to his present condition. There was no material conflict in the evidence. On August 21, 1962, the court without findings of fact (none were requested) denied defendant’s motion to modify the alimony allowance and sustained plaintiff’s motion to modify the child support allowance. It set the allowance at $45.00 per week which comes to $195.00 per month, an increase of $120.00 per month over the $75.00 per month allowed ten years earlier in the divorce decree.

Defendant appeals from the action of the trial court in both motions. He seems to contend that the evidence was insufficient to show that the defendant-husband had the ability to pay the increased child support payments and in any event the alimony payments should have been decreased because plaintiff’s condition had greatly improved since the time of the divorce.

Defendant argues that since plaintiff introduced defendant’s deposition into evidence as a part of her case, she is bound thereby and that the testimony therein shows that defendant cannot afford to make the payments of alimony and child support which are now required as a result of the trial court’s action. Plaintiff, under the circumstances of this case, is bound by the evidentiary facts in the defendant’s deposition. Orlann v. Laederich, et al., 338 Mo. 783, 92 S.W.2d 190. However, she is not bound by defendant’s conclusions drawn therefrom. The trial court drew a conclusion different from that of defendant and since there was no substantial conflict in the evidence, we will proceed to review the evidence and reach our own conclusion.

After the divorce in 1951, plaintiff was looking for work and receiving $50.00 per month alimony and $75.00 per month child support. She had house payments of $75.00 per month. Carole was eight years old and her tuition at school was $1.00 per month. Ten years later, at the time of the hearing on the motion to modify, plaintiff was still single, living in the same house, earning $433.00 per month gross. Her mother and father lived with her and shared the expense of operating the household. Her house payments were now $104.00 per month. Carole was now 18 years old and in St. Louis University studying to be a physical therapist. Her tuition and fees amounted to $876.00 per year or an average of $73.00 per month, spread out over the entire year. It cost plaintiff $210.00 per month, including the cost of education, to maintain Carole. She still received $75.00 per month child support and $50.00 per month alimony. Her total gross income including the $125.00 per month from defendant was $558.00 per month or $6696.00 per year.

After the divorce in 1951, defendant was receiving $700.00 per month gross and living with his mother. Ten years later he was living in California, married and had a six year old daughter named Barbara. He was working for the same company and his income was in excess of $20,000 per year, $18,000 of which was salary. In 1959 he earned $25,200, $5500 of which was long term capital gain and in 1960 $21,500 with no capital gain. He also received a mileage and entertainment expense account from-his employer. There was some evidence that his child Barbara was not healthy. However, the family’s monthly medical and dental expense was only $40.00. Although plaintiff-mother does have an earned income of approximately $5200.00 per year, the primary duty and responsibility to support and educate the child is in the father and he is not absolved of this because the mother may have independent means. Matthews v. Matthews, Mo.App., 337 S.W.2d 529, 532. As for the alimony payments, we have an ex-wife who earns approximately $5200 per year and a former husband who earns over $20,000 per year.

This comparison of the parties’ respective conditions in life demonstrates that the trial court drew the proper conclusion. We draw the same conclusion. The judgment is affirmed.

WOLFE, Acting P. J., and ANDERSON, J., concur.


source: Caselaw Access Project

author: ANDERSON, Judge.

license: Public Domain

text:
    In the Matter of J.-L.-H.-, a Minor. Barbara FRENCH, Petitioner, Respondent, v. Daisy FRENCH, Petitioner and Intervenor, Appellant.
    No. 31226.
    St. Louis Court of Appeals. Missouri.
    Dec. 17, 1963.
    Motion for Rehearing or to Transfer to Supreme Court Denied Jan. 16, 1964.

      Louis Gilden, Schwartz, Schwartz &. Gilden, St. Louis, for appellant.
    Thos. J. Neenan, City Counselor, John J. Fitzgibbon, Asst. City Counselor, William R. O’Toole, St. Louis, for respondent.
   ANDERSON, Judge.

This is an action filed in the Juvenile Division of the Circuit Court of the City of St. Louis on October 18, 1961, by Barbara French, through her next friend, Roy Cleghorn, the object of which was to secure an order from said court transferring the custody of her three year old! male child, born out of wedlock, to Children’s Services of St. Louis, and an order permitting her to waive the necessity of her consent to a future adoption of said) child. On the same day there was filed a waiver of consent to the future adoption of said child which was signed by Barbara French and Roy Cleghorn, her next friend. Also on said day, Children’s Services filed! a pleading in said cause, in which it joined in the prayer of the petition filed by Barbara 'French, and consented to accept custody of said child.

On October 20, 1961, the cause came on for hearing at which time Mrs. Daisy French, the grandmother of the child, who had his actual custody, appeared in court with her attorney, Louis Gilden. The latter requested a continuance of the case so that he might investigate the matter. The court granted this request and continued the cause to October 26, 1961. Cleghorn was not in court at the time, and after being informed that Cleghorn was ill, the court entered an order appointing Mr. William R. O’Toole, a member of the bar, as guardian ad litem for Barbara French.

On October 26, 1961, Louis Gilden filed the following memorandum in the cause, “Louis Gilden enters his appearance as attorney for Daisy French, the grandmother,” to which the court added the following words, “and an informant to the court.” A record entry was made in said cause in conformity with the said memorandum. The cause was then passed to November 9, 1961.

On November 9, 1961, the cause again came on for hearing, and on said day Mr. O’Toole filed a report of his investigation of the matter and recommended that the transfer of custody, as prayed in Barbara French’s petition, be granted.

Mr. Gilden appeared at said time representing Mrs. Daisy French, the grandmother. Prior to the introduction of any evidence in the case, Mr. Gilden, representing the grandmother, asked leave to file a petition for transfer of custody to and adoption by his client, Daisy French, the grandmother. He referred to his client as, the informant, and this proposed pleading as a “third-party” petition. He also stated that he had not prepared such written pleading, but stated, “I would like to present this to the court orally and then, later on, a written third-party petition * * After considerable discussion the court announced he would delay ruling on the request for the reason he wanted to first dispose of the Barbara French petition.

The cause then proceeded to trial. Mr. O’Toole appeared for Barbara French, and Mr. Gilden appeared for Daisy French, the grandmother, who is designated in the transcript as “Informant.” In petitioner’s case, in chief, the following witnesses testified; Barbara French, Roy L. Cleghorn, Harriet Lee, a deputy Juvenile Officer, who had worked on the case, and Margaret Moffatt, a welfare worker, who had also worked on the case. Petitioner gave testimony which fully supported her petition, as did the other witnesses for petitioner. Mr. Gilden on behalf of his client interposed objection to testimony which he considered inadmissible, and cross-examined each witness. By his cross-examination, he sought to bring forth testimony to discredit petitioner’s moral fitness to have custody of the child, and which tended to show abandonment of the child by petitioner. He also sought to establish by cross-examination of petitioner that she did not have the mental capacity to give consent to the transfer of custody to Children’s Services, and had previously testified, in a statement taken in Mr. Gilden’s office, that her desire was that Jhe grandmother should have the child and that she desired to revoke her consent given the Children’s Agency. He also brought out that the child has lived at the grandmother’s house since it was born, and has been properly cared for by the grandmother. He also, by his questions on cross-examination, attempted to show that petitioner was living with one, Tony Mendoza, and that the latter by undue influence had coerced petitioner to bring the suit, and that she did not do so of her own free will.

Petitioner’s other witnesses were also-thoroughly cross-examined by Mr. Gilden in an attempt to break down petitioner’s case.

At the close of petitioner’s case, Mr. Gilden presented to the court for filing, a petition for adoption by Daisy Lee French. When presented the court made the following ruling:

“The Court: I don’t know whether it can be filed in this case or not * * * you can file it. I think the clerk better make a separate case for it, and then we can always order it consolidated.”

The petition for adoption was then filed, and was made Cause No. 72,244 in said court. Said petition alleged that Barbara French had for a period of one year immediately prior to the filing of the petition, willfully abandoned the child and willfully neglected to provide him with proper care and maintenance.

Mr. Gilden, representing Daisy L. French (referred to in the transcript as “Informant” or “Third-Party Petitioner”), then placed on the stand thirteen witnesses in an attempt to show that it would he to the best interest of the child to leave it in the custody of the grandmother. To defeat petitioner’s case, there was also evidence calculated to show abandonment and non-support as alleged in the petition for adoption. This evidence went in without objection that it was not a proper subject of inquiry in said proceeding.

The evidence took a very wide scope and matters relating to the home life of petitioner and Mrs. Daisy French were fully covered. One of these witnesses was Dr. Dermott Smith, Acting Director of the department of Neurology and Psychiatry at St. Louis University School of Medicine, who treated petitioner for •emotional disturbance, seeing her on five occasions, but stated she was not psychotic. The Court called Tony Mendoza, the person with whom it was claimed petitioner lived.

At the conclusion of the testimony the court sustained Barbara French’s petition, and in its order granted Barbara French permission to waive the necessity of consent to future adoption, and approved the waiver executed by her, dated October 16, 1961. The judgment was entered November 20, 1961.

Also at the conclusion of the case the transcript shows the following:

“Mr. Gilden: And what are you ruling on, my petition for consolidation and adoption ?
■“The Court: I am not going to rule upon the adoption petition at this time, I don’t think I can.
“Mr. Gilden: Well, are you going to consolidate the causes?
“The Court: No, I am not going to consolidate the causes.”

On November 27, 1961, Daisy French, as “Intervenor and Informant”, filed in cause No. 72,138 a combined motion for new trial, and motion to set aside the court’s order denying the consolidation of the case with cause No. 72,244, the adoption proceeding instituted by Mrs. Daisy French, or in the alternative to overrule petitioner’s petition. In said motion it was averred, “That the Court erred in not ruling on the petition for adoption which this petitioner asked to be consolidated with this transfer of custody proceeding, since said adoption proceeding involves the same child.”

