Green v. Green
| Decision Date | 19 June 1951 |
| Docket Number | No. 28044,28044 |
| Citation | 240 S.W.2d 741 |
| Parties | GREEN v. GREEN. |
| Court | Missouri Court of Appeals |
Raymond S. Roberts, Farmington, for appellant.
Dearing & Matthes, M. C. Matthes, and Joseph G. Stewart, all of Hillsboro, for respondent.
WOLFE, Commissioner.
This is an action for divorce brought by Norvell Green in which his wife sought a divorce on a cross bill. Both parties asked for the custody of their infant child. After hearing the case the court made the following entry:
'Now on this day comes plaintiff and defendant by their respective attorneys and the issues herein having been heretofore submitted to the court upon the pleadings and evidence adduced, and the court being fully informed in the premises doth find that defendant is the innocent and injured party and entitled to the relief prayed for in her cross bill.
'It is therefore ordered, adjudged and decreed by the Court that the bonds of matrimony between the parties be and they are hereby dissolved and that the defendant be and she is absolutely and forever divorced from the plaintiff; that plaintiff's petition be dismissed and that all costs herein be taxed against the plaintiff.
'It is further ordered and decreed by the court that the question of the permanent custody of the minor child of the parties, namely Maurice Green, named in plaintiff's petition be and the same is hereby taken under advisement by the court, and that pending final disposition of the question of permanent custody of said child, that the defendant be and she is hereby granted the temporary custody of the minor child of the parties and that plaintiff shall have the right to the custody of said child one weekend of every month and that said period of time to which the plaintiff shall be entitled to such temporary custody shall commence at 4:00 o'clock p. m. on Friday and end at 5:00 o'clock p. m. on Sunday and that the plaintiff shall be entitled to such temporary custody of the child commencing on April 28, and thereafter on the last week-end as herein defined of every month.
'It is further ordered and decreed by the court that plaintiff shall pay to defendant the sum of $15.00 per week for the support and maintenance of said child.'
It will be noted that the decree does not permanently award the custody of the child, although both the petitioner and the cross-petitioner requested its custody in their pleadings. This raises the question of whether or not the entry made by the court was a final judgment from which an appeal may be taken. The parties have not raised this issue, but it is our duty to determine whether or not a final appealable judgment has been entered by the trial court. Deeds v. Foster, Mo.Sup., 235 S.W.2d 262; Poston Springfield Brick Co. v. Brockett, Mo.App., 183 S.W.2d 404; Hoefer v. Wease, Mo.App., 104 S.W.2d 721.
Missouri Revised Statutes, 1949, Section 452.070, provides: 'When a divorce shall be adjudged, the court shall make such order touching the alimony and maintenance of the wife, and the care, custody and maintenance of the children, or any of them, as, from the circumstances of the parties and the nature of the case, shall be reasonable, * * *.'
It is evident that the Legislature intended that in divorce cases, where the custody of children is to be determined, the court in its decree of divorce should make an award...
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