In re Duren

• Citation: 200 S.W.2d 343,355 Mo. 1222
• Decision Date: 10 March 1947
• Docket Number: 40055
• Parties: In re Adoption of Stanley Duren: Alfonso Guerry and Eva Guerry v. Sirena Hicks, Intervenor, Appellant
• Court: Missouri Supreme Court

200 S.W.2d 343

355 Mo. 1222

In re Adoption of Stanley Duren: Alfonso Guerry and Eva Guerry v. Sirena Hicks, Intervenor, Appellant

No. 40055

Supreme Court of Missouri

March 10, 1947

Appeal from Jackson Circuit Court; Hon. Ray G. Cowan Judge.

Affirmed.

L L. Watts and Green & Green for appellant.

(1) The parents of Stanley Duren, 8 years of age, were at the time of their death, residents of Douglas County, Missouri, and such minor, or no one for him could thereafter change his residence. Cox v. Boyce, 152 Mo. 546; Lacy v Williams, 27 Mo. 280; Smith v. Young, 117 S.W. 628; Marheinke v. Grothams, 72 Mo. 203, 136 Mo.App. 65; Lewis v. Costello, 17 Mo.App. 593. (2) The judgment of the Probate Court of Douglas County, Missouri, appointing Intervenor, Sirena Hicks as guardian and curator of the person and estate of Stanley Duren and in which it was affirmatively found that Stanley Duren was a resident of Douglas County, Missouri, is conclusive, res adjudicata and binding upon all the world, and thereby not subject to collateral attack. Smith v. Young, 136 Mo.App. 65; Baker v. Smith, 18 S.W.2d 147; Ellis v. Piano Co., 49 S.W.2d 1078; Johnson v. Beasley, 65 Mo. 250; Wejatt v. Wilhite, 192 Mo.App. 551. (3) The appointment of Sirena Hicks as guardian and curator of Stanley Duren, a minor was made while said infant was in Douglas County and long prior to the time of the commencement of this action. Therefore regardless of whether or not the judgment of the Probate Court of Douglas County determining the residence of the minor is or is not res adjudicata, the minor from and after such date became a resident of Douglas County. Sec. 394, R.S. 1939. (4) The application of Sirena Hicks for appointment as guardian and curator of the person and estate of Stanley Duren wherein it was stated that Stanley Duren was a resident of Douglas County, Missouri; and the certified copy of such judgment appointing Sirena Hicks as such guardian and curator and finding Stanley Duren to be a resident of Douglas County, Missouri, was admitted in evidence in the trial of this cause without objection. Sec. 393, R.S. 1939. (5) The Juvenile Court of Jackson County, Missouri, was without jurisdiction to decree adoption because Stanley Duren was not a legal resident of Jackson County, Missouri. Minor children whose parents are both dead do not lose their legal domicile in the county where their parents lived and died by being temporarily taken and cared for by relatives in another county. Lewis v. Costello, 17 Mo.App. 593; Marheineke v. Grothaus, 72 Mo. 204. (6) A minor, being non sui juris cannot choose or change his domicile. Spurgeon v. Mission State Bank, 151 F.2d 702. (7) Doctrine of adoption exists in the State by virtue of statute, and, being in derogation of common law, statute is strictly construed. Lamb v. Feehan, 276 S.W. 71; Thompson v. Arnold, 230 S.W. 322; Fienup v. Stamer, 28 S.W.2d 322; Niehaus v. Madden, 155 S.W.2d 141. (8) Adoption should not be decreed to persons of different religious persuasion from that of the parents of said child. Secs. 392, 1440, 9691, R.S. 1939. (9) The best home to be provided by court in adoption proceedings is not necessarily the wealthiest home, but the home which will best promote the child's welfare. State ex rel. St. Louis Children's Aid Society v. Hughes, 352 Mo. 384, 178 S.W.2d 463.

Samuel C. Hayden and Robert S. McKenzie for respondents.

(1) At the time the adoption proceedings were instituted, Stanley Duren was a resident of Jackson County, even though his parents never resided there, and the Juvenile Division of the circuit court of that county had jurisdiction of the matter. Cox v. Boyce, 152 Mo. 576, 54 S.W. 467; Ex parte Fitchel, 84 S.W.2d 977; Spurgeon v. Mission State Bank, 151 F.2d 702; In re McAvoy's Adoption, 173 S.W.2d 108; Smith v. Young, 136 Mo.App. 65, 117 S.W. 628. (2) Consent in writing of a guardian shall not be a prerequisite to an adoption if the guardian has notice of the proceeding and is afforded an opportunity to be heard. Child Saving Institute v. Knobel, 37 S.W.2d 920, 327 Mo. 609; In re McAvoy's Adoption, 173 S.W.2d 108; In re McFarland, 12 S.W.2d 523, 223 Mo.App. 826. (3) The child's welfare should be the chief consideration in determining who shall have his final custody and it will be best served by sustaining the adoption by petitioners herein. Thompson v. Arnold, 230 S.W. 322; Voullaire v. Voullaire, 45 Mo. 602; In re Doyle, 16 Mo.App. 159; State ex rel. Baker v. Bird, 162 S.W. 119, 253 Mo. 569; In re Dixon, 167 S.W. 827, 254 Mo. 663; In re McFarland, 12 S.W.2d 523, 223 Mo.App. 826; In re McAvoy's Adoption, 173 S.W.2d 108; Rochford v. Bailey, 332 Mo. 1155, 17 S.W.2d 941.