On the same date, November 27, 1961, the grandmother, petitioner in Cause No. 72,244, the adoption proceeding, filed in said adoption proceeding a motion to set aside the order of the court denying consolidation of said cause with Cause No. 72,138, the cause filed by Barbara French, and to sustain her (Mrs. Daisy French’s) petition. Paragraphs 2 and 3 of said motion are as follows:

“2. That said proceedings arise out of the same subject matter and that the evidence in cause No. 72,138 would be applicable to cause No. 72,244 which is the subject of this adoption proceeding.
“3. That under the evidence and the facts in cause No. 72,138, which should have been consolidated with cause No. 72,244, the evidence established that the best interests of the child would be with the grandmother Daisy French.”

There was no request for a further hearing in order to present additional evidence in support of the petition for adoption.

On January 25, 1962, the court rendered the following opinion:

“At the outset of the trial in cause No. 72,138, which began November 9, 1961, no petition or pleading of any kind was filed stating the position of Daisy French, although the matter had been previously set on October 30, 1961, and continued at the request of counsel for Daisy French. Hence, the Court questioned the right of Daisy French to formally intervene. The record did not show the position of Daisy French. However, the Court took the position that any person who had evidence to offer with respect to the best welfare of the child should be heard.
“The hearing began on November 9th, 1961, and was partially heard and passed for further hearing to November 15th, 1961. Upon the latter date, the petition for adoption was filed by Daisy French with the clerk and separately numbered. Counsel for Mrs. Daisy French orally moved consolidation of the adoption petition with a cause in trial. The adoption petition involved a minor mother not served, and a minor child with no guardian. It is thus apparent that the adoption petition was filed out of time and improperly presented.
“The Court does not believe the preponderance of the evidence shows the mother willfully abandoned or willfully neglected to provide the child with proper care and maintenance for one year immediately prior to the filing of the petition. But even if it did so show, the Court does not believe the best interest of the child would be with Daisy French under all the evidence.
“Counsel for Daisy French complains that the Court’s ruling placed his client in a position where she cannot appeal. It might be suggested that counsel made the record — not the Court. However, since counsel takes the position the evidence taken upon the child’s mother’s petition to transfer custody to Children’s Services would be applicable to the adoption petition, and is decisive thereof, and that the evidence shows the best interest of the child would be with Daisy French, and since apparently all the evidence to be submitted is in, and the matter should be promptly and finally decided in the interest of the child, the Court will make final disposition of the case. It is ordered that:
“ ‘1. The motion of Daisy French to set aside the order denying consolidation is sustained, and said Causes (being #72138 and #72244) are hereby ordered consolidated.
“ ‘2. The motion of Daisy French for new trial, or in the alternative to overrule petition of Barbara French for transfer of custody, is overruled.
“ ‘3. The motion of Daisy French to sustain her petition for adoption is overruled, and said petition is hereby dismissed.’ ”

The orders and judgments in conformity with said opinion were entered of Record on January 25, 1962.

On January 31, 1962, Daisy French, filed, in the consolidated causes, a motion to set aside its judgment denying said petition for adoption and to grant her a new trial. The gist of said motion was that the court erred in sustaining her previous motion to set aside the order denying consolidation and entering judgment against her on her petition for adoption without according her a hearing on said petition for adoption, and that the court erred in finding against her on her petition for adoption. It was also alleged that if the court’s order was permitted to stand, she, Daisy French, would be deprived of her rights to due process of law under Article 1, § 10, of the Constitution of Missouri, V.A.M.S,, and the Fourteenth Amendment of the Constitution of the United States.

On the same day, Daisy French, also filed in the consolidated cause a motion for new trial, containing substantially the same averments as were contained in the above mentioned motion.

The court never ruled on the above motions. They are, therefore, deemed to have been denied 90 days after January 31, 1962. Civil Rule 78.04, V.A.M.R. In the meantime, and on January 2, 1962, Daisy French gave notice of appeal from the judgment of the court sustaining the petition of Barbara French, and overruling her petition for adoption and dismissing same.

Appellant has moved that this cause be transferred to the Supreme Court on the ground that a constitutional question is involved. In her motion to set aside the judgment denying her petition for adoption and for a new trial, and in her motion to vacate the Court’s order of January 25, 1962, it is alleged that the order sustaining her motion to consolidate the two cases and finding against her on her petition for adoption without according her a hearing of said consolidated cause, or on her petition for adoption, if permitted to stand, would deny appellant her right to due process of law in contravention of Article 1, Section 10, of the Constitution of the State of Missouri and the Fourteenth Amendment to the Constitution of the United States.

As heretofore stated appellant in her motion entitled, “MOTION TO SET ASIDE ORDER OF COURT DENYING CONSOLIDATION, AND MOTION FOR COURT TO SUSTAIN PETITIONER’S PETITION FOR ADOPTION”, which was filed on November 27, 1961, it was averred that the court erred in not consolidating the two causes, and in not ruling on the petition for adoption. In said motion there was no allegation that a further hearing should be granted in order that she might present additional evidence in support of her petition for adoption. On the contrary, it was alleged in said motion that the evidence adduced at the hearing in cause No. 72138 would be applicable to the adoption case, and, in her motion for new trial, filed on the same day complained that “The court erred in not ruling on the petition for adoption which this petitioner asked to be consolidated with this transfer of custody proceeding, since said adoption proceeding involves the same child”. It would seem, therefore, that the court in making its order of Januáry 25th 1962 adopted a procedure which was in accordance with appellant’s wishes. It consolidated the two cases and ruled on appellant’s petition for adoption on the evidence adduced at the hearing in cause No. 72138. It did not, however, find in appellant’s favor on her petition, but held against her and dismissed her petition. If the court erred in finding against appellant and its ruling is permitted to stand, appellant will be deprived of a right of which she ought not to be deprived, but it by no means follows that she will have been deprived of her rights to due process of law. Rather she will be deprived of her rights by an erroneous judicial decision given after a consideration of evidence adduced at a hearing in which she fully participated, and after having requested a decision upon that evidence. It is a rule established by the decisions that a constitutional question in order to deprive this court of jurisdiction on the ground that a constitutional question is involved must be substantial and not merely colorable. McManus v. Burrows, et al., 280 Mo. 327, 217 S.W. 512. In Supreme Lodge of World, Loyal Order of Moose v. Paramount Progressive Order of Moose, 322 Mo. 866, 17 S.W.2d 327, it was held that where a litigant invokes a constitutional provision in determining jurisdiction on appeal, the court will look beyond the claim of a party, and determine from an examination of the record whether there is any substance in such claim. See also Lohmeyer v. St. Louis Cordage Co., 214 Mo. 685, 113 S.W. 1108. The raising of a constitutional question must really exist, and if it does not exist, it is not raised. Huckshold v. United Rys. Co. of St. Louis, 285 Mo. 497, 226 S.W. 852; Berberet v. Electric Park Amusement Co., 310 Mo. 655, 276 S.W. 36; Brookline Canning & Packing Co. v. Evans, 238 Mo. 599, 142 S.W. 319.

In this case the record plainly bespeaks due process of law, in that there was a full hearing, and evidence pertinent to the question presented by appellant’s petition for adoption was introduced and considered by the court. The real questions in the case do not involve a construction of either the State or Federal Constitution, but concern nothing beyond the exercise of judicial power within the limits thereof. Robinson v. Nick, 345 Mo. 305, 134 S.W.2d 112; Royle Mining Co. v. Fidelity & Casualty Co. of N. Y., 161 Mo.App. 185, 142 S.W. 438. The asserted constitutional question has no substance, but is merely a colorable and sham issue injected into the case in an attempt to deprive this court of jurisdiction. This is not permissible. City of St. Louis v. Fitch, 353 Mo. 706, 183 S.W.2d 828. Consequently the appeal is within our jurisdiction and, upon such basis, we shall proceed to dispose of the case on its merits.

It is urged that the court erred in restricting and limiting appellant’s status in this case to merely that of an “informant” instead of that of an “interested person” and a “proper party” with the right to intervene and be heard as such, and to fully participate in the matters being tried.

As heretofore stated, at the time the cause first came on for hearing on October 20, 1961, appellant’s counsel appeared on behalf of appellant, and secured a continuance of the case until October 26, 1961, in order that he might investigate the case. On the latter date he filed an entry of appearance as attorney “for Daisy French, the grandmother,” . to which the court added “and an informant to the court.”

No objection was interposed at the time to the court’s action and no request made that appellant be designated other than “grandmother.” Just what the status of a grandmother is in a law suit does not appear in appellant’s brief, nor for that matter, do the rights and duties of an “informant.” But, be that as it may, appellant fully participated in the case by cross-examining petitioner’s witnesses, and introducing evidence calculated to destroy petitioner’s case and to support her contention that it would be to the best interest of the child to leave him in appellant’s custody, and which evidence, it was later claimed required a finding for appellant on her petition for adoption. Appellant throughout the trial was treated as an interested and proper party to the cause. Such being the case the complaint that she was designated as an “informant” is of no consequence. If the court’s action was error, it did not materially affect the merits of the action. Under such circumstances we are not authorized to reverse. Civil Rule 83.13(b).

It is next urged that the trial court erroneously refused at the hearing to enter an order consolidating her petition for adoption with the petition for transfer of custody filed by Barbara French, the mother of the child, whose custody and adoption was involved. Here again we find no prejudicial error of which appellant may complain. She was permitted to fully participate in the proceedings on trial, and actually offer evidence, at the time, which she alleged was applicable to the adoption case, and on which she claims she was entitled to a decision in her favor in said cause. It is impossible to conceive how a different result would have been obtained had the order of consolidation been made earlier than it was. See Civil Rule 83.13 (b).

