Fleming v. Fleming
| Decision Date | 30 January 1978 |
| Docket Number | No. KCD,KCD |
| Citation | 562 S.W.2d 168 |
| Parties | Donna Jean FLEMING, Petitioner, v. Jack Eugene FLEMING, Respondent. 29316. |
| Court | Missouri Court of Appeals |
James W. Farley, Farley & Johnson, Farley, for petitioner.
Don Witt and Abe Shafer, Witt & Shafer, Platte City, for respondent.
Before SWOFFORD, C. J., and SHANGLER, DIXON, PRITCHARD, WASSERSTROM, SOMERVILLE and TURNAGE, JJ.
Donna Jean Fleming filed her petition in habeas corpus in this court in which she requested the two children born of her marriage to Jack Fleming be delivered to her. This court issued a writ of habeas corpus to Jack and waived production of the two children. The case has now been briefed and argued.
Donna was granted a default dissolution in 1975 in the Circuit Court of Platte County. In that decree the custody of the two girls was granted to Donna. In May, 1976, Jack and Donna entered into a stipulation in which they agreed there had been such change in circumstances that the permanent custody of the two girls should be transferred to Jack. Thereafter, the court entered a judgment in which it recited "this matter comes on for hearing and is taken up on the stipulation agreed to between the parties hereto." The court then found the judgment should be modified by transferring the permanent custody of the two girls from Donna to Jack and eliminating the obligation of Jack to pay child support.
In her petition for habeas corpus, Donna alleged the judgment transferring custody to Jack was illegal because it showed on its face it was entered pursuant to a stipulation and not following a hearing at which evidence was produced from which the court could make the requisite findings required by § 452.410, RSMo 1975 Supp.
Jack contends the modification judgment is at most irregular and Donna is barred from a collateral attack by habeas corpus but must mount a direct attack by motion in the circuit court.
Habeas corpus has been held proper to procure the custody and possession of a minor child in certain instances. These have been stated in In Re Wakefield, 365 Mo. 415, 283 S.W.2d 467, 471(5, 6) (banc 1955) to be:
Such, generally, are situations where the parent to whom custody was awarded is enforcing such an award, where there has been no formal award of custody, where the parent to whom custody has been awarded has died and the divorce proceeding has thus abated (Schumacher and Crouse cases, supra,) or where for some reason the award of custody is illegal on the face of the record and the legality of the order is questioned by habeas corpus.
Donna claims the modification in this case is illegal or unauthorized on its face because the judgment shows the court acted only upon the stipulation and agreement of the parties without hearing evidence on the question. The judgment recites it was entered on the stipulation between the parties. The judgment does not recite that any evidence was received. This presents the question of the validity of the judgment as reflected on its face when it shows it was entered on the stipulation and agreement of the parties but without any evidence as to the best interest of the children being presented.
Section 452.410 prohibits a court from modifying a custody decree "unless it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interest of the child."
Courts have had occasion to consider the validity of modification orders made solely on the stipulation and agreement of the parties. In Wood v. Wood, 400 S.W.2d 431 (Mo.App.1966) the court stated the practice of entering a judgment "without a hearing and merely on the consent and stipulation of the parties" is a practice that should not, except in rare instances, be followed. 400 S.W.2d 437(7, 8). The court indicated "evidence should be taken to determine the propriety of the stipulation entered into by the parties and whether or not the custody provided therein serves the best interest and future welfare of the child." This court followed Wood in Flickinger v. Flickinger, 494 S.W.2d...
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