Frederick v. Frederick, WD

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: PER CURIAM
• Citation: 617 S.W.2d 629
• Parties: Janis FREDERICK (Schoonover), Respondent, v. Ricky Kent FREDERICK, Respondent, v. Susan GOTTMAN, Appellant. 31204.
• Docket Number: No. WD,WD
• Decision Date: 02 June 1981

Page 629

617 S.W.2d 629 Janis FREDERICK (Schoonover), Respondent,
v.
Ricky Kent FREDERICK, Respondent,
v.
Susan GOTTMAN, Appellant. No. WD 31204. Missouri Court of Appeals, Western District. June 2, 1981.

Page 630

William Y. Frick, Kirksville, for appellant.

Keith W. Hicklin, Memphis, for respondent Ricky Kent Frederick.

Before KENNEDY, P. J., and PRITCHARD and SWOFFORD, JJ.

PER CURIAM:

This is an action for change of custody of a minor child by motion to modify decree of dissolution. The judgment is affirmed.

Review of this cause is pursuant to Rule 73.01 as interpreted by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Because no specific request for findings of fact and conclusions of law are made, all fact issues are deemed to be in accordance with the results reached, Spielberg Mfg. Co. v. Direct Sales Intern., Inc., 566 S.W.2d 839 (Mo.App.1978) and no complaint can lie for the lack of particularity of findings and conclusions absent such requests. N.J.W. v. W.E.W., 584 S.W.2d 148 (Mo.App.1979).

On July 19, 1971, Janis Pickens (hereinafter referred to as the mother) and Ricky Frederick (hereinafter referred to as the father) were married. Of this marriage was born J______, whose initial custody was awarded to the mother after the marriage was dissolved on July 20, 1972. The father was ordered to pay $40.00 per month child support. The motion giving rise to this appeal was filed by the father on November 3, 1978. The motion sought change of custody from the mother to the father. In filing said motion, the father joined Susan Gottman (hereinafter referred to as the aunt) because she had physical custody of the child. The aunt filed a responsive pleading in which she moved for legal custody of J______. The aunt alleged she had standing as a proper party pursuant to § 452.485, RSMo Supp.1979. ¹

Page 631

This court is faced with addressing the question of jurisdiction under § 452.485. Neither party challenged the trial court's jurisdiction, but this issue must be addressed sua sponte if not otherwise contested by the parties. See Warman v. Warman, 496 S.W.2d 286 (Mo.App.1973). The aunt possesses no decretal rights as to custody, and under 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.App.1949). In 1967, the Springfield Court of Appeals ruled that the proper procedure in recovering custody from third parties was by a writ of habeas corpus. See Stockton v. Guthary, 415 S.W.2d 308 (Mo.App.1967) and Lipsey v. Lipsey, 464 S.W.2d 529 (Mo.App.1971).

Warman, while pointing out that courts should rule on jurisdiction sua sponte, also declared that where third parties have custody by decree, an adverse trial court ruling accords such third parties the status of "aggrieved parties" for purposes of appeal.

Subsequent to the foregoing authority, the legislature enacted § 452.485. This section permits the trial court to join third parties to the action. Authority which speaks to this statute is Matter of Trapp, 593 S.W.2d 193 (Mo. banc 1980). (See also In the Interest of M____ K____ P____, 616 S.W.2d 72 (Mo.App.1981), for a discussion of Trapp. In this decision, the court found the foster parents did not violate the rule in Trapp.) The court in Trapp held that foster parents having physical custody of a child have no standing as parties in actions by natural parents to regain custody under Chapter 211. The court in Trapp ruled that § 452.485 conferred no rights upon foster parents to intervene in abandonment or neglect proceedings. The court declared at 205:

"We think that § 452.485, V. A.M.S.Supp.1979, does not confer a right on foster parents having physical custody of a child to intervene in a custody proceeding based on allegations of neglect or abandonment of the child by the natural parents. The provision is designed to confer certain powers on the circuit court, but it does not confer a right to litigate the issue of neglect on persons who are not interested under the terms of the Juvenile Courts Chapter, Chapter 211, RSMo 1978. The right of foster parents are the same under § 452.485, V. A.M.S.Supp.1979, as they were before its enactment."