Appellant’s next assignment of error reads as follows:

“The Trial Court erred in holding that the written consent executed by the mother of the child was legally valid and binding, inasmuch as the greater weight of the credible evidence, both medical and lay, established that the consent', was not given freely, openly, and voluntarily, and while the mother was in full possession of her faculties, but quite to the contrary”.

It would appear that what appellant has in mind in the above assignment of error is, the “Waiver of Necessity of Consent to the Future Adoption of the Child” which was executed by Barbara and acknowledged before a notary public on October 16, 1961, and which was attached to her petition filed in court, October 18, 1961. The court in its judgment in addition to ordering the custody of the child transferred to Children’s Services, further ordered “that said Barbara French be and she is hereby granted permission to waive the necessity of her consent to a future adoption of said minor child, and, further, the court hereby approves the waiver of such necessity” executed by said Barbara French, dated October 16, 1961.

It is doubtful that appellant may raise the points specified. It would seem that the right to revoke or set aside the “Waiver of the Necessity of Consent to a future Adoption” for the reasons stated is a personal one which may only be exercised by the person executing same with leave of court at a hearing, notice of which has been given to all interested parties. Sec. 4S3.0S0 RSMo 1959, V.A.M.S. Barbara French did not ask the court to set aside said instrument. However, we will assume, without deciding, that appellant may urge the matters now complained of, and decide the matter on the evidence presented.

One of the points urged in support of said assignment is that the instrument in question was revoked when Barbara made certain statements in the office of appellant’s attorney. This episode occurred eleven days after the waiver had been executed, at which time she was accompanied to said office by appellant and another. The attorney had arranged beforehand to have a shorthand reporter present to record everything said by Barbara and himself at the interview. After Barbara arrived the attorney called Mr. O’Toole, the guardian ad litem, on the telephone and advised him he had Barbara in his office, and invited him to sit in on the interview. Mr. O’Toole was not present during the questioning of Barbara at that time. Barbara, at the trial, in answer to leading questions put to her by appellant’s counsel, admitted: that appellant’s attorney told her she did not have to talk if she did not want to; that he told her that if he took a statement she was acting on her own free will; that she was frightened but that the attorney did not do anything that caused her fear; that she gave a statement to him; that she remembered she answered “yes” to the question, “Now, Barbara, did you come up here to my office of your own free will ? ”; that she answered, “Yes” to the question, “You understand any statement you make now might be used later on in a court proceeding at your son’s transfer of custody * * * do you understand that?” ; that she answered “no” to the question, “was there anybody there other than the three of us in that room at that time? ” ; that she answered “Yes” to question “Do you feel that there has been love between the child and the grandmother?”; that she recalled she answered “No” to the question, “Do you feel the child has been neglected in any way by your mother ? ”; that she recalled she answered “Yes”, when questioned if she understood she had given a transfer of custody of the child to Family and Children’s Services; that she recalled that, when asked what were her desires then, she answered, “Well, to give mother legal custody * * * under the circumstances”; that when asked what circumstances, she recalled she replied, “Well, that it can be, you know, quiet”; that she recalled that she answered “yes” when asked “ * * * You don’t want anybody to know about this proceeding, is that what you mean ? ”; that she recalled her answer was “yes”, when asked, “Do you want to revoke the consent that you gave to the Agency ? ” Continuing, Barbara testified:

“Q. Then I questioned you: ‘You want the Juvenile Court to know about this statement?’ You said, ‘not unless they have to’
“Q. * * * you mean that they not have knowledge what your desires are?
“A. * * * Yes.
“Q. And if it is to express your desires, then you want them to have this statement ?
“A. Yes.
“Q. All right. Would you sign the statement revoking the consent to the agency and giving custody to your mother, Daisy French?
“A. Yes.”

When called upon to explain why she gave the statement, Barbara testified, that at the time she was frightened because she had been threatened, and told that she was mentally ill; that she was told that numerous things would happen to her “if I didn’t do this. * * * that I would be put in an institution and * * * that I would get into trouble about these other things * * that I would get into trouble; that I would be put — maybe put in jail or prison or something like that.” She stated that her mother told her on the phone before she went to the lawyer’s office that she would go to jail or prison; appellant told her she would have her put in an institution; appellant said she would probably end up suffering, and that her father, who had recently died, would haunt her, and that she (Barbara) was scared.

Barbara, while on the stand, identified her signature to the petition and the Waiver of Consent to Future Adoption. She stated she had read them and fully understood them. She further testified that she executed the documents freely and voluntarily ; that she did not act under duress nor was she motivated by fear of anyone; that she understood the papers were for the purpose of future adoption of the child and placement with Children’s Services for that purpose. She further testified she was not then frightened.

She also testified that she understood that by this proceeding she was giving away all her legal rights to the child, and realized she would never be able to contact the child again. She said she wanted the child to have a mother and father, and a home atmosphere where he would be free from the doubts and fears she had experienced in her home. She also stated she did not feel the child would be happy with the grandmother, and thought that what she was doing, was for the best interests of the child. It also appears from the evidence that she received counsel and guidance in the matter from employees of the Juvenile Court and Children’s Services. There was no evidence that these employees in any way exerted any influence on Barbara, nor does appellant in this appeal claim that they did.

She did not execute any written revocation of said waiver. Barbara further testified that she was not asking the court to revoke her consent.

Under the evidence it is clear that Barbara French did not revoke the “Waiver of Necessity of Consent to Future Adoption” and the trial court did not err in approving same.

Appellant contends that certain facts which she claims were developed at the trial show that the “Waiver of Consent to Future Adoption” was under the impact of duress and undue influence exerted by Tony Mendoza. Those facts which are set out in appellant’s brief, are: “That Barbara lived for a considerable period of time with Mendoza who by his own admission at the trial, could have been the father of another illegitimate child, which she gave up in Fort Worth, Texas, where she was staying at the time of its birth. Mendoza had been “courting” the mother (Barbara) while she was still living with the appellant at her home. He, himself, stayed there awhile. Animosity developed between him and appellant due to appellant’s objections to her daughter’s association with him. In addition to their illicit relations with each other, they were associated together businesswise in a ceramics business, in which she worked for him. According to his testimony he had in mind “maybe marrying her sometime”.

According to the testimony of both Barbara and Mendoza they were not living together. It appears that Mendoza had been courting Barbara for some time while she was living at appellant’s home. He himself stayed there for a while. Animosity did develop between him and appellant due to appellant’s objections to her daughter’s association with him. After Mendoza left appellant’s house he took up residence at 1755 So. 18th Street. Barbara was unhappy when she lived with her mother, and sometime after Mendoza left she also moved to 1755 So. 18th Street. Barbara testified that she and Mendoza were not living together; that they had separate quarters on the same floor of the building. Mendoza also denied that he and Barbara were living together, stating that she had her own quarters and own entrance to it. He also stated that the rooms occupied by him and those occupied by Barbara were separated by French doors. It is true that Barbara gave birth to ' another illegitimate child, which she gave away. This occurred in Fort Worth, Texas, in July 1961. Mendoza testified that he could not say that he was the father of this child; that before she came to the place she then was, she dated other men, but that the child could have been his. Mendoza testified that he intended to marry Barbara when the problem connected with the child was settled. He further testified that he did not threaten her in any manner to induce her to give up the child for adoption, but that was a decision she herself would have to make under the influence of no one. He further testified that if the child was given to the grandmother it would clear up the problem, if it was decided that hers was the best home; that he would marry her if she herself kept the child, but she would have to know whether she was going to keep it.

It is our view that the evidence failed to show that the instrument in question was executed by Barbara as a result of undue influence exerted by Mendoza, and that a contrary finding would rest on mere speculation and conjecture.

It is next urged that Barbara was not in full possession of her faculties at the time the “Waiver of Consent” was executed, and for that reason the court erred in holding the instrument valid and binding. We take this as an assertion that Barbara was so mentally ill at the time she did not understand the nature and consequences of her act. Appellant places reliance on the testimony of Dr. Dermott Smith in support of this contention.

Dr. Smith, at the time he testified, was Acting Director of Neurology and Psychiatry at St. Louis University. He first saw Barbara on September 30, 1958, at Firman Desloge Hospital. She was referred to him by one of the other Departments of the hospital which could have been the Obstetrical Department, since she had given birth to her child on September 23', 1958. When asked the nature of the referral he stated that the patient complained of episodes of emotional upset, feelings of numbness, symptoms of tension, headaches and feeling needles in her head. He stated that the doctors who examined her found no organic basis for this condition and so referred her to the psychiatric clinic. The doctor then read from his records his impression gained from this interview, which record was as follows: “I felt a basic defect is severe emotional immaturity and instability, and prognosis for good adjustment must be guarded. Patient is not psychotic or neurotic, however, and no treatment at this time is indicated”. The doctor, in further explanation of her condition, which he found at that time, testified on cross-examination that the fact she had just recently been delivered of a child was a factor in forming his impression, and one reason why he was so conservative in his diagnosis; that he did not know exactly how the delivery had affected her; that the emotional impact in a woman 16 years of age, who gives birth to an illegitimate child, is considerably greater than in a woman who delivers a child born in wedlock; that at times many women, otherwise normal prior to delivery, display emotional symptoms subsequent to delivery.

Dr. Smith saw Barbara again in April 1959, at which time she displayed the same symptoms as she had on the first visit, and for that reason he thought she ought to come back and see him on a regular basis. At his suggestion, Barbara did return on May 29, 1959, June 26, 1959 and August 21, 1959. The doctor stated that on this last visit his records were “It has been my increasing impression that should this young woman be subjected to severe constant stress, she might well become Schizophrenic. The last time Dr. Smith saw her was this visit of August 21, 1959. The doctor prescribed a tranquilizer for her condition. He gave it as his opinion she would have continuous difficulties without psychiatric care, or some kind of environmental support. Barbara was living in appellant’s home at the time where there was considerable stress and friction between her and her mother.

