Duncan, In re
| Decision Date | 11 March 1963 |
| Docket Number | No. 49806,49806 |
| 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. |
| Court | Missouri Supreme Court |
Gragg, Aubuchon & Walsh, by Eugene P. Walsh, St. Louis, for petitioner.
Morie B. Soule, St. Louis, for respondents.
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:
The return also alleged that 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 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 Court of Appeals believed that Wakefield case, In re., 365 Mo. 415, 283 S.W.2d 467, required it to enter judgment on the pleadings for petitioner because the divorce decree awarded custody to him, although it felt that to be an unconscionable result if the allegations of the return were true. In the Wakefield case, the mother of the child involved had brought suit for divorce but her hubsand, the petitioner for habeas corpus, was granted the divorce on his crossbill and custody of their child. The child was placed in the care of petitioner's half sister and her husband, petitioner claimed temporarily until he could make other arrangements. Having remarried and established a home, he asked respondents for the child but they claimed that by a verbal order not incorporated in the divorce decree, custody had been awarded petitioner on condition that the child would be in their care and control. Prior to the habeas corpus, the child's mother had filed a motion which was still pending in the divorce court to modify the decree to vest custody in respondents. The Court of Appeals held it could not review the propriety of the divorce court's award of custody nor alter it but that modification could only be made by that court. On transfer we reached the same result saying (283 S.W.2d l. c. 472): '[T]he writ may not be employed to interfere with the inherent right and jurisdiction of our circuit courts to determine and award custody of minor children in divorce cases of which they have proper jurisdiction and in which they have exercised that jurisdiction by making a custody award of record.'
It is to be noted that in the Wakefield case there had been a full hearing in the divorce case on a petition and...
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