Duncan, In re, No. 49806
| Court | United States State Supreme Court of Missouri |
| Writing for the Court | HYDE |
| Citation | 4 A.L.R.3d 1270,365 S.W.2d 567 |
| Parties | In the Matter of Douglas DUNCAN and David Duncan, Minors. John T. DUNCAN, Petitioner, v. Bert PITTS and Jessie Pitts, Respondents. |
| Decision Date | 11 March 1963 |
| Docket Number | No. 49806 |
Page 567
John T. DUNCAN, Petitioner,
v.
Bert PITTS and Jessie Pitts, Respondents.
Page 568
Gragg, Aubuchon & Walsh, by Eugene P. Walsh, St. Louis, for petitioner.
Morie B. Soule, St. Louis, for respondents.
HYDE, Judge.
Habeas corpus proceeding in which the St. Louis Court of Appeals sustained petitioner's motion for judgment on the pleadings but transferred the case here for the purpose of re-examining the existing law under authority of Sec. 10, Art. V, Const., V.A.M.S. See In re Duncan, Mo.App., 360 S.W.2d 361.
Petitioner in his petition filed November 7, 1961, alleged detention of his children by their maternal grandparents; that 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 children were boys, born April 21, 1957, and May 8, 1958.
The return is summarized in the Court of Appeals opinion as follows: '[R]espondents 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 'ex parte 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
Page 569
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 return also alleged that 'the Order of Publication did not state the object or the general nature of said proceeding to show that the custody of the children would be in any way affected. As a matter of fact, the notice appearing in the publication was completely absent of the fact that the custody of said minor children would be affected in any manner whatsoever.' Respondents have also filed a certified transcript of the testimony at the hearing on the divorce petition which only showed that petitioner said he was having his in-laws take care of the children and that he was asking for their control and custody. No testimony was offered as to fitness, ability to support or the welfare and best interests of the children.
The Court of Appeals also summarized petitioner's answer as follows: 'The answer to the return admits he took the children to respondents' home but alleges that this was when he...
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J. L. L., In Interest of, No. 8499
...DeCastro, 238 Mo.App. 1011, 1015, 190 S.W.2d 949, 951(1); In re Shepler, Mo. (banc), 372 S.W.2d 87, 90--91(2); In re Duncan, Mo. (banc), 365 S.W.2d 567, 571, 4 A.L.R.3d 1270; In re R.D.H.S., Mo.App., 370 S.W.2d 661, 5 In re O_ _, supra note 2; In re Burgess, supra note 2; In re J_ _, supra ......
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Shepler, In re, No. 49896
...welfare and best interest of the children involved. This principle was reiterated and applied as lately as the case of In re Duncan, Mo., 365 S.W.2d 567, where the following from Ex parte De Castro, 238 Mo.App. 1011, 190 S.W.2d 949, 951, was quoted approvingly: 'There is, however, a still f......
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Chilcutt v. Baker, No. 31741
...issue is readily available, we are not inclined to rely on legalistic presumptions. In re Shepler, Mo., 372 S.W.2d 87; In re Duncan, Mo., 365 S.W.2d 567. In view of the gravity of the charges made regarding the well-being of the children, and the absence of any evidence respecting the truth......
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Frederick v. Frederick, No. WD
...previous authority, she would be vested of no enforceable claim of custody simply by reason of past physical custody. See In re Duncan, 365 S.W.2d 567, 4 A.L.R.3d 1270 (Mo. banc 1963); In re Wakefield, 365 Mo. 415, 283 S.W.2d 467 (banc 1955) and Schumacher v. Schumacher, 223 S.W.2d 841 (Mo.......
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J. L. L., In Interest of, No. 8499
...DeCastro, 238 Mo.App. 1011, 1015, 190 S.W.2d 949, 951(1); In re Shepler, Mo. (banc), 372 S.W.2d 87, 90--91(2); In re Duncan, Mo. (banc), 365 S.W.2d 567, 571, 4 A.L.R.3d 1270; In re R.D.H.S., Mo.App., 370 S.W.2d 661, 5 In re O_ _, supra note 2; In re Burgess, supra note 2; In re J_ _, supra ......
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Shepler, In re, No. 49896
...welfare and best interest of the children involved. This principle was reiterated and applied as lately as the case of In re Duncan, Mo., 365 S.W.2d 567, where the following from Ex parte De Castro, 238 Mo.App. 1011, 190 S.W.2d 949, 951, was quoted approvingly: 'There is, however, a still f......
-
Chilcutt v. Baker, No. 31741
...issue is readily available, we are not inclined to rely on legalistic presumptions. In re Shepler, Mo., 372 S.W.2d 87; In re Duncan, Mo., 365 S.W.2d 567. In view of the gravity of the charges made regarding the well-being of the children, and the absence of any evidence respecting the truth......
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Frederick v. Frederick, No. WD
...previous authority, she would be vested of no enforceable claim of custody simply by reason of past physical custody. See In re Duncan, 365 S.W.2d 567, 4 A.L.R.3d 1270 (Mo. banc 1963); In re Wakefield, 365 Mo. 415, 283 S.W.2d 467 (banc 1955) and Schumacher v. Schumacher, 223 S.W.2d 841 (Mo.......