On cross-examination Dr. Smith testified that not having seen her since August 1959, nor having been apprised of any developments in her, he would hardly be in a position to state what her condition was within the last month or so. There was no medical testimony as to her present condition, or any medical opinion as to whether on October 16, 1961, when she executed the instrument in question, her mental condition was such that she did not understand the nature and consequences of her act in executing the “Waiver of Consent”. After hearing this testimony, together with that concerning the stress experienced by her while living in appellant’s home and observing Barbara throughout the trial, the trial court found that her mental condition, at the time she executed the waiver, was such that she did understand the nature and consequences x>f her act. We are in accord with the trial court’s views. The trial court did not err in its ruling on this point.

It is contended that the Court erred in sustaining Barbara’s petition and ordering transfer of custody to Children’s Services for the reason that the evidence established that appellant was best suited to have custody of the child. We cannot agree that such is the case. While it is true that the evidence showed that the child was well taken care of by the grandmother, and that there was love and affection existing between the child and his grandmother, there are certain other factors which lead us to believe that the best interests of the child would be served by transferring the custody to Children’s Services for the purpose of future adoption by others. Appellant is 45 years old. She is a widow, her husband having died March 30, 1960. The child is three years old. Appellant collected about $5,000.00 insurance upon the death of her husband, of which there was left at the time of the trial about $2800.00. She has no other substantial assets. Appellant’s earnings are rather meager. She makes $12.00 a week as a baby sitter at night, and $10.00 per week for cleaning her sister-in-law’s house. That is the total of her earnings. However, her mother-in-law gives her $10.-00 a week. She lives in a four room house for which she pays $35.00 per month rent. The house is located in a low socio-economic neighborhood in south St. Louis. She was not attending any church at the time of the hearing, but stated she would take the child to church for instructions in the event the court granted her petition. .Barbara, the mother of the child, testified she felt it was best for the child to have a mother and father and a home atmosphere. This was the opinion of the Juvenile Officer and social workers who had investigated the case and counseled with Barbara.. If the Children’s Services is granted custody of the child it will place him in a prospective adoptive parents home.

In view of the foregoing facts and in consideration of all the evidence it is our judgment that the best interests of the child would not be to leave him with appellant, but with Children’s Services who will place him for adoption in the best suitable home. The court did not err in the respects claimed.

It is next urged that the court failed to consider the case in the orderly process of judicial procedure, and thereby denied appellant due process of law, and was an abuse of power. What we have heretofore said in‘our judgment is sufficient to dispose ,of this point adversely to appellant.

.. Finding no reversible error in the record, each of the judgments of the Juvenile . Court, on appeal before us, is affirmed.

WOLFE, Acting P. J., and JACK P. PRITCHARD, Special Judge, concur.

RUDDY, P. J., not participating.


author: HOGAN, Judge.

text:
    H-, Plaintiff-Respondent, v. D-, Defendant-Appellant.
    No. 8209.
    Springfield Court of Appeals. Missouri.
    Dec. 6, 1963.
    Motion for Rehearing or for Transfer to Supreme Court Denied Jan. 2,1964.

      Thomas Strong, Farrington & Curtis, Springfield, for defendant-appellant.
    John F. Carr, Miller, Fairman, Sanford, Carr & Lowther, Springfield, for plaintiff-respondent.
   HOGAN, Judge.

This is a child custody action. The plaintiff is the father of the child, and the defendant is her mother. They were married on January 25, 1957, and the child was bom November 6, 1958. The two were separated shortly after the child was born. They were divorced in the Circuit Court of Greene County, Missouri, on May 1, 1959, and at that time the trial court granted a divorce to the plaintiff, but awarded custody of the child to the defendant. In January 1962, the plaintiff filed this Motion, requesting modification of the original decree so as to grant him the care and custody of the child, and asking for permission to remove the child to California, where he now resides. As grounds for his Motion, the plaintiff set up that: (a) the defendant was unfit to have custody of the child; (b) the defendant had, in effect, relinquished her right to care and custody of the child by placing her in the home of the maternal grandparents in Missouri, while defendant removed her residence to Califoihi'ia; (c) the defendant had been engaged in an illicit relationship with a man not her husband; and (d) the plaintiff had been denied access to the minor child, without cause. The defendant filed a responsive pleading in which she traversed the allegations of the plaintiff’s Motion generally, prayed that she be allowed to take the child to California, and asked that the amount provided fór' child support be increased. The trial chancellor has modified his original decree by awarding custody of the child to the plaintiff and granting permission to remove the child to California. The defendant has appealed.

Though the evidence is irreconcilably in conflict on almost every point, it is fair to say, that the parties have had only a brief and very troubled marital career. The two were married in 1957 when the plaintiff was about 20 and the defendant only about 18. Their acquaintance was very limited when, they were married, and their difficulties were not long developing. The plaintiff began drinking heavily within a short time and, at least according to the defendant’s-testimony, was physically abusive to her on a number of occasions. She estimated that the two were separated “as many as three times” during their first year of marriage.

• In February 1958, the defendant began a proceeding for divorce and moved to St. Louis to live with her sister, only to discover that she was pregnant. According to the defendant, she then “talked to his parents” about “financial help with the baby” and, according to the plaintiff, he went to St. Louis and “brought her back.” In any event, the two were temporarily reconciled and the minor child was born November 6, 1958. Whatever the basic source of trouble between the two, this attempt at reconciliation was unsuccessful. In December 1958 — according to the defendant because of the plaintiff’s physical abuse— the parties were finally separated, and on May 1, 1959, they were divorced.

During the period from early December 1958 to March 1960, when the plaintiff moved to California, there seems to have been little contact between the two. The defendant’s evidence indicated that the plaintiff made very little effort to see the child and that when he did attempt to see her' he was sometimes intoxicated and only came “to torment me.” The plaintiff very positively denied that he was abusive either to the child or to-his wife during this period; he maintained that he had visited the child as often as possible, and had provided as much support as- his means allowed. In March 1960, the plaintiff moved to California, while the defendant remained in Springfield. Several" witnesses testified to the defendant’s exemplary behavior during this period following the divorce ánd preceding her ill-fated attempt to' become reconciled with the plaintiff In 1961. It is not seriously contended that during the first two years of heir child’s life the defendant conducted herself with any impropriety, nor that she failed to care properly for her child. The evidence indicates that the defendant at this time led a quiet and conventional life as a stenographer for a local drug firm, and that she spent as much of her time as possible caring for her child; the record indicates that she was a devoted and attentive mother. Indeed, we may summarize the whole diffuse record concerning the four years between January 1957 and January 1961 by saying that the evidence shows principally that the whole married career of these unfortunate litigants was characterized by misunderstanding, frequent quarrels which often ended in physical violence, and numerous periods of separation and attempted reconciliation. The relationship between the parties, both during their marriage and after their divorce in 1959, was often marked by an atmosphere of mutual suspicion or downright hostility and, while the record does not convincingly show the real source of their difficulty, it does show that their feelings toward each other had not abated at the time this case was tried. For this reason, we are frank to say that we accept the parties’ testimony ; — at least that concerning the other’s behavior — with considerable reserve.

The principal matter litigated upon this trial was the series of events which occurred after January 1961 when the plaintiff and defendant again attempted to become reconciled. As we have said, the plaintiff had moved to California in March 1960, seeking employment. Early in 1961, the plaintiff visited Springfield and while here he called on the defendant. Whatever his motivation at the time, plaintiff asked the defendant to return to him and bring the child so he might “establish a home for her and ■ the child and be remarried to her.” The circumstances surrounding this undertaking initially are not questioned: the plaintiff admittedly requested that the defendant return and promised the defendant that he would marry her immediately if she would do so. In February 1961, the defendant took the child and went to California where she joined the plaintiff.

The parties were not remarried. According to the plaintiff, the defendant never actually mentioned marriage, either at the time of his proposal that she return with him to California or after she joined him. When he broached the subject of marriage, he was told by the defendant “that she did not care for me, and did not want to marry me” and that defendant had joined him only “to provide welfare for her [defendant] for a certain length of time, until she could become established.” The defendant, on the other hand, maintained that she had consented to go to California only in reliance upon plaintiff’s offer of marriage, and that when she arrived plaintiff refused to marry her. When he was pressed, the defendant testified, the plaintiff would temporize, stating that the two would be married “within a few weeks” or “as soon as we can get a baby sitter.” In any event, the two resumed cohabitation, established a home together with the child, and held themselves out to their acquaintances as being husband and wife. Eventually the defendant secured employment and the two shared their earnings and established a joint bank account. This arrangement lasted until the end of June or beginning of July, 1961. Both parties (then in their early twenties) assured the trial court that though they shared the same roof they voluntarily remained continent after the first few weeks in California.

In describing the plaintiff’s actions during this period from February to July 1961, the defendant vividly accused the plaintiff of very serious improprieties toward the child. It was the defendant’s testimony that the plaintiff disciplined the child harshly and unnecessarily. She testified that the plaintiff exposed his genital organs to the child in an obscene manner : it was her position that he did so deliberately in order to frighten the child, and she said that for this reason “I was so mad and so hurt and I left the following week end.” The plaintiff vigorously denied that any such incident ever occurred. His explanation — if it can be called that — for the parties’ final separation in July 1961 was that “we didn’t feel like sharing our lives together as man and wife. We were incompatible.” The upshot of these renewed difficulties was that the defendant moved from the quarters she had been sharing with the plaintiff to a separate apartment. It is the plaintiff’s position that the defendant then acquired a paramour, a man named Larsson.

