Duncan, In re, 31124

• Decision Date: 21 September 1962
• Docket Number: No. 31124,31124
• Parties: In the Matter of Douglas DUNCAN and David Duncan, Minors. John T. DUNCAN, Petitioner, v. Bert PITTS and Jessie Pitts, Respondents.
• Court: Missouri Court of Appeals

Page 361

360 S.W.2d 361

In the Matter of Douglas DUNCAN and David Duncan, Minors.

John T. DUNCAN, Petitioner, v. Bert PITTS and Jessie Pitts, Respondents.

No. 31124.

St. Louis Court of Appeals, Missouri.

Sept. 21, 1962.

Gragg, Aubuchon & Walsh, Eugene P. Walsh, St. Louis, for petitioner.

Dockery & Soule, Morie B. Soule, St. Louis, for respondents.

ROBERT G. BRADY, Commissioner.

This is a proceeding in habeas corpus which was instituted in this court by the father of Douglas Duncan and David Duncan, alleging their detention by their maternal grandparents, Mr. and Mrs. Pitts, respondents herein. The petitioner further alleged he was granted a divorce on October 24, 1960 from the mother of the children and was awarded custody of the children by that decree, but that the respondents have refused to turn the children over to him. The matter has been fully briefed by the parties in their suggestions and the pleadings are complete. Petitioner has filed a motion for the right of temporary visitation and for judgment on the pleadings.

In their return, insofar as the allegations are pertinent to our inquiry, the respondents alleged that the petitioner brought these children to their home in University City and requested respondents to support, care for, and have custody of the children; that acting pursuant to his request, the respondents have done so; and alleged '* * * therefore, * * * the respondents herein, do not imprison, detain, nor restrain * * *' the children. The return also alleged that the petitioner was living with his wife at the respondents' home when he and his wife separated and knew she still resided there but nevertheless instituted service by publication; that no notice was ever given to the mother of these proceedings which were 'exparte and uncontested' insofar as custody of the children was concerned. Respondents alleged that the circuit court did not have jurisdiction for this reason and its decree was '* * * void, illegal, irregular and invalid.' The return further alleged that the petitioner is not a resident of this state, does not maintain a home in this state, and intends to remove the children from the state, thereby depriving '* * * the State of Missouri of its inherent right of control of said children'; and that the children '* * * since they were infants and are at the present time, wards of the Court of the State of Missouri.' The other allegations of the return deal with the fitness of the petitioner and allege that he is constantly traveling and does not maintain a home of any kind at any place; that he has not the means to care for and support them that he is a stranger to them with no love or affection for them; that he habitually uses intoxicating liquor to excess and has beaten the children with an 18-inch oak ruler and has a violent and uncontrollable temper; that the children become emotionally upset at the mere sight of him or at his presence; that on occasion they have required medical attention because of this fact; that petitioner '* * * has had several encounters with the police and was sought by the Internal Revenue Service * * *'; that petitioner has refused to care or provide for the children; that his conduct is 'lustful, lewd and lascivious'; that by a previous marriage petitioner had another child which he did not provide for either; and that petitioner only seeks to remove the children from the respondents and has stated his intention of placing them in a home if successful in doing so. The return also alleged the financial and moral fitness of the respondents.

The answer to the return admits he took the children to respondents' home but alleges that this was when he came to live there with them and their mother, and further admits that there was no personal service on the mother when the divorce was granted. All the other allegations of the return are denied. As new matter, the answer alleges that the respondents cannot collaterally attack the divorce decree, and as grounds therefor alleges that the service on the mother was valid because she had '* * * absconded and absented herself from her usual place of abode * * *' at respondents' home and '* * * concealed herself so that the ordinary process of law could not be personally served upon her * * *'; and that respondents cannot attack this decree because they are estopped to do so, having often told petitioner the mother was not living with them and they did not know her whereabouts. The answer further alleges his fitness and capabilities for caring for the children, and the respondents' unfitness, in that they both work and the 'children have been attended by a paid baby sitter during the day * * *.'

The reply denies the allegations of new matter in the answer, and also alleges that petitioner has stated to them that he has no religion and does not believe in God.

It is evident from the pleadings and the suggestions that the respondents seek an opportunity to present evidence going to the fitness of the father and place their primary reliance upon their contention as to his unfitness to have custody of these children. In other jurisdictions it has been held that a prior divorce decree determining custody, although binding as between the parents, is not a bar to a subsequent habeas corpus proceeding to determine custody, since the decree did not consider the position of the state as parens patriae and the welfare of the child, see 39 C.J.S. Habeas Corpus Sec. 46, Notes 56 and 57, but the rule is otherwise in Missouri, In re Wakefield, 365 Mo. 415, 283 S.W.2d 467. The respondents urge that nevertheless they are entitled to a hearing upon their allegations of the unfitness of the petitioner in the case at bar. Their contention is that where the evidence supporting the allegation of unfitness arises after the divorce decree, such evidence can be considered. It is true that in the Wakefield case, supra, at [7-8] of page 472, the court stated that award of custody in a divorce decree requires the presumption that the parent receiving custody was then a fit person, but the word 'then' should not be given undue significance. In Wakefield, supra, the Supreme Court of this state clearly overruled Ferguson v. Garrison, Mo.App., 262 S.W.2d 163, a case where the Springfield Court of Appeals in a habeas corpus proceeding awarded custody of a child to another even though there was a divorce decree awarding custody to the mother. It is apparent that while the court in Wakefield discussed generally the fact that there was a motion to modify filed by the proper party pending in the circuit court when the habeas corpus proceeding was instituted, since the court specifically overruled the Ferguson case, the fact that there was no motion to modify pending in the instant case should not affect our decision. The rule of In re Wakefield, supra, is that where a parent was awarded custody of a minor child by a divorce decree and that decree has not abated by death or otherwise, evidence going to the question of the parent's fitness since the decree cannot be heard in a habeas corpus proceeding.

Being foreclosed by Wakefield in their effort to present evidence upon their allegations of the petitioner's unfitness, and recognizing that had there been no award of custody arising out of the divorce proceedings this court would be free in a habeas corpus proceeding to inquire into the fitness of the petitioner, the respondents urge the invalidity of the divorce decree. The respondents' contention is that the divorce decree is void because the circuit court did not have jurisdiction of the parties, the petitioner having made a false affidavit for service by publication by stating therein the statutory language (Section 506.160 RSMo 1959, V.A.M.S.) that the defendant mother had absconded and absented herself from her usual place of abode and had concealed herself so that ordinary process of law could not be personally served upon her and that her address was unknown to him, when in truth and in fact petitioner knew that his wife was living with respondents. The petitioner in effect denies the affidavit is false but places his main...