Barrett v. Barrett

• Decision Date: 28 February 1935
• Docket Number: No. 18390.,18390.
• Citation: 79 S.W.2d 506
• Court: Missouri Court of Appeals
• Parties: BARRETT v. BARRETT.

79 S.W.2d 506

BARRETT v. BARRETT.

No. 18390.

Kansas City Court of Appeals. Missouri.

February 28, 1935.

"Not to be published in State Reports."

Proceedings by Emma L. Hunter, in which Lillian Barrett was substituted as petitioner, for a writ of habeas corpus to recover custody of Luella Barrett, an infant of the age of five years, from Loren Barrett.

Judgment in accordance with opinion.

Garnett & Quinn, of Kansas City, for petitioner.

R. B. Kirwan, of Kansas City, for respondent.

TRIMBLE, Judge.

The writ of habeas corpus, out of which this case arises, was issued by one of the judges of this court in vacation, but by the time it was executed and return made and the case was set for hearing, on a day on which, and thereafter, the court would be in session, the judge issuing the writ in vacation made an order placing it before the court, and the matter was thereafter heard on the final day set for hearing, in accordance with the agreement of all parties, the petitioner, Lillian Barrett, and the so-called respondent, Loren Barrett, and their respective counsel.

It appears that respondent and petitioner were formerly husband and wife; and Luella Barrett, aged about five or six years, the custody of whom is sought to be obtained by the writ herein, is the sole offspring of their marriage; that on the 26th day of January, 1934, the petitioner, Lillian Barrett, then living in Bourbon county, Kan., filed suit for divorce from said Loren Barrett and asking for the custody of the child, in the district court of Bourbon county, Kan., and obtained service by publication upon her husband, the said Loren Barrett, defendant in the divorce case and respondent in this habeas corpus matter; and that on the 24th day of December, 1934, the said district court of Bourbon county, Kan., after examining the papers and pleadings in said divorce case and hearing the evidence therein, found that plaintiff in that action had been an actual resident in good faith of the state of Kansas for more than one year next preceding the filing of her petition, and was, at the time of such filing, and at the time of the hearing of the divorce suit, an actual resident of said Bourbon county, in said state. And the court also found that the defendant had been duly and legally summoned and advised of the pendency of this action, by publication summons, and that plaintiff appeared in person and by attorney, but defendant came not, either in person or by attorney, and that he was in default for want of answer or other pleading filed therein. And the court further found that plaintiff and defendant were legally married on the 17th day of June, 1928, in Kansas City, Mo., and that to said union one child, a daughter, was born, to wit, Luella Barrett, then a child 5 years of age. And said court further found that plaintiff performed her duty as the wife of said defendant, with no fault on her part, but that defendant, disregarding his marriage vows and obligations, had been guilty of gross neglect of duty to and towards plaintiff; that plaintiff's allegation in her petition in support of her prayer for divorce is true; and that she is entitled to the relief prayed for.

The said district court of Bourbon county, Kan., thereupon rendered its decree divorcing the said plaintiff therein from the defendant, Loren Barrett, "and that the bonds of matrimony heretofore existing between said parties be dissolved, set aside and held for naught; and that the plaintiff, Lillian Barrett, have the care, custody and control of the minor child of the parties, Luella Barrett * * * and $10 per month for the support and maintenance of said minor, the first payment thereof to be made on or before January 1, 1935, and a like amount on or before the first day of each month thereafter until the further order of the court." It was further ordered by said court that it retains jurisdiction in said case to make such other and further orders and until said child should attain the age of 21 years.

The evidence further shows, in this habeas corpus proceeding, that no attempt has been made to appeal from, modify, or change said decree; that said Loren Barrett, father of said child and respondent herein, did, on the 7th day of February, 1935, obtain possession of said child Luella Barrett, without the consent and against the will of its mother, and while the marshal of this court with the writ of habeas corpus in his hands was seeking said child, carried it away, by a devious route in a taxicab to Dodson, in Jackson county, Mo., thence by train to Paola, Kan., and from there to his parents' home at Billings, in Christian county, Mo.; that the marshal of this court, with the writ herein issued, found the said child in Billings, Mo., and exhibited the writ to its father, the respondent, Loren Barrett, and, in order to satisfy him that said officer was in fact the marshal of this court, it was agreed between them that said respondent come with the child to Kansas City in the marshal's automobile. They thereupon started to Kansas City in the car, the child Luella Barrett sitting in her father's lap until they reached Nevada, in Vernon county, Mo., at which place the father, Loren Barrett, proposed to go by way of Fort Scott, Kan., which he said was only fifteen miles away, and he would pay the added expense therefor. The proposition and offer were declined by the marshal, whereupon the respondent, Loren Barrett, surrendered possession of the child to the marshal at Nevada, in Vernon county, Mo., and left the car saying he was going to Fort...