According to the plaintiff’s evidence, after he and the defendant had returned to California and had subsequently discovered that they did not desire to be remarried, he and the defendant made an agreement to separate. In order to assist the defendant as much as possible, he found an apartment for the defendant, paid a part of the rent, furnished the apartment, and stocked it with some groceries. The plaintiff was obliged, he said, to borrow money to do so. Within a very short time, the defendant called the plaintiff by telephone and stated that she was going to move but refused to disclose her new address to the plaintiff; he heard nothing further from her until the middle of September, 1961. From July until the middle of September, the plaintiff had not been permitted to visit the child. However, the defendant’s bank had sent her statement to the plaintiff by mistake and plaintiff, in going through the statement, had discovered that one of the checks bore an address on Chadron Avenue in Gardena, California; by comparison with the telephone directory, it was shown in evidence that this was the address listed for a Mr. Bo Larsson.

The defendant again called the plaintiff “about the middle of September,” stating that she was in financial difficulty and needed money. Upon being asked where the child was, the defendant informed the plaintiff that the child had been sent back to Missouri. The defendant asked the plaintiff to meet her on a street corner near the Chadron address listed as being Mr. Larsson’s, and during the evening the plaintiff and defendant met on this street corner. At this time, according to the plaintiff, the defendant admitted that she had been cohabiting with Mr. Larsson and “told me at the time that she had no other choice than to send the child back to Missouri because Mr. Larsson didn’t want the child to be with them.” The plaintiff maintains that at this time he informed the defendant of his intention to seek custody of the child and that the defendant agreed. The evidence shows that in October 1961 he did institute a habeas corpus action in the trial court, which was unsuccessful, and that this Motion to Modify followed.

Throughout the trial, the defendant vigorously denied that she had been guilty of any immoral conduct with Mr. Larsson. It was her position that she had moved into an apartment of her own following the plaintiff’s exhibition of his genital organs to the minor child, and that she had moved again because the plaintiff “kept watch on my apartment and kept track of every minute of every day * * * and I had asked for financial help and he refused to give it to me.” As a result of this treatment, the defendant decided to move to a place where the plaintiff could not find her. It is undisputed that in August 1961 the defendant brought the minor child back to St. Louis where she turned the child over to the maternal grandparents. The defendant maintained that because she was “a nervous wreck,” had no money, and was in a “run-down condition,” she was obliged to return her child to the maternal grandparents.

Upon delivering the child to the custody of the maternal grandparents, the defendant immediately returned to California to resume her employment. The defendant at this time was living with two friends, Mr. and Mrs. Fredericks, who are often referred to here as Phil and Elaine. The defendant remained in California, living with Phil and Elaine Fredericks, until she returned to Springfield late in September. She remained in Springfield for two or three weeks on this visit and while she was here Larsson contacted her by telephone, advising her that he was taking his father on a cross-country trip. Larsson offered to •stop in Springfield on this trip and'offered to ■take the defendant back to California as he returned. The defendant accepted this offer of transportation and returned to California with Mr. Larsson and his father. She insisted that neither on this trip nor on any other occasion had she ever had any improper relation with Mr. Larsson; she vigorously denied that she had ever resided with him or in the same building with him, and unequivocally denied ever having had sexual relations with him. According to the defendant’s evidence, she met Larsson because he was the owner of a service station where the company cars were serviced. She met Larsson, according to her testimony, in the latter part of July and had several “dates” with him, and on one occasion took a short trip with him and Mr. and Mrs. Fredericks to Catalina Island. At the time of trial, the defendant was not informed of Mr. Larrson’s whereabouts; she stated that as they were “only on a friendship basis anyway,” she had never kept track of him.

The defendant explained her use of Lars-son’s address by saying that she put the address on the check (written by her for the airplane fare back to Missouri) because she did not wish to disclose her true address to the plaintiff, from whom she was hiding. It was shown in evidence that the defendant had given Mr. Larsson’s address and telephone number to the maternal grandparents in case they needed to contact her. The defendant testified that she had arranged for Mr. Larsson to ascertain who called her and the purpose of the call, again because she did not wish to disclose her true address to the plaintiff. At another point during the trial, the defendant stated that she was advised by her friend Elaine to use Mr. Larsson’s address on the check “and I did it without thinking.” It was shown that Mr. Larsson was an unmarried man, age 23, at trial time.

The plaintiff also undertook to show by his evidence that Mr. Larsson had advanced the money necessary to return the minor child to Missouri in August 1961. The defendant maintained, on the other hand, that she had borrowed the money from a Mr. and Mrs. Cummings, who were the managers of the apartment building where Mr. Larsson lived, although the defendant admitted that Mr. Larsson had delivered the money to her and that he had guaranteed repayment of the sum she borrowed. She was explicit in stating that she had done everything she could to keep the plaintiff from seeing the child and that she intended to keep doing everything she could to keep the plaintiff from seeing the child “because she remembers this treatment of him or parading nude in front of her, and I don’t want my child around him again.”

At the close of the trial, the court made an interim order allowing the defendant to remove the child to California, but the order recited that no final judgment was being entered. Shortly thereafter, the plaintiff filed a motion requesting permission to introduce additional evidence in the form of depositions to be taken in California, and at the same time applied for the issuance of a commission to take the depositions of Mr. and Mrs. Cummings and Mrs. Fredericks. The defendant did not oppose the introduction of additional testimony beyond moving the court to stay the proceedings until all child support due the defendant was paid, and until a reasonable amount of suit money was paid to the defendant in order for her to employ counsel to appear when the depositions were taken.

We shall discuss these depositions in greater detail in the course of this opinion. It is sufficient here to say that Mr. Cummings’ deposition indicated that he had never loaned any money to the defendant and that the defendant had been a frequent visitor in Larsson’s apartment; Mr. Cummings was of the opinion that the defendant had visited the apartment almost every day and on one occasion entered the apartment and remained there, alone, while Mr. Cummings was working on the apartment.

Mrs. Cummings stated that she had never given Mr. Larsson any money for the defendant and that she had never been asked by the defendant for any loan. On one occasion, the defendant had received some mail at Mr. Larsson’s apartment but Mrs. Cummings was unable to say how frequently the defendant had visited Mr. Larsson at his apartment.

Mrs. Fredericks testified by deposition that the defendant had only lived with her three or four days and that on the occasions during which the defendant said she was living with Mrs. Fredericks, the defendant was actually living with Mr. Larsson. The witness knew this because the witness’ husband had helped move the defendant into Mr. Larsson’s apartment. According to Mrs. Fredericks, Mr. Larsson had accompanied the defendant to the airport when the child was returned to Missouri in August 1961. Mrs. Fredericks was positive in her statement that the defendant had lived with Mr. Larsson for a considerable period of time. Mrs. Fredericks stated that she had been asked by the defendant not to give a deposition because “if I did, I would be the cause of her losing her baby.”

Some time later, after the'depositions had been taken and filed, the plaintiff made a written tender of the depositions to the court. The defendant, by counsel, then addressed a letter to the court in which he stated that he had not had a chance to read nor object to the depositions and in which he requested an opportunity to examine them before the court considered them as evidence. Nothing further was done until November 30, 1962, at which time the trial court awarded custody to the plaintiff, with permission to remove the child to California. It is significant that in the interim between May 1 and November 30, when the final decree was entered, the plaintiff had remarried. We note that the only semblance of evidence concerning the plaintiff's present wife is an affidavit filed on October 30, 1962, in which the plaintiff and his present wife state that they intend to establish a home in Hawthorne, California, early in 1963; that the plaintiff’s present wife has a young child of her own and ordinarily is employed as a nurse. The plaintiff’s present wife had added a statement to the affidavit to the effect that she desires to have the child in her home. There is no evidence of any nature other than this affidavit concerning- the plaintiff’s new wife, nor the surroundings in which the child will be placed if she returns with the plaintiff to California.

Sundry points have been ably briefed and argued on this appeal, but the view we take of this case makes it unnecessary and probably inappropriate to deal with all the contentions of error. We therefore limit our consideration of the points raised to: (a) the assignment that the Fredericks deposition was erroneously received, and (b) defendant’s contentions, which are in substance that the trial court erred in awarding custody to the plaintiff upon the basis of a mere affidavit, without a judicial inquiry concerning the home environment in which the minor child is being placed.

The appellant, as we understand her, maintains that Mrs. Fredericks’ deposition was erroneously received in evidence for two reasons. She says first that she received no notice of the taking of depositions, other than that imparted by the motion to receive further testimony, which incorporated an application for a commission to take depositions. Defendant maintains that without the separate notice required by Rule 57.08, V.A.M.R., the commissioner had no authority to take the depositions. Defendant makes the further assertion that since the taking of Mrs. Fredericks’ deposition was adjourned to a place different from that specified in the commission, the commissioner was without authority to take Mrs. Fredericks’ deposition, even if it be conceded the notice was sufficient.

The Fredericks deposition must be considered in context. The events which made up the purported change of circumstances in this case had actually occurred in California. Both parties proposed to take the child there. Only the parties themselves, however, had testified as to their living conditions and day to day conduct while they were in California. As the trial court’s record entries show, he understandably felt that he should have further information concerning the home into which the child would be received in California, were she taken there. An interlocutory order was therefore entered permitting the defendant to take the child to California, subject to an investigation of defendant’s home there. It was specifically provided that the cause would remain on the trial court’s docket pending this investigation. It does not appear whether this investigation was ever begun or even ordered, but almost immediately the defendant addressed a letter to the trial court advising him that she had now decided to return to Springfield, Missouri, “at least temporarily.” Thereafter, the plaintiff moved the court for permission to introduce additional testimony, combining his motion with an application for a commission to take the depositions of three witnesses, whose names he specified, along with the time and place at which he wished to take the depositions. The record does not reflect that the defendant made any specific objection to the hearing of additional testimony; she appears to have contented herself with a motion to stay the proceedings (based on plaintiff’s alleged failure to pay child support) and a motion for additional attorney’s fees. Both motions were denied. The trial court issued a commission to take depositions, specifying that the depositions were to be taken on a particular day at a particular place.

