Burgess v. Burgess
| Decision Date | 05 November 1945 |
| Docket Number | No. 20624.,20624. |
| Citation | 190 S.W.2d 282 |
| Parties | BERNICE BURGESS v. BYRON BURGESS. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Clay County. — Hon. James S. Rooney, Judge.
REVERSED AND REMANDED.
Francis G. Hale for appellant.
(1) The trial court abused its discretion (if any) in not sustaining appellant's motion for stay as required by the Soldiers' and Sailors' Relief Act, Section 521, Title 50, U.S.C.A. Supp. Bowman v. Peterson, 45 Fed. Supp. 741; Boone v. Lightner (U.S.), 87 L. Ed. 1587. (2) The proceeding in question to change the custody of the child, subsequent to divorce, is a new action and requires service of notice on the party who may be adversely affected. North v. North, 339 Mo. 1226; Fernbaugh v. Clark, 236 Mo. App. 1200, 163 S.W. (2d) 999. (3) Service of notice under the facts in this case means personal service. Sec. 1437, R.S. 1939; State ex rel. v. Caldwell, 310 Mo. 397. (4) Notice to attorneys who represented appellant in the original divorce case five years before is not notice to appellant, unless the evidence affirmatively shows that such attorneys continue to represent appellant. Konta v. Stock Exchange, 150 Mo. App. 617 (623-4) Fernbaugh v. Clark, 236 Mo. App. 1200, 163 S.W. (2d) 999. (5) There is no presumption of such continued representation by attorneys, but the presumption is quite to the contrary. Konta v. Stock Exchange, 150 Mo. App. 617. (6) The burden was on plaintiff to prove the service of notice and, if she claimed that the attorneys in the divorce suit continued to represent defendant, to prove such fact. Konta v. Stock Exchange, 150 Mo. App. 617. (7) Even actual notice of the motion on the part of defendant does not dispense with the service of notice as required by law. Fernbaugh v. Clark, 236 Mo. App. 1200, 163 S.W. (2d) 999. (8) The trial court was without jurisdiction to enter the order from which this appeal is taken because no notice was served on defendant or on his parents, the legal custodians of the child. Fernbaugh v. Clark, 236 Mo. App. 1200, 163 S.W. (2d) 999; State ex rel. v. Ramey, 134 Mo. App. 722.
Alan F. Wherritt for respondent.
(1) The trial court properly exercised the discretion placed in it by overruling appellant's motion for a stay. Federal Code Annotated Appendix 9, Soldiers' and Sailors' Civil Relief Act of 1940, Article 1, Section 100, Article 2, Section 200, Paragraph 4. Boone v. Lightner, 63 U.S. Sup. Ct. 1223; Gates v. Gates, ___ Ga. ___, 28 S.E. (2d) 108, l.c. 112; Hellberg v. Warner, 319 Ill. App. 117, 48 N.E. (2d) 972; Register v. Bourquin, 230 La. 825, 14 So. (2d) 673, l.c. 674. (2) A motion to modify a divorce decree as to the custody of a child, subsequent to divorce, is a continuation of the original action and service of notice on the attorney who represents a party is sufficient. Thornton v. Thornton, 2 S.W. (2d) 821, 221 Mo. App. 1199; Laumeier v. Laumeier, 271 S.W. 481, 308 Mo. 201; St. ex rel. Shoemaker v. Hall, 257 S.W. 1047
This is an appeal from an order of the trial court modifying a prior order for the custory of the minor child of appellant and respondent.
On December 5, 1938, the court had granted a divorce to this appellant, Byron Burgess, from this respondent, Bernice Burgess, and in that decree awarded the custody of their infant child, Charles Rothwell Burgess, to Mr. and Mrs. Charles J Burgess, the father and mother of Byron Burgess. In the divorce proceeding Byron Burgess was represented by the law firm of Lawson & Hale. On September 7, 1939, the order of the court awarding the custody of the child was modified to permit the mother (respondent) to have the custody over and during the week-ends. That order continued in effect until the order was entered, of which complaint is made on this appeal.
