Daugherty v. Nelson, 21558
| Decision Date | 20 November 1950 |
| Docket Number | No. 21558,21558 |
| Citation | 234 S.W.2d 353,241 Mo.App. 121 |
| Parties | DAUGHERTY v. NELSON. |
| Court | Missouri Court of Appeals |
Southall & Southall, Kansas City, petitioner.
W. M. Thurman, Kansas City, for respondent.
BOUR, Commissioner.
This is an original proceeding in habeas corpus, wherein the petitioner, Phillip L. Daugherty, seeks to obtain the custody of his two minor children, Darline Leona Daugherty and James Earl Daugherty. The respondent is Mrs. J. V. Nelson, the children's maternal great-aunt. The matters upon which petitioner and respondent join issue appear from respondent's return and petitioner's answer thereto.
In the return respondent states that she has custody and control of said children by virtue of (1) a decree of the district court of Douglas County, Nebraska dated December 10, 1948, whereby the children's mother was granted a divorce from petitioner and awarded custody of the children in question, and (2) letters of guardianship and curatorship granted to respondent by the probate court of Howard County, Missouri on August 18, 1949 'for the reason that said children had been abandoned by petitioner herein'; and that she has control of said children (3) for the further reason that 'she was given the General Power of Attorney over said children on the 13th day of August, 1946, by Hortense Daugherty, the mother of said children.' Respondent further states that petitioner is an unfit person to have custody of said children; that he is an habitual drunkard; that James Earl Daugherty, one of the children here involved, is crippled and in bad health and has been under the care of doctors at Mercy Hospital in Kansas City, Missouri for several years; that respondent is a fit person and the great-aunt of said children and has made regular trips to Mercy Hospital with the boy, James; that she has kept said children in school, educating and protecting them; and that she has not refused to permit the petitioner to see his children except on occasions when he came to her home under the influence of intoxicating liquor and created a disturbance. For further return respondent alleges that this court is without jurisdiction to determine the rights of the parties in this habeas corpus proceeding as the district court of Douglas County, Nebraska 'has the original jurisdiction and is the proper forum to modify this decree and determine the care and custody and the welfare of said minor children.'
In his answer to the return, petitioner admits that his former wife was granted a divorce and custody of said children by the district court of Douglas County, Nebraska on December 10, 1948, but alleges that said court was without jurisdiction to determine the custody of his children because they 'were prior to that time, at that time, and afterwards, bona fide residents of the State of Missouri, and were not domiciled in the said State of Nebraska.' The answer states that petitioner neither admits nor denies that respondent has custody of the children by virtue of letters of guardianship and curatorship issued to her by the probate court of Howard County, Missouri on August 18, 1949 'the petitioner having no notice of nor knowledge of any such proceeding and he requires strict proof thereof'; that if said probate court made such an order it was in violation of his rights as father and natural guardian of the children after they had been abandoned by their mother; that if such an order was made by the probate court, without ten days' notice to petitioner and without a finding that he was an unfit person to have custody of the children, such order is a violation of sec. 378, R.S.Mo.1939, Mo.R.S.A., and is therefore null and void; that petitioner neither admits nor denies that respondent was given 'a general Power of Attorney over said children on the 13th day of August 1946,' but alleges that if she was given such a power of attorney it is without legal force and in fraud of the paternal rights of petitioner. The answer denies that petitioner abandoned the children and avers that he has supported them from the time their mother left him in September, 1948, or thereabouts, and 'has many times demanded custody of said children from respondent'; and it denies that petitioner is an unfit person to have custody of the children, that he is an habitual drunkard, and that respondent is a fit person and is caring properly for the health and welfare of the children. It is alleged that respondent lives in the county, five miles from Fayette, Missouri; that she has no modern conveniences; that his son James has to be treated in Kansas City, Missouri and would receive better, more frequent, and less expensive treatment by reason of being domiciled in Kansas City, Missouri. The answer also denied that this court is without jurisdiction to determine the rights of the parties in this habeas corpus proceeding, and states that this court has such jurisdiction, the said children being domiciled within the jurisdiction of this court and the alleged custody award of said Nebraska court being based on fraud and misrepresentation as to the future plans for the care of the children.
Petitioner prays 'that custody and control be wrested from the respondent who wrongfully and illegally retains it and be given to this petitioner * * *; in the alternative, petitioner prays the court that a suitable person be appointed to care for said children and that such person be ordered to permit him to see said children, exercise the rights of a father over them and to set a reasonable amount that he shall contribute to their support.'