At the time stated in the commission, two of the three proposed witnesses appeared and were interrogated by attorneys for the plaintiff and defendant. Mrs. Fredericks did not appear, and after the first two witnesses had been interrogated the plaintiff’s attorney requested that the taking of her deposition be adjourned to a hospital about a mile away. Mrs. Fredericks had entered this hospital the preceding day. The defendant’s attorney then entered an objection that the adjournment was outside the scope of the commission and stated that he would not appear. Plaintiff’s attorney proceeded to take Mrs. Fredericks’ deposition in the other attorney’s absence, and she testified as we have indicated.

The depositions were filed in the trial court on August 31, and on September 13 the plaintiff offered all three depositions in evidence by written tender. A copy of this tender was served on the defendant’s attorney. On the same day, the defendant’s attorney addressed a letter to the trial court stating that he had had no opportunity to read the depositions, nor to make any obj ection, and requesting an opportunity to do so before the court received the depositions in evidence. Upon the record before us, it appears that the trial court then waited 78 days for objections to be made by the defendant. None were forthcoming and on November 30 the trial court entered a judgment modifying the custody provisions of the original divorce decree by awarding custody of the minor child to the plaintiff.

We think there is no substantial merit in the defendant’s contention that she did not receive proper notice of the taking of the depositions. She did, after all, participate in the proceeding up to the proposed adjournment. She entered an appearance by attorney and cross-examined the first two witnesses. This participation in the proceedings, in our opinion, constituted a waiver of proper notice and the appellant may not now complain upon this ground.

The defendant also says that the Fredericks deposition was erroneously received because it was not taken at the place specified in the commission. The substance of her point is that since the commissioner’s authority was limited to the time and place set forth in the commission, he exceeded his authority in adjourning the deposition to another place. The respondent answers that any irregularity in the taking of the deposition has been waived.

We believe the respondent’s position is well taken. The defendant had made no substantial objection to the action of the trial court in permitting the introduction of further testimony, although she had been advised precisely of the nature of the testimony which the plaintiff sought to adduce. She had appeared and participated in the interrogation of two of the proposed witnesses. The defendant presumably became aware of the contents of the depositions on August 31 and was advised on September 13 that the plaintiff sought to tender all three of the depositions in evidence. By the terms of the trial court’s interlocutory order, the cause remained on the docket and presumably the defendant would have been heard on any objections she had to the introduction of these depositions, had she requested the opportunity. Seventy-eight days elapsed between the time of tender and the entry of the judgment. The record does not reflect that any motion to suppress the depositions or other written objection was filed. Objections relative to the manner in which a deposition is taken — as distinguished from objections to the competency and relevancy of the evidence contained in the deposition— must be brought to the trial court’s attention at the earliest reasonable opportunity so the trial court itself may correct such errors or irregularities. Otherwise, such objections are waived. Since the defendant had not objected on principle to the trial court’s hearing further evidence, and had filed no written objection of any kind for two and one-half months after the depositions were tendered, we think the trial court might reasonably have concluded that the defendant had no obj ection to its reception of the Fredericks deposition or, if she had, that she intended to waive it. We therefore conclude that the Fredericks deposition was properly received in evidence.

We must agree with the appellant as to her contention that the trial court awarded custody of the minor child without sufficient inquiry into the home environment in which she was being placed. In so ruling, however, we feel bound to say that the trial court’s action in taking custody from the defendant and awarding it to the plaintiff was amply supported by the evidence. The court found that the defendant perjured herself in testifying as she did about her association with Mr. Larsson, and he interpreted the evidence as indicating that the defendant’s interest in her child has been secondary to her interest in Mr. Larsson. We agree that the record evidence is subject to this construction. Deliberate misrepresentation of the facts by one or another party to a custody action indicates that the party is probably an unsuitable custodian of the child, as does a manifest lack of interest in the child. Our detailed recitation of the facts makes it clear that the trial court could reasonably have found that the defendant had represented her relationship with Mr. Larsson as an innocent friendship, when in fact it was an illicit liaison, and that she had subordinated her duties as a mother to her obligations as a mistress by placing the child with her parents so she might consort more freely with her paramour. We review these cases de novo, but we defer to the trial court’s finding unless it is “clearly erroneous.” Rule 73.01(d), V.A.M.R. The trial court was obliged to make an award of custody upon the basis of conditions as they existed when the case was tried, and viewing the record in that light, we perceive no clear error.

This does not dispose of the fact that the child has been sent out of the jurisdiction into a home concerning which no apparent investigation has been made. We venture to say that no single consideration is more important in awarding the custody of a minor child than the home environment in which he or she is to be placed. Insofar as it is reasonably possible, the court should not only assure itself that the home is one in which the conventions and mores of the day are scrupulously observed, but should inquire as diligently as possible into the home environment and the surroundings in which the child will be reared. And while the remarriage of either parent is not a sufficient ground to award or deny custody, the trial court should be advised concerning the disposition and character of the stepparent, the presence or absence of other minor children in the home, and the mutual attitude or feelings of the child and stepparent, before awarding custody to a remarried parent. See Anno., 43 A.L.R.2d 363, 366-370; 17A Am.Jur., Divorce and Separation, § 840, pp. 33-34.

We do not minimize or brush aside the difficulty in obtaining reliable information which is also competent evidence in a case of this kind. We are also aware that the able and conscientious trial judge may have had full personal knowledge of the prospective stepmother’s background, character and fitness as a custodian of the child. However, that is not sufficient. So far as the record shows, the only knowledge which the court had about the plaintiff’s new wife and home came from a short affidavit. While this affidavit gave the trial court personal knowledge of a change in the plaintiff’s situation, it did not amount to proof. The trial court does have wide discretion in a case of this kind, but this discretion must be a judicial one, subject to review upon record evidence. It is elementary that the individual and extrajudicial knowledge of a judge does not dispense with proof of those facts which cannot be judicially noticed. For this reason, an award of custody cannot be made solely upon the basis of ex parte statements, nor upon the basis of the court’s personal knowledge. Because of this complete lack of proof concerning the home environment in which the child is being placed, we conclude that the judgment must be reversed and the cause remanded so the trial court may hear such evidence as is available concerning the plaintiff’s present home situation, though we do not mean by anything we say to limit the scope of his inquiry into the present circumstances of both parties.

The judgment is therefore reversed and the cause remanded for action not inconsistent with the views herein expressed.

RUARK, P. J., and STONE, J., concur.

      . Seymour v. Farrell, 51 Mo. 95, 97; Goodfellow v. Landis, 36 Mo. 168, 171; Tayon v. Ladew, 33 Mo. 205, 210; Crenshaw v. Pacific Mutual Life Ins. Co., 71 Mo.App. 42, 53.

      . Hoyberg v. Henske, 153 Mo. 63, 74, 55 S.W. 83, 86, signatures of the witnesses, notice of taking of deposition, and authentication by notary, matters of form which are waived in absence of timely motion to suppress; Bell v. Jamison, 102 Mo. 71, 76, 14 S.W. 714, 715, defective notice, waived by failure to file timely motion to suppress; Empire Dist. Electric Co. v. Johnston, 241 Mo.App. 759, 763-764, 268 S.W.2d 78, 80-81 [1, 2], disqualification of notary on ground he was party’s attorney waived when no objection made up to time of trial; State ex rel. Ford v. Itudolph, Mo.App., 29 S.W.2d 199, 200 [3, 4], propriety of granting continuance in taking depositions a question of error, to be raised by motion to suppress; Hutchens y. Wagner, Mo.App., 274 S.W. 105, 106 [1], objections for irregularity in taking of a deposition should be made promptly and before trial; Abbott v. Marion Mining Co., 112 Mo.App. 550, 554, 87 S.W. 110, 111, testimony taken by stenographer when notary was absent, waived by failure to move to suppress before trial. Cf. Moore v. Keesey, 26 Wash.2d 31, 173 P.2d 130, 140-141 [9], power of resident notary to act out of state must be tested by motion before trial. See also 16 Am.Jur., Depositions, § 93, p. 738.

      .L-v. N-, Mo.App., 326 S.W. 2d 751, 756; E- v. G-, Mo. App., 317 S.W.2d 462, 467 [1]; S-v. G-, Mo.App., 298 S.W.2d 67, 77 [14]; Shepard v. Shepard, Mo.App., 194 S.W.2d 319, 328.

      . Dansker v. Dansker, Mo.App., 279 S.W. 2d 205, 209-210 [6]; Hensley v. Hensley, Mo.App., 233 S.W.2d 42; Rex. v. Rex, Mo.App., 217 S.W.2d 391, 394 [4]; 17A Am.Jur., Divorce and Separation, § 843, p. 35.

      . C-v. B-, Mo .App., 358 S.W. 2d 454, 460; In re S-, Mo.App., 306 S.W.2d 638, 641 [2, 3]; Daugherty v. Nelson, 241 Mo.App. 121, 141, 234 S.W.2d 353, 365; Ex parte DeCastro, 238 Mo.App. 1011, 1028, 190 S.W.2d 949, 959.