On August 4, 1944, Bernice Burgess (respondent) served on Lawson & Hale, attorneys, a copy of her motion to modify the original divorce decree pertaining to the custody of the minor child and to her award her the custody of said child. There was attached to the motion a notice to said attorneys that the motion would be presented to the court on September 12, 1944. Among other things, the modern recited that Byron Burgess was in the military service of the United States "... and petitioner requests the court to appoint some person to represent the interests of said defendant, and petitioner states that since the custody of said child has not been granted to defendant that no ill result can come to defendant by reason of the change of custody from his parents." The court did not appoint any person to represent the interests of the defendant.
The notice served and the acknowledgment thereon are:
Received copy of the foregoing notice and motion this 4th day of August, 1944.
Lawson & Hale,
Attorneys."
Francis G. Hale, a member of the law firm of Lawson & Hale, as Chairman of the War Work Committee of the Clay County Bar, acting ex-officio, filed in said cause an univerified motion for stay for proceedings, on the ground that appellant (Byron Burgess) then was, and for more than two years next prior thereto had been, in active service in the United States Army, could not be present to assist in the hearing of said motion, and alleging that appellant had information vital to the presentation of the motion, and that such information was available from no other source, and asking that the hearing on said motion be stayed under the Soldiers' and Sailors' Relief Act. The court, on that day, overruled the motion to stay. Neither appellant nor Mr. Hale filed any further pleading to respondent's motion.
On October 14, 1944, the matter was called for hearing and Mr. Hale appeared and stated to the court: "... I am appearing in this matter as Chairman of the Bar Committee of this county for War Work and in that capacity I appear on behalf of defendant, Byron Burgess, who is a soldier in the United States Army, in active service, who cannot be present at this hearing, participate in it, aid in it by any information that he has, and I ask the Court to stay this proceeding for that reason under the provisions of the Soldiers and Sailors Relief Act." The request was denied and the cause ordered to trial. Mr. Hale remained and participated in the cross-examination of respondent's witnesses and also called Mrs. Charles Burgess as a witness.
At the conclusion of the hearing the court found that the circumstances existing at the time of the granting of the divorce to Byron Burgess and the placing of the custody of the infant child in Mr. and Mrs. Charles Burgess, had changed and that it would be to the best interest of said child for him to be placed in the custody of his mother and entered judgment accordingly, with the right in Byron Burgess and Mr. and Mrs. Charles J. Burgess to visit with and see said infant child at all reasonable hours and times.
Since the appellant does not question the sufficiency of the evidence to support the order of the court in so far as Bernice Burgess, the mother, being a fit and proper person to have the custody of the minor child, we deem it unnecessary to lengthen the opinion by detailing such evidence.
There are but two vital questions presented on appeal: (1) Was the service of the notice on Lawson & Hale, attorneys of record in the original divorce proceedings, sufficient to give the court jurisdiction of the appellant for the purpose of modifying that decree, and (2) did the trial court abuse its discretion in refusing to stay the proceeding because appellant was in the military service and could not be present at the hearing?
It is the settled law of this state that a court can, at a subsequent term, modify a divorce decree pertaining to the custody of minor children if a proper notice is given to the person to be adversely affected by such modification. [Thornton v. Thornton, 221 Mo. App. 1199, 2 S.W. (2d) 821; Laumeier v. Laumeier, 308 Mo. 201, 271 S.W. 481; Fernbaugh v. Clark, 236 Mo. App. 1200; North v. North, 339 Mo. 1226.] A motion for such modification "is in the nature of an independent proceeding, and the motion is treated as a petition in an original action." [North v. North, supra, 1236, and cases cited.] This does not mean a summons in the usual form must be issued and served but only that reasonable notice be given. The notice...
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