Fernbaugh v. Clark
| Citation | 163 S.W.2d 999,236 Mo.App. 1200 |
| Parties | EX PARTE MARGARET R. FERNBAUGH, RELATOR, v. DeMORSE W. CLARK, RESPONDENT |
| Decision Date | 15 June 1942 |
| Court | Kansas Court of Appeals |
Rehearing Stricken July 6, 1942, Reported at: 236 Mo.App 1200 at 1215.
CUSTODY AWARDED TO RESPONDENT.
Custody awarded.
C. W Prince and John C. Grover for respondent.
(1) The report and recommendation of the Special Commissioner are only advisory and not in any sense binding on this court. State ex inf. v. Arkansas Lbr. Co., 260 Mo. 269; State ex inf. v. Kansas City College of Medicine and Surgery, 285 S.W. 983. (2) The judgment of the Circuit Court of Jackson County, Missouri, Independence Division, entered August 22, 1941, was a valid and binding judgment. Chap. 8, Art. 6, R. S. Mo. 1939; Secs. 1621 and 1624, R. S. Mo. 1939; State v. Alford, 122 S.W.2d 906. The court granting a divorce retains jurisdiction as to modification of the judgment for the custody of the children. Secs. 1519, 1525, R. S. Mo. 1939; Meyers v. Meyers, 91 Mo.App. 151; In re Gladys Morgan, 117 Mo. 249; In re Krauthoff, 177 S.W. 1118; In re Kohl, 82 Mo.App. 445; Tomlinson v. French Institute of Notre Dame De Sion, 109 S.W.2d 76. Charles V. Garnett was the attorney of record for petitioner on August 13, 1941, at the time of the service of motion to modify decree and notice calling same up and service on him was legal notice to his client. Sec. 910, R. S. Mo. 1939; 6 C. J. 645, sec. 148; State ex rel. Shoemaker v. Hall, 257 S.W. 1047; Laumeier v. Laumeier, 271 S.W. 481; State ex rel. v. Falkenhainer, 274 S.W. 758; Dezino v. Drozda Realty Co., 13 S.W.2d 661. The facts of record show that the relationship of attorney and client existed between Charles V. Garnett and petitioner from the early part of September, 1940, to and including August 22, 1941, down to the present time. Petitioner had actual notice of the motion and notice. Authorities under (a), supra. Petitioner, at the taking of her deposition in the case, refused to testify on the ground that Charles V. Garnett was her lawyer between October, 1940, and September, 1941, and now is estopped to deny this fact. 2 R. C. L. 990, sec. 69; Authorities under (c), supra; McNatt v. Wabash Ry. Co., 74 S.W.2d 629; Cantrell v. Knight, 72 S.W.2d 199. (3) The court first acquiring jurisdiction of the subject matter retains exclusive jurisdiction, subject only to the right of appeal. 29 C. J. 18, sec. 10; 7 R. C. L. 1068, sec. 106; State v. Reynolds, 107 S.W. 493; State v. Buckner, 200 S.W. 95; In re Mitchell, 16 S.W. 118; Krueger v. Krueger, 107 S.W.2d 972; Authorities under (2) (b), supra; State ex rel. v. Falkenhainer, 274 S.W. 758.
Johnson & Garnett for petitioner.
(1) This court has jurisdiction, by habeas corpus, to determine the validity of the modifying order under which respondent claims custody. Sec. 1623, R. S. Mo. 1939; State v. Alford, 343 Mo. 576, 122 S.W.2d 906; Tomlinson v. French Institute, 232 Mo.App. 597, 109 S.W.2d 73; Jack v. Jack, 295 Mo. 128, 243 S.W. 314; State ex rel. Tatum v. Ramey, 134 Mo.App. 722, 115 S.W. 458. (2) The order of the circuit court was entered without legal notice to petitioner of the filing of the motion upon which it is based, and without affording her an opportunity to be heard thereon, and is, therefore, violative of petitioner's constitutional right of due process of law, and void. State ex rel. Scott v. Harris, 136 S.W.2d 78, 80; Ruedlinger v. Ruedlinger, 222 Mo.App. 819, 10 S.W.2d 324, 325; Jack v. Jack, supra. The circuit court had no jurisdiction to entertain the new proceeding for a change of custodial right without giving petitioner due notice thereof and an adequate opportunity to be heard thereon. North v. North (Mo.), 100 S.W.2d 583, 587; Cases cited under (1) (a), supra. Garnett's employment terminated with the termination of the proceedings in which he was employed as attorney, and notice to him was not notice to petitioner. Restatement of the Law, Agency, sec. 106; 6 C. J. 640, 672; 7 C. J. S. 940; Wade on Notices, sec. 1323; Konta v. St. Louis Stock Exchange, 150 Mo.App. 617, 131 S.W. 380; Pulitzer Pub. Co. v. Allen, 134 Mo.App. 229, 113 S.W. 1159; Scott v. Scott, 174 Iowa 740, 156 N.W. 834; Reynolds v. Reynolds, 12 Ohio App. 63; Sandall v. Sandall (Utah), 15 A. L. R. 620, 193 P. 1093; State ex rel. Woodson v. Robinson, 270 Mo. 212, 192 S.W. 1001, 1004. The opinion of Judge WOODSON in the case of State ex rel. Shoemaker v. Hall, 257 S.W. 1047, relied upon by respondent, is the opinion of only one judge, and not the court and establishes no precedent or authority governing decision of the case at bar. State ex rel. Falkenhainer, 309 Mo. 224, 274 S.W. 758; Laumeier v. Laumeier, 308 Mo. 201, 271 S.W. 481; Edwards v. Bell, 343 Mo. 824, 826; Viquesney v. Kansas City, 305 Mo. 488, 497, 266 S.W. 700; Coleman v. Haworth, 320 Mo. 852, 8 S.W.2d 931, 935; Heald v. Insurance Co., 340 Mo. 1143, 104 S.W.2d 379, 384; State ex rel. v. Hartman, 339 Mo. 200, 96 S.W.2d 329, 330; Coates & Hopkins Realty Co. v. K. C. Terminal Ry. Co., 328 Mo. 1118, 43 S.W.2d 817, 823. (f) Respondent's contention that petitioner refused to testify on the ground that Garnett was her lawyer between October, 1940, and September, 1941, is without merit and without record support. (3) There is no merit to respondent's contention that exclusive jurisdiction of the subject-matter of this proceeding is in the circuit court. See authorities under (1), supra.