The underlying policy issue in Trapp was the prevention of the interjection of the false issue of foster parent fitness; while the sole issue in Chapter 211 proceedings is the fitness of the natural parents to have custody returned to them.

This court interprets Trapp to be limited in scope and application to those cases involving foster parents as parties in proceedings pursuant to Chapter 211. This court interprets the state Supreme Court's language in Trapp which declares "(t)he provision is designed to confer certain powers on the circuit court" (and read conjunctively with § 452.485) as conferring jurisdiction upon the circuit court to join third persons who have physical custody in proceedings not filed or litigated pursuant to Chapter 211. This court further concludes that the legislative intent and meaning within § 452.485 is to confer jurisdiction upon the circuit court to join third parties who have physical custody of minors and to vest the circuit court with jurisdiction to resolve all conflicting claims of custody in proceedings brought pursuant to § 452.485.

This determination should not be construed as having any limiting effect, or as superseding the invocation of jurisdiction by way of a writ of habeas corpus. Rather, this court observes the enactment of § 452.485 as an alternative method of determining conflicting claims of the custody of minors. Under the facts and circumstances of the instant case, and as a result of this court's application of Trapp and the construction placed upon § 452.485, the circuit court herein had jurisdiction to rule the aunt's claim for legal custody.

Page 632

Although the pleadings formally included the wife, this contest for the custody of J______ was in reality between the father and the aunt. The mother did not participate at the hearing, although she did support the aunt's claim against the claim of the father.

Through her pleadings and evidence, the aunt challenged the fitness of the father to have the custody of J______. On this appeal, the aunt charges that the circuit court erred in awarding the custody of J______ to the father because (a) the court misconstrued and misapplied the law in giving undue weight to the "presumption" that a natural parent's claim to custody is superior to that of any third party, and conversely gave insufficient weight to the matter of the best interest of the minor child; and (b) the court misapplied the law to the evidence by basing its order on a finding that the father was not shown to be unfit, whereas the evidence resolved that the best interest of J______ would be served in awarding custody to the aunt.

Before taking up and disposing of the issues argued by the aunt, recital of pertinent facts is necessary.

Subsequent to the dissolution of the marriage between the mother and father, the mother entered into two unsuccessful marriages. During this period, J______ was shuffled between his mother and the maternal grandparents. The mother took up cohabitation with a man not her husband and when the father objected to the exposure of the child to such a situation, J______ was placed with the maternal grandparents on a permanent basis. Approximately one year later, the maternal grandfather died and J______ was placed with the aunt and her family. This arrangement continued for approximately two years before the present motion was filed by the father.

During this same period, the father remarried. He and his wife have two children as a result of this marriage. Early in their marriage, the father and his second wife had marital problems and the wife had health problems. However, at the time of the hearing on the motion, both the father and his wife testified that the marital problems and the health problems had been resolved. The father is regularly employed, has a residence which he is willing and desirous of enlarging, matched against a minimal amount of indebtedness. He and his family reside in a rural community and J______ would attend a rural school. Both the father and his wife expressed a desire to have custody of and to raise J______.

The aunt and her family live in a larger community, have a residence, J______ attends a consolidated school, they have provided for him as their own son and both the aunt and uncle desire legal custody of J______ so as to raise him in their own home.

A great deal of time was consumed at the hearing over the issue of support for J______. The father contended that he provided child support in the form of cash, money orders and checks, and added that he missed only one or two months payment. In addition, he claimed that since he could not locate the mother for a period of time, he had placed monies in a savings account in lieu of child support payments. In contrast, the aunt contended that she had received only $120 in support of J______ over a two-year period.

In addition to the issue of child support, visitation was a highly controversial matter tried to the court. The husband testified that following the dissolution, visitation was regularly frequent; but he admitted that it became nonexistent at a later time. The aunt offered evidence that visitation was nonexistent for two years, except for one Christmas. The aunt also testified that the father visited the in-laws in the vicinity of her home, but refused or failed to visit with J______ on these occasions.

The aunt offered evidence to indicate that she and her husband took a continued interest in the problems and progress of J______ at school, worked with school authorities and were active in school activities in which J______ was...