      . Jenks v. Brown, 250 Ala. 534, 35 So.2d 359; Rust v. Trapp, Iowa, 201 N.W. 565, 566 [3]; Hardman v. Hardman, 308 Ky. 284, 214 S.W.2d • 391, 392-393; Hild v. Hild, 221 Md. 349, 157 A.2d 442, 446 [2, 3]; Osborn v. Osborn, 143 Neb. 1, 8 N.W.2d 444, 445 [2]; Griffith v. Griffith, 240 N.C. 271, 81 S.E.2d 918, 921 [1, 2]; Clemens v. Clemens, 20 N.J.Super. 383, 90 A.2d 72, 77 [9]; Thalassinos v. Thalassinos, Sup., 77 N.Y.S.2d 311, 314, aff’d. 274 App.Div. 807, 81 N.Y.S.2d 155; Hill v. Hill, 257 Wis. 388, 43 N.W.2d 455, 457-458 [6]; 27B C.J.S. Divorce § 309 (5), p. 463.

      . Walker v. Eldridge, 219 Ark. 594, 243 S.W.2d 638, 639 [1, 2]; Cohn v. Scott, 231 Ill. 556, 83 N.E. 191, 192; Wacker v. Wacker, 279 Ky. 19, 129 S.W.2d 1043, 1045 [4, 5]; Laurance v. Laurance, 198 Or. 630, 258 P.2d 784, 787 [1]; Darnell v. Barker, 179 Va. 86, 18 S.E.2d 271, 274 [3] [4, 5]; 2 Nelson, Divorce and Annulment, § 15.48, pp. 252-254 (2d ed. 1945).


author: STONE, Judge.

text:
    Clara Ruby NYE, a minor, by her mother and next friend, Mrs. Ben Moore, Plaintiff-Appellant, v. Gloria JAMES, Defendant, Farmers Mutual Automobile Insurance Company, Garnishee-Respondent.
    No. 8180.
    Springfield Court of Appeals. Missouri.
    Dec. 16, 1963.

      Fred S. Selsor, Kansas City, for plaintiff-appellant, Murvyl M. Sullinger, Pittsburg, Kan., Kuraner, Freeman, Kuraner, Ober-lander & Lamkin, Kansas City, of counsel.
    E. E. Thompson, Kansas City, William E. Haney, Topeka, Kan., for garnishee-respondent, Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel.
   STONE, Judge.

Garnishment. Following a jury-waived trial on March 22, 1960, in the Circuit Court of Barton County, plaintiff Clara Ruby Nye, pro ami, obtained a judgment for $50,-000 against defendant Gloria James, a minor residing in Mulberry, Kansas (just west of the Barton County, Missouri-Crawford County, Kansas, line), for personal injuries sustained by plaintiff as the result of a vehicular collision on July 30, 1959, on U. S. Highway 69 near Fort Scott, Kansas, which involved a 1953 Ford sedan (hereinafter referred to as the Ford) then being driven by defendant Gloria in which plaintiff Clara was riding. Ownership of the Ford was evidenced by a Missouri certificate of title issued under date of July 1, 1957, to “Earl W. Long and/or Nancy Long, tenants by entirety” of Kansas City, Missouri. Policy No. 24-070486 of Farmers Mutual Automobile Insurance Company (hereinafter referred to as the policy), issued to “Nancy W. Long” as “named insured” for an initial policy period of six months from October 13, 1957, to April 13, 1958, and thereafter renewed for successive six-month periods, was in effect on the date of accident and, under Part I thereof, obligated Farmers Mutual “to pay on behalf of the insured all sums [within the then policy limits of $5M/$10M/$5M] which the insured shall become legally obligated to pay as damages” because of bodily injury or property damage “arising out of the ownership, maintenance or use of the owned automobile,” to wit, the Ford. (All emphasis herein is ours.) That portion, here material, of the so-called omnibus clause of the policy provided that “the following are insureds under Part I: (a) With respect to the owned automobile, (1) the named insured and any resident of the same household, (2) any other person using such automobile, provided the actual use thereof is with the permission of the named insured . .

Acting' under a general execution issued on the aforesaid judgment, plaintiff initiated this garnishment proceeding against Farmers Mutual, as garnishee. Rule 90; Chapter 525. (All references to rules are to the Rules of Civil Procedure, V.A.M.R.; and all statutory references are to RSMo 1959, V.A.M.S.) The sole issue framed by plaintiff’s denial of the garnishee’s answers to interrogatories and by the garnishee’s reply to said denial [Rule 90.18; Sec. 525.190; Rainwater v. Wallace, 351 Mo. 1044, 174 S.W.2d 835, 839(9); South Central Securities Co. v. Vernon, 227 Mo.App. 486, 54 S.W.2d 416, 421(1)] and presented in the jury-waived trial by the circuit court, was whether defendant Gloria was an “insured” within the contemplation and meaning of the omnibus clause of the policy or, as that issue is put plainly and precisely in plaintiff’s-appellant’s brief, whether defendant Gloria was, at the time of accident, using the Ford with the permission of Nancy W. Long, the “named insured” in the policy. The circuit court resolved that issue in the negative and thus in favor of garnishee. Upon this appeal by plaintiff, we have appellate jurisdiction because the amount in dispute, exclusive of costs, is $5,000 [Const, of 1945, Art. 5, Secs. 3 and 13, V.A.M.S.; Sec. 477.040], that being the maximum limit of garnishee’s potential liability for bodily injury to one person.

Earl W. Long and Arlie James were cousins. Arlie and his family, including his daughter Gloria (defendant herein), resided in Mulberry, Kansas. For some two years after Earl W. and Nancy W. Long were married in 1950, they lived in Burgess, Missouri, just across the state line from Mulberry. When they moved from Burgess, the Longs settled in Kansas City, Missouri, and there lived as man and wife until their separation in September 1958. On December 3, 1958, Nancy was granted a decree of divorce, custody of three minor children, and child support.

During October 1957, Nancy called one Garth Peck, an agent of Farmers Mutual, concerning insurance coverage on the Ford; and, in response to that call, Peck went to the Long home and, after some discussion, took from Nancy a signed application for issuance of a policy to her. The application stated that she would drive the insured automobile “100%” of the time; and, as we have noted, the policy subsequently was issued to her, as the sole “named insured.” However, the fact that the application showed that Nancy was married and a “housewife” prompted the underwriting department of Farmers Mutual to obtain an independent report, which tended to explain, as well as confirm the truth of, the application in that it disclosed that Earl, then thirty-three years of age, did not drive and had “no apparent desire to do so although unimpaired and capable of learning.” At the trial on December 28, 1961, Earl frankly stated that he did not drive in October 1957, when the policy was issued; and, although suggesting that he then (in 1957) was “just learning” to drive, he quickly conceded that, at the time of trial, he still had not taken the examination for a driver’s license and did not have one.

About December 3, 1958, the date of entry of the decree of divorce, Earl and Nancy entered into an oral property settlement agreement. As Nancy stated it upon trial, “there were payments to be made on the household furnishings because they were mortgaged to buy the car and so we made an agreement between ourselves that I would keep the household furnishings and make the mortgage payments on them and he [Earl] would keep the car and make the payments on it.” There was no dispute about the terms of this oral agreement, Earl confirming it in similar language. However, he did not take possession of the Ford when the agreement was reached or the decree of divorce was entered. Because he had no place to park it at the location to which he moved, he told Nancy to keep the Ford at her home until he called for it. She did this, using it as she had previously. Several months later on a date not fixed precisely by the evidence but which Earl thought was around “the last of April or first of May” 1959, he called Nancy and asked that she bring the Ford to him by the following Friday evening. In compliance with this request, Nancy parked it in front of Earl’s place of residence and left the keys with his landlady. In the interim between the date of entry of the decree of divorce and Earl’s request for possession of the Ford, the policy had come up for renewal and Nancy, from her personal checking account, had paid the premium for the next six-month policy period from April 13 to October 13, 1959. Neither Earl nor Nancy executed the assignment on the reverse side of the certificate of title to the Ford (issued, as we have observed, to “Earl W. Long and/or Nancy Long, tenants by entirety”), which said certificate of title, at all times herein material, remained in the possession of a finance company.

Nancy stated that, when Earl called for the Ford, “he said he wanted to take it and keep it” — “he told me he was going to take it to Mulberry and have Arlie [James] do some work on it.” Earl likewise testified that “I told her [Nancy] I was going to take it to Mulberry” — “I was going to have some work done on it” by Arlie James. A short time later, Earl thought “the weekend of Decoration Day” 1959, he took the Ford to Mulberry and left it with Arlie. As to the “arrangements” between Earl and Arlie at that time, Arlie said “there was a little agreement; he [Earl] brought it down and said he wanted to leave it and get it out of the city and he wanted me to do a little work on it for him . . . .” The Ford thereafter remained in Mulberry until the date of accident, to wit, July 30, 1959. On that date, Gloria James (then twenty-five days short of her nineteenth birthday) had intended to take her father’s (Arlie’s) automobile for a trip to Fort Scott; but “there was something wrong with it,” so Arlie directed Gloria (without any request on her part) to take the Ford.

As a prerequisite to their principal contention (i. e., that Gloria was, at the time of accident, using the Ford with Nancy’s permission), plaintiff’s counsel make the prefatory assertion that, since there had been no assignment of the certificate of title to the Ford, Nancy remained “a co-owner” of that vehicle after possession thereof had been delivered to Earl pursuant to the oral property settlement agreement, and that, as such “co-owner,” Nancy had legal capacity and power to grant “permission” for use of the Ford, within the contemplation and meaning of the omnibus clause in the policy. Cf. Haynes v. Linder, Mo.App., 323 S.W.2d 505, 510(6).