Habeas Corpus.
This is a proceeding in habeas corpus instituted by petitioner to obtain the custody of her child said to be unlawfully detained by respondent. Following the issuance of a writ to respondent on September 25, 1941, the return of respondent to said writ and the answer of petitioner to the return were duly filed. Thereafter, by agreement of the parties and to expedite the hearing upon the issues raised, the court appointed a special commissioner to receive and preserve the evidence upon the issues joined and to cause it to be returned to the court with findings of fact and conclusions of law thereon. The commissioner has returned the evidence so received by him to the court, together with his report containing his findings of fact and conclusions of law. His report was adverse to the claims of respondent who has filed exceptions thereto. The case is now before the court for disposition upon respondent's exceptions and upon the record.
The following preliminary statement of facts admitted, conceded or uncontroverted may serve as introductory to a more detailed statement of the evidence relative to points raised by counsel in their briefs. Prior to December 16, 1936, petitioner and respondent were husband and wife but on said date the respondent, upon his petition and upon default of his wife, obtained a divorce. Their infant daughter, Carol Clark, was then six years of age. The father did not request custody of the child, but did request that the court fix the proper amount of money which he should pay for the support and maintenance of his daughter; that he be afforded the privilege of visitation; and for such other orders as to the court may seem proper. The decree of divorce awarded care and custody of the child to the mother and directed that she be allowed the sum of $ 5 per week for its support, and that plaintiff have the privilege of visiting the child at reasonable times and have its custody during two weeks of the summer vacation. Both parties remarried, and the petitioner (mother of the child) is now Margaret R. Fernbaugh. The child and her mother, with her new husband, resided in Louisiana.
Some time in July, 1940, the father obtained possession of the child and brought it to his home in Kansas City and failed to return the child to its mother after the time of his authorized period of custody, whereupon a series of court processes and proceedings were instituted, including an execution to obtain custody of the child; a motion on behalf of the father to quash execution and to modify the decree and the petition of the mother for a writ of habeas corpus, all of which were withdrawn or dismissed by stipulation of the parties; and upon a further agreed plan in reference to the custody, care and maintenance of the child to be recommended to the court as the basis of a judgment modifying the previous order relating to the child's custody. On presentation of the recommended plan of modification to the judge of the court, who had tried the divorce case, the court found that the parties had agreed that the provisions of the divorce decree should be modified with respect to the care, custody and control of the child so that the defendant (mother) should have and exercise the care, custody and control of said child at her home in the State of Louisiana during all of each school year, and that plaintiff (father) should have the privilege of visiting with said child at any and all reasonable times and should have the custody of said child during the summer and Christmas vacation periods of school in each year at his home in Missouri, provided that he should return the child to its mother in Louisiana at least one week before the end of each summer vacation period in time for preparation to enter school, and in time to resume her school work after the Christmas vacation. An allowance of $ 5 per week for the support of the child during the periods of custody by the mother was made. The court found that it was to the best interest of the child to modify the decree in accordance with the stipulation of the parties and so ordered. The modifying decree also provided that at the beginning of each summer vacation of the custodial period of the father, the child should be presented to the court for examination and hearing as...
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