Brenneman v. Hildebrandt
| Decision Date | 17 May 1909 |
| Citation | 119 S.W. 452,137 Mo.App. 82 |
| Parties | FRANK E. BRENNEMAN, Appellant, v. NETTIE HILDEBRANDT, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Linn County Circuit Court.--Hon. John P. Butler, Judge.
AFFIRMED.
Judgment affirmed.
Lewis A. Chapman for appellant.
(1) The decree in the divorce suit was not appealed from and is final and conclusive between the parties as to all matters adjudicated by it, one of which was that the appellant was the injured and innocent party and entitled to the custody of the two children he had in his charge and under his control. By virtue of the statute, section 2932, Revised Statutes 1899, the decree in respect of the custody of the children may be changed at a subsequent term. Such change, however, is not within the mere discretion of the court, but can only be made on proof of new facts; without the new facts, the court is powerless to make a charge. West v. West, 94 Mo.App. 686; Deidesheimer v. Deidesheimer, 74 Mo.App. 234; Bishop on Marriage, Divorce and Separation sections 877, 1188, 1198; Semrow v. Semrow, 23 Minn 214; Peterson v. Thomas, 28 Ohio St. 596; Olney v. Watts, 43 Ohio St. 499; Widle v. Widle, 36 Iowa 319; Du Bois v. Johnson, 96 Ind. 6; Chandler v. Chandler, 24 Mich. 176. (2) The motions or applications in this case, are in the nature of petitions for a review of the judgment in the divorce, so far as the custody of the children are concerned, and were insufficient for the reason that they should be sworn to and were not. R S. 1899, secs. 780, 2932; Myers v. Myers, 91 Mo.App. 157. (3) The father is the natural guardian of his children, not only in the feudal sense, applicable to a father of an heir apparent, whose guardianship terminated when the heir attained the age of fourteen, but in the natural and popular sense, which ascribes to him the duty and right to guard, maintain and educate his child during infancy. The relationship of parent and child is a strong and powerful tie; the proper regard for and sanctity of which is necessary for the cohesion of States as well as for families. In recognition of this law of nature, the common law of England and numerous English and American statutes designate the father as the guardian of his children, bound on the one hand to maintain, protect and educate them, and entitled, on the other hand, to their custody and control during their infancy. The American Law of Guardianship (Woerner), section 7, p. 18; Campbell v. Campbell, 76 Mo.App. 400; Messenger v. Messenger, 56 Mo. 329. (4) The father of infant children, when there is no sufficient cause for depriving him of the right, has the legal right to the custody and control of such children. It is not enough to consider the interest of the children alone; and, as between father and mother or other near relative of the children, where sympathies of the tenderest nature may be relied on, the father is generally to be preferred. Hernandez v. Thomas, 2 L. R. A. (New Series), 203, 39 So. 641; Verser v. Ford, 37 Ark. 27. (5) The judgment or order in this case is not a proper exercise of whatever discretion the court may have in such cases. It does not find that the father is morally or otherwise unfit to have the care and custody of the children; on the contrary the court finds that he is, by providing in the order or judgment, that the respondent shall have them for one year, then the appellant for one year, and the court has no right to send the children out of the jurisdiction of the court; by so doing the court has deprived itself of the power to make future orders for the care, custody and control of the children. This decree or order places these children in charge of a stepfather and their mother, who are under no legal obligation to care for or support them. Jennings v. Jennings, 85 Mo.App. 290; Edwards v. Edwards, 84 Mo.App. 554. (6) We claim that the decree of divorce granted in favor of the plaintiff, and also finding that he was the innocent and injured party, rendered on December 13, 1904, in which the court granted the care and custody of the children to the plaintiff is res adjudicata as to all facts to that time, and is primafacie evidence, that the plaintiff is still entitled to the custody of said children. 2 Spelling on Extraordinary Relief, sec. 1198; Church on Habeas Corpus (2 Ed.), sec. 387; 9 Ency. of Pleading and Practice, 1071; 15 Am. and Eng. Ency. of Law (2 Ed.), 213; Freeman on Judgments (3 Ed.), 324; Mercein v. People, 25 Wend. (N. Y.) 64; State v. Bechdel, 37 Minn. 360; In re Hamilton, 66 Kan. 754.
A. W. Mullins for respondent.
(1) Under the provisions of the statute of this State relating to divorce, alimony and custody of children (R. S. 1899, sec. 2926, 2932), a court in which a decree of divorce is granted retains jurisdiction of the cause after the divorce with respect to "the care, custody and maintenance of the children, or any of them." And the proceeding for the custody of the children subsequent to the divorce, and to modify and change the order in that regard as made in the decree of divorce is simply a continuation of the divorce case, and properly presented by motion in that cause. In re Gladys Morgan, 117 Mo. 249; Cole v. Cole, 89 Mo.App. 228; In re Kohl, 82 Mo.App. 442. (2) It being competent for the court in which the divorce was granted to entertain and hear a motion to review the order in the decree of divorce, as to the care and custody of the children, at any subsequent term of the court while they are of tender age, the settled rule of law is that the interest of the children is the paramount consideration for the court. In re Kohl, 82 Mo.App. 442; In re Delano, 37 Mo.App. 185; Shannon v. Shannon, 97 Mo.App. 119; Million v. Million, 106 Mo.App. 680; Lusk v. Lusk, 28 Mo. 91; Messenger v. Messenger, 56 Mo. 329. (3) The court in its order and judgment made ample provision for the enforcement of any order with respect to the care and custody of the children the court hereafter might deem proper to make.
This proceeding involves the custody of the children of the parties to the controversy. They were awarded to the defendant, their mother, and plaintiff appealed.
It appears that the parties were married in 1897. That the defendant had at that time $ 3,000 in money, with which plaintiff purchased land in Linn county but took the deed in his own name. After the birth of three girl children defendant began a suit for divorce on account of plaintiff's alleged infidelity. She also brought an action to recover her money. Before either came to trial matters were partially arranged between them so that plaintiff secured to defendant her money and she dismissed the suit for divorce though they did not again live together. It seems that the two older children were with plaintiff while the youngest was with defendant. In September, 1904, plaintiff in turn began suit for divorce on the ground of abandonment by defendant, she having gone to live with her brother in Illinois. He obtained a decree on December 13, 1904, on an order of publication, and was awarded the care and custody of the two minor children with him, Nora and Merle. Plaintiff was then, within two weeks after his divorce, married to a young woman living at his house, who was pregnant when he brought the divorce suit and gave birth to a child within five months after the marriage.
Afterwards in April, 1906, defendant filed her motion in the cause to modify the decree so as to give to her the care and custody of Nora and Merle. The motion was heard by the court in May and taken under advisement. At the December term the court ordered the case "to be continued to pass from the docket, to be reinstated for further proceedings should the...
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