Actually, the effect of the divorce decree of December 3, 1958, upon the title to the Ford was to convert the tenancy by the entirety into a tenancy in common and to vest each of the divorced spouses with an undivided one-half interest in the Ford. Durr v. Vick, Mo., 345 S.W.2d 165, 169(4); Gardine v. Cottey, 360 Mo. 681, 230 S.W.2d 731, 738(5), 18 A.L.R.2d 1100; Mack v. Mack, Mo.App., 286 S.W.2d 385, 388(1). If (as is by no means clear from the record) the parties to the oral settlement agreement had undertaken thereby to convey legal title to the Ford to Earl, the agreement certainly would have been ineffectual to have accomplished that purpose. Sec. 301.210; Kelso v. Kelso, Mo., 306 S.W.2d 534, 538-539(5,6), 71 A.L.R.2d 258; M.F.A. Cooperative Ass’n. of Mansfield v. Murray, Mo.App., 365 S.W.2d 279, 286, and cases cited in footnote 5. Nevertheless, it was competent for Earl and Nancy, as tenants in common, to agree that one of them should have sole or exclusive possession of the Ford [86 C.J.S. Tenancy in Common § 25, loc. cit. 384; Slade v. Louis Hornick Co., 189 Misc. 104, 71 N.Y.S.2d 302, 303(2); Stanley v. Cox, 253 N.C. 620, 117 S.E.2d 826, 836(11); Garrett v. McAtee, 195 Ark. 1123, 115 S.W.2d 1092]; and this they undoubtedly did. As we commented in Allstate Insurance Co. v. Hartford Acc. & Ind. Co., Mo.App., 311 S.W.2d 41, 47, “we have no doubt that in a proper transaction the legal title of a motor vehicle may be separated from the right of possession and, for that matter, the right of control of such vehicle.”

The general rule is that a tenant in common who has actual possession of indivisible personalty not susceptible of joint and equal possession may retain possession to the exclusion of his cotenant or cotenants. 14 Am.Jur., Cotenancy, § 23, loe. cit. 94; id., § 24, p. 95. See McNabb v. Payne, Mo. App., 280 S.W.2d 864, 866(1); McDowell v. Hollingsworth, Mo.App., 10 S.W.2d 314, 315(1); Farmers’ Sav. Bank v. American Trust Co., Mo.App., 196 S.W. 35, 37(4); 77 C.J.S. Replevin § 49, p. 34. Accordingly, since “permission” generally “carries with it the necessary aspect of the right, power, or privilege to give or to withhold the grant of license embodied in the term” [Allstate Insurance Co., supra, 311 S.W.2d loe. cit. 45, and cases cited in footnote 1], we are inclined to agree with counsel for instant garnishee that, after the Ford was delivered into the sole and (as against Nancy) exclusive possession of Earl pursuant to the oral property settlement agreement, Nancy would have had no legal right or power to have granted to others “permission” to use the Ford.

However, we need not and do not rest our disposition of the appeal on that premise. For, if it be conceded (for the purposes of this opinion) that Nancy still had the right and power to grant “permission” (within the contemplation and meaning of the omnibus clause) for use of the Ford after Earl had taken sole and exclusive possession of it, we are satisfied that the record before us reasonably permitted and justified the conclusion of the trial court that there was no grant of permission by Nancy to defendant Gloria. We recognize that, as counsel for instant plaintiff emphasize, the permission contemplated by the omnibus clause may be either express or implied from the conduct of the person (or persons) having the right and power to grant such permission. Varble v. Stanley, Mo.App., 306 S.W.2d 662, 666 (4); Haynes, supra, 323 S.W.2d loe. cit. 510 (8); M.F.A. Mutual Ins. Co. v. Alexander, Mo.App., 361 S.W.2d 171, 179, 180. But we must bear in mind also that “the permission contemplated is something more than mere sufferance or tolerance without taking steps to prevent” [Haynes, supra, 323 S.W.2d loc. cit. 510(8); M.F.A. Mutual Ins. Co., supra, 361 S.W.2d loc. cit. 179, 180], and that “no implied permission can arise merely because someone obtained possession of the property and used it without the knowledge of the named insured.” Varble, supra, 306 S.W.2d loc. cit. 666(5); M.F.A. Mutual Ins. Co., supra, 361 S.W.2d loc. .cit. 179.

There is no contention that Nancy gave .express permission to defendant Gloria to .drive the Ford, but plaintiff’s position is .that a case of implied permission was made ■“initially through the unrestricted and unqualified delivery of the automobile to Earl [Long to be taken to Burgess, Missouri, and io be used by the James family and subsequently through Nancy Long’s knowledge for over two months of the fact of the automobile being at Burgess, Missouri, and being used by the James family coupled with the social relationship between the parties .and the fact of no objection to its continued use by the James family.” However, there was no evidence that, when Nancy delivered the Ford to Earl, she was informed, or bad any reason to believe, that it was “to be used by the James family.” On the contrary, the record is clear that Earl then said no more than that he intended to take the Ford to Mulberry to “have Arlie '[James] do some work on it.” And the evidence falls far short of showing satisfactorily and convincingly that Nancy thereafter knew, or had reason to believe, at any time .prior to the accident of July 30, 1959, that the Ford was “being used by the James .family.”

In fact, the trial court reasonably could have found that defendant Gloria had never driven the Ford prior to the ill-fated journey of July 30. For, although Gloria’s father, Arlie, a willing witness for plaintiff in this proceeding, testified that Earl actually had seen Gloria driving the Ford prior to July 30, and although Earl, likewise a witness for plaintiff, thought that Gloria “once or twice before” had driven the Ford “a short distance,” the inescapable import of the testimony of defendant Gloria, who certainly should have been knowledgeable on this subject, was that she had never driven the Ford prior to July 30. This was her testimony: “Q. Had you operated this automobile on other occasions, other than on the date of this accident? A. Not that I can recall, no. Q. You might have operated this automobile? A. I don’t believe so.” Arlie owned an automobile which apparently was used by members of his family, including Gloria; and, as Gloria disclosed, but for the fateful circumstance that “there was something wrong with it” the morning of July 30, she would have been driving her father’s automobile, and not the Ford, when the crash occurred.

We have not overlooked Arlie’s testimony that, when the Ford was left with him, Earl said to “drive it just like it was my own; he didn’t care who drove it just as long as they was [sic] licensed operators” and “in the family,” and Earl’s testimony that “he [Arlie] just asked if it would be all right if they used it and I said ‘yes’ ” — “I didn’t have any particular one in mind, I mean, just any of them I thought was all right.” But, in determination of the instant proceeding, it is not material or significant whether Earl granted permission, express or implied, to defendant Gloria for use of the Ford. This, because Earl was not a named insured in the policy; and, for defendant Gloria to have been an “insured” under the policy, it was essential for her use of the automobile to have been “with the permission of the named insured,” i. e., Nancy.

Nor have we overlooked this testimony ¡by Earl, to which plaintiff’s counsel attach ■importance: “Q. . . . [d]id you tell her [Nancy] during that period of time [i. e., in the interim from delivery of the Ford into Earl’s possession to July 30] where the car was? A. Yes, I had told ¡her. Q. And who was driving it? A. Yes.” We are unwilling to read into the generalized language of the latter question (put by plaintiff’s counsel on direct ex.amination) and the simple affirmance of the answer the implication that Earl had told Nancy that members of Arlie’s family, including defendant Gloria, were driving the Ford; and this is particularly so when Gloria herself testified that she had not ■driven the Ford prior to July 30, and when there was absolutely no evidence that any member of Arlie’s family, other than Arlie himself, had driven that vehicle. Furthermore, the gist of Nancy’s testimony on this subject was that she had had no knowledge that defendant Gloria had driven the Ford, until Gloria’s mother had informed her (Nancy) of the accident. So, in any event, Earl’s quoted testimony could have done no more than to have raised an issue of fact as to Nancy’s knowledge vel non, prior to July 30, of defendant Gloria’s use of the Ford, which issue reasonably might have been resolved in the negative and thus against plaintiff.

In urging “the social relationship between the parties” as a factor tending to support their theory of implied permission, plaintiff’s counsel refer to the fact that, while Earl and Nancy were married, they visited from time to time in the James home and, in turn, were visited by members of the James family. But, certainly no significance can be accorded to this when it stands uncontradicted in the record that there had been no contact whatever between Nancy and the James family, who were her husband’s relatives, for about one year prior to the date of accident, and that Arlie admittedly knew, when the Ford was left with him, that Earl and Nancy had been divorced.

Plaintiff’s counsel lean heavily upon Haynes v. Linder, Mo.App., 323 S.W.2d 505; but they overlook the basic and distinguishing fact that, in the language of that opinion, “wider the undisputed facts it appears that [defendant] Linder’s possession of and right to drive the [insured] automobile . . . was by and with the consent of Bacus [the owner of the automobile and the named insured in the policy covering it], who we hold had the power to consent and who having been advised that Linder was driving the car, acquiesced and agreed that Linder could continue to drive the car.” [323 S.W.2d loe. cit. 512] It should be noted also that the case at bar is not one in which permission to use the insured automobile, at least for a certain purpose, had been granted by the owner and named insured to the operator at the time of accident, and in which the determinative dispute was as to the extent of use contemplated and permitted. Contrast Winterton v. Van Zandt, Mo., 351 S.W.2d 696.

Although, in this court-tried case, we “review the case upon both the law and the evidence as in suits of an equitable nature” [Rule 73.01(d); Sec. 510.310 (4)], the same antecedent statute and superseding rule direct that “[t]he judgment shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” We find the conclusion inescapable that the trial court reasonably could have found, as it did specifically, that Nancy, the named insured, “did not, expressly or impliedly, permit defendant, Gloria James, to use the [Ford] automobile.” Accordingly, it becomes our plain duty to affirm the judgment for garnishee. It is so ordered.

RUARK, P. J., and HOGAN, J., concur.