OPINION

Ellison, J.

This case was ordered transferred to this court from the Kansas City Court of Appeals under Sec. 10, Art. V, Const. Mo. 1945, and our Rule 2.06. There are several important issues on the merits, but the first question for our determination is whether the dominant issue is preserved for appellate review on the record and briefs transferred.

The cause originated in the Juvenile Division of the Circuit Court of Jackson County, which sustained the respondents' petition for the adoption of Stanley Duren, an orphan boy eight years old, and decreed accordingly under Sec's 9608-9613, ^[1] after a favorable report by a guardian ad litem appointed under Sec. 9612. The intervenor, who had previously been appointed in Douglas County as the boy's guardian, appealed to the Kansas City Court of Appeals, which reversed the decree on the ultimate grounds: that under Sec. 9609 the written consent of the intervenor, as guardian, was a condition precedent to a valid adoption; that such consent had not been obtained (which is undisputed); and that the adoption consequently was automatically void.

This legal point was raised for the first time in the Court of Appeals' opinion. It had not been presented to the trial court by either party, nor had it been decided by that court. And neither had the appellant-intervenor raised it in the Court of Appeals. Further, although on such transfers we treat the cause as an original appeal to this court and the intervenor retains her position here as appellant under Rule 2.06, supra, nevertheless she has not filed a new brief but stands on her original brief in the Court of Appeals, which did not raise the foregoing point. However, respondents answered the Court of Appeals' opinion on that issue in their motion for rehearing there (without avail) and have filed another brief in this court in which they take the negative side on that legal question.

And it is also true that the new legal issue depended somewhat on other underlying facts and legal issues, which were presented and decided in the trial court and Court of Appeals. The intervenor's answer pleaded the trial court's lack of "jurisdiction over the person or subject matter of this suit." And the questions were mooted: whether the intervenor had previously been legally appointed the boy's guardian by the Probate Court of Douglas County, as claimed by her; whether the respondents could assail in the adoption proceeding the intervenor's earlier appointment as guardian, or whether the appointment was res judicata as a judgment in rem; and whether the juvenile court of Jackson County had jurisdiction of the adoption proceeding under Sec. 9608 if the boy did not then reside in that county, but in Douglas County where his guardian had been appointed.

The Court of Appeals observed [195 S.W.2d l.c. 749(7)] that it felt free to introduce the statutory "consent" issue, because: "The new code and the rules adopted since its passage permit the appellate court some latitude in refusing to dispose of cases upon technical considerations, such as a failure of the appellant to make, in his brief, the precise point governing the case" -- citing Sec. 139 of the Civil Code and Rules 1.08, 1.15 and 1.28. It seems to us these citations bear more on the form and manner of taking appeals and writing briefs, and less on the scope of appellate review, than does Sec. 140(a) of the Code, which provides: "Apart from questions of jurisdiction of the trial court over the subject matter and questions as to the sufficiency of pleadings to state a claim upon which relief can be granted or a legal defense to a claim, no allegations of error shall be considered in any civil appeal except such as have been presented to or expressly decided by the trial court."

But other sections of the Code have enlarged the jurisdiction of the appellate courts. Thus, Sec. 114(a) and (d) provides that in all cases tried upon the facts without a jury (of which the instant suit is one) the question of the sufficiency of the evidence to support the judgment may be raised for the first time in the appellate court; and that the court must review the case upon both the law and the evidence, but shall not set aside the judgment unless clearly erroneous. This last prohibition is stated more broadly in Sec. 123 and in Sec. 140(b), as applying respectively to "the judgment of any court" and to "any judgment." That far the provisions of the Code seem to show more concern for the affirmance of judgments than for their reversal. But Sec. 140(c) goes on: "The appellate court shall examine the transcript on appeal (it does not say briefs) and, subject to the provision of subsections (a) and (b) of this section, award a new trial or partial new trial, reverse or affirm the judgment or order of the trial court, or give such judgment as such court ought to have given, as to the appellate court shall seem agreeable to law."

In view of these apparently discordant, or at least obscure provisions of the Code, and under sanction of Sec. 10(a) and (b) thereof, this Court has...