The evidence discloses that petitioner and Hortense M. Daugherty were married in Nebraska on December 4, 1936, and that two children were born of the marriage, namely, Darline Leona Daugherty, born October 25, 1937, and James Earl Daugherty, born September 18, 1943. Sometime prior to April, 1943, petitioner and his family moved to Kansas City, Missouri, where petitioner has been domiciled since that time. In May, 1945, or thereabouts, petitioner and his wife placed their children in the home and under the care of respondent who has been living with her husband on a farm in Howard County, Missouri since 1941. The children have lived with respondent most of the time since 1945 and, except as hereinafter stated, they have been in respondent's home continuously since September, 1946. The evidence tends to show that after petitioner and his wife moved to Kansas City there were times when they did not live together, but the testimony concerning these separations, if such they were, is vague and confusing. However, the evidence shows that sometime in 1948 petitioner's wife left Missouri and went to Nebraska, but the children remained with respondent in Howard County, Missouri; that the wife filed suit for divorce and custody of the children in the district court of Douglas County, Nebraska. In November, 1948, summons in that action was served on petitioner in Kansas City Missouri where he remained after the separation, but he did not appear in the action, and on December 10, 1948, by a decree of the Nebraska court, the wife was granted a divorce and custody of the children.
Mrs. Hortense Keller, the petitioner's former wife and the mother of the children in question, testified as a witness for respondent. She stated that at her request respondent took the children to Omaha, Nebraska about a week before the above mentioned decree was rendered and that respondent and the children were in the courtroom at the time of the hearing. She denied that she testified at the hearing that the children had been living with her in Nebraska, and stated that she told the judge the children had been living with respondent in Missouri and requested permission to place them in the home and under the care of respondent. According to the mother's testimony such permission was granted by the Nebraska court and respondent took the children back to her home in Missouri a few days after the hearing. She said the children had lived with respondent since that time, but that after they returned to Missouri, respondent and the children spent several week-ends with her in Omaha; that she left Nebraska in the spring of 1949 and afterwards remarried; and that she resided with her second husband in the state of California. This testimony was corroborated by that of respondent. Petitioner testified that if the children were in Nebraska at the time the divorce case was heard or at any other time after their mother went to Nebraska, they were there without his consent or knowledge.
At the outset we are confronted with the question of whether this court has jurisdiction to determine the custody of the children in question. Respondent's theory is that the Nebraska decree gave the mother custody and control of the children and the right to place them in the home of respondent in Missouri; that the decree is conclusive as to petitioner's right to custody and, therefore, that this court is without jurisdiction to determine the custody of the children in the habeas corpus proceeding. Petitioner contends that the Nebraska court was without jurisdiction to make the custody award as the children were not domiciled in or residents of Nebraska at the time the decree was rendered, but were domiciled and residing in Missouri; that the children are now domiciled and residing within the jurisdiction of this court and, therefore, that this court has jurisdiction to make a custody award in this proceeding.
Ordinarily divorce proceedings take place at the domicile of the parties which is apt to be both the domicile of the children and the place where they reside. In such cases there is, of course, no question as to the validity of a judicial award of custody, for the domicile of the parents confers jurisdiction over their status and over the status of the child, as well as over the persons of the parents and the children. Stumberg, Conflict of Laws (1937), ...
To continue reading
Request your trial
-
Clarkson v. MFA Mut. Ins. Co., 8579
...306 S.W.2d 662, 665(2). See American Universal Ins. Co. v. Thompson, 62 Wash.2d 595, 384 P.2d 367, 370--371.3 Daughterty v. Nelson, 241 Mo.App. 121, 130, 234 S.W.2d 353, 358(7); Curtis v. Curtis, 330 Mich. 63, 46 N.W.2d 460, 462(5); People v. Carman, 385 Ill. 23, 52 N.E.2d 197, 199; Nelson ......
-
Kennedy v. Carman
...of the children, which is the paramount consideration, should warrant such course.' To the same effect, this court stated in Daugherty v. Nelson, 234 S.W.2d 353: 'Even in the face of a valid existing custody decree rendered by a court of a sister state, a court may, in a proper proceeding, ......
-
Phelps v. Phelps
...the filing of this petition.' It is evident that plaintiff used the word 'lived' as the equivalent of 'resided.' See Daugherty v. Nelson, Mo.App., 234 S.W.2d 353, 358. It is not essential that the allegation follow the precise language of the statute in this respect. See Coulter v. Coulter,......
-
H------ v. D------
...843, p. 35.5 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, 959.6 Jenks v. Brown, 250 Ala. 534, 35 So.2d 359; Rust v.......