Bell v. Catholic Charities
| Decision Date | 30 April 1943 |
| Docket Number | No. 26428.,26428. |
| Citation | 170 S.W.2d 697 |
| Parties | BELL v. CATHOLIC CHARITIES OF ST. LOUIS (BELL, Intervener). |
| Court | Missouri Court of Appeals |
Mortimer A. Rosecan, of St. Louis, for petitioner.
Louis A. McKeown, of St. Louis, for respondent.
Paul Dillon, of St. Louis, for intervenor.
This is an original proceeding in habeas corpus instituted by the mother Eugenia Bell for the custody of her minor son, Charles Bell, aged four years.
On November 1, 1939, a divorce was granted Eugenia Bell on her cross-bill in a divorce action instituted by her husband Herbert Bell. The divorce decree awarded the care, custody and control of Charles, then five months of age, to the mother, until the further order of the court.
Thereafter, on December 2, 1939, pursuant to stipulation of the parties, the divorce decree was modified to the effect that from the date thereof the temporary custody of the minor child be turned over to the care of the Catholic Charities of St. Louis. The stipulation on which this order was based provided as follows:
Thereafter, on February 18, 1943, Herbert Bell filed a motion in the circuit court asking that the decree entered on November 1, 1939, be modified; the motion alleging that by a voluntary stipulation temporary custody of the child was by both parties given to the Catholic Charities, with the understanding that said Catholic Charities would place the child in a Catholic home; that the child was placed in the home of a Catholic family named Luecke; and the motion asked that the decree be modified so as to give the custody of the child to the Catholic Charities, and that the father be relieved of further payments of $5 per week for the support and maintenance of the child. On February 26, 1943, this motion to modify was sustained by the court, and the decree was ordered modified so that from the date of the modification the custody of the child be placed in the Catholic Charities of St. Louis until the further order of the court; the order further recited, "It is further ordered, adjudged and decreed by the court that the plaintiff be relieved of all further payments for alimony, and that from this day forthwith said payments shall cease and determine, said defendant having remarried since said decree in above entitled cause." The order further recited, "It is further ordered by the court that in all other respects the original decree of divorce and as subsequently modified, remains in full force and effect, and that the unpaid costs of this proceeding be paid by the plaintiff, and that execution issue therefor."
Thereafter, on March 1, 1943, the defendant in the divorce case, the mother of the child, filed a motion for a new trial of plaintiff's motion to modify the decree, which was overruled on April 5, 1943.
Before the modification order of February 26, 1943, and on February 16, 1943, the Catholic Charities, at the request of the mother, and without permission from the court, relinquished and gave unto her the care, custody and control of the child, but after that order was made the child was returned to the Catholic Charities in whose charge it has since remained.
The mother has instituted this proceeding. The father, Herbert Bell, has, with our leave, filed a return as an intervener wherein after reciting the facts as we have outlined them above, he pleads that this court has no jurisdiction as to the custody of the child and that the child's custody is under the sole control of the circuit court, and that the mother's sole remedy, if dissatisfied with the circuit court's order, is by appeal.
The return of the Catholic Charities of St. Louis is that it is a charitable corporation; that it has had the custody of the child since December 2, 1939, on which date the child was turned over to its temporary custody for placement in a supervised home, under a stipulation signed by the mother and father and filed in the circuit court; that it proceeded to place the child in the home of Mrs. Anthony Luecke, and on February 16, 1943, on demand of petitioner the minor was given to her, and that on February 26, 1943, the circuit court ordered the custody of the child placed in the respondent until the further order of the court, and that since said order the minor has been placed in the home of Mrs. Luecke, and that respondent now produces the child before this court, to be dealt with according to law.
We have before us the case of a mother seeking the care and custody of her minor child by habeas corpus. That as against some third party or an institution, such as respondent, the claim of the mother to the custody of her minor child is paramount, has been the settled law from time immemorial, unless it be established that the mother is morally unfit to have such custody, or for cogent reasons is unable to properly care for her child. Even as between the father and mother, where each seeks the custody, while no presumption can be indulged in favor of one as against the other, yet the custody of a child of tender years will be given to the mother as against the father, all else being...
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