Fernbaugh v. Clark

• Decision Date: 15 June 1942
• Docket Number: No. 20108.,20108.
• Citation: 163 S.W.2d 999
• Parties: FERNBAUGH v. CLARK.
• Court: Missouri Court of Appeals

163 S.W.2d 999

FERNBAUGH v. CLARK.

No. 20108.

Kansas City Court of Appeals. Missouri.

June 15, 1942.

Rehearing Stricken July 6, 1942.

Habeas corpus proceeding instituted on the relation of Margaret R. Fernbaugh against DeMorse W. Clark to obtain custody of minor child of parties alleged to be unlawfully detained by respondent.

Judgment in accordance with opinion.

Johnson & Garnett, of Kansas City, for petitioner.

C. W. Prince and John C. Grover, both of Kansas City, for respondent.

BOYER, Commissioner.

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 to her health, welfare and happiness to the end of further orders if changed conditions would justify such orders. In addition to the foregoing the decree also awarded an allowance of attorneys' fees to the attorneys of the mother in the sum of $150, to be paid in installments of $50 on the date of the decree and $5 per month thereafter until fully paid. The date of this decree was September 30, 1940.

The mother immediately took the child to her home in Louisiana. The child was not returned to its father during the following Christmas holidays, nor at the close of the school session in June, 1941. On July 11, 1941, the father took physical possession of the child where he found her in Louisiana and brought her to Kansas City, where he has ever since retained custody of his daughter.

The petitioner here was not represented by counsel in the original divorce case, but was represented by counsel after respondent obtained possession of the child and failed to return it to her, and in all matters leading up to and concluding with the modifying decree under date of September 30, 1940. Mr. Garnett, of the firm of Johnson, Garnett and Quinn, of Kansas City, was her active counsel and attorney up to that time.

On August 13, 1941, respondent through his counsel caused to be delivered at the office of Mr. Garnett a copy of his motion to modify the decree of September 30, 1940, in reference to the custody of the child by enlarging the custodial privileges of the father and curtailing those of the mother, and enjoining and restraining her from removing the child from the jurisdiction of the court, and for such other relief as the interest of the child required. The motion so served was accompanied by notice that it would be called up for hearing on the 15th day of August, 1941. Upon learning of what had been done, Mr. Garnett promptly returned these papers to the office of respondent's counsel and left word with the secretary in charge that he had not been employed in the new modification proceeding and had no authority to accept service for Mrs. Fernbaugh or to appear for her. The papers were returned to him the same day, August 14. He also wrote and delivered a letter at the office of Judge Waltner, of the Independence Division of the Circuit Court of Jackson County, Missouri, where all the previous divorce proceedings had been held, notifying him that he did not represent Mrs. Fernbaugh and had no authority to appear for her. There is evidence that Judge Waltner had previously called Mr Garnett by telephone in reference to an informal inquiry, as the previous decree had provided, and on the day that the child was produced, and that Mr. Garnett had then explained to the judge by telephone that he had not been re-employed by Mrs. Fernbaugh and had no authority to appear for her. From the time that the motion to modify was served upon Mr. Garnett until September 1, 1941, there were various communications between him, Mrs. Fernbaugh, her father, and her attorney in Louisiana, but he received no express authority from her to act in her behalf in connection with the new proceeding until the date last named.

It appears that the motion to modify was not presented to or heard by Judge Waltner on the 15th day of August, but was heard by another sitting as a special judge on August 22, 1941. On that day the special judge directed the clerk of the court to call Mr. Garnett and advise him that the motion was up for hearing. Mr. Garnett advised the clerk that he had written to Louisiana and also to Judge Waltner, but that he had had no reply, and that he didn't have anything to do with the case. The clerk testified that he reported this information to the judge. Nevertheless, the court proceeded with the hearing of respondent's motion to modify the previous order of September 30, 1940, with respect to the care, custody and maintenance of the child and proceeded to order and adjudge that said previous order be modified and that the minor child be not removed from the jurisdiction of the court but remain in the custody of plaintiff (father) during the entire time, subject to the right of the defendant (mother) to visit said child at such reasonable times and under such reasonable conditions "as the court hereafter shall, upon petition, order and adjudge," and all that part of the previous order granting custody to the mother and providing payments for the support of the child was vacated; and it was further ordered that the defendant (mother) and her agents and representatives, as well as plaintiff (father), were enjoined from removing the child from the jurisdiction of the court.

The validity or invalidity of that order is the crucial question in the case. Respondent claims custody by virtue of that order. The petitioner contends that the hearing was held and the order made without legal notice to her; that Mr. Garnett was not her attorney at the time and that service of notice on him was not binding upon her; and that said order was illegal and wholly void. Upon this question the commissioner, upon review of the facts found by him and upon the law applicable to the facts, found that the service on Mr....