Ivey v. Ayers
| Decision Date | 08 April 1957 |
| Docket Number | No. 45711,No. 2,45711,2 |
| Citation | 301 S.W.2d 790 |
| Parties | Mrs. Floyd IVEY, Appellant, v. Leslie Eugene AYERS, Respondent |
| Court | Missouri Supreme Court |
John M. Dalton, Atty. Gen., Robert R. Welborn, Asst. Atty. Gen., Charles A. Powell, Jr., Prosecuting Atty., Macon County, Macon, for appellant.
Lawson Romjue, Macon, for respondent.
STOCKARD, Commissioner.
This is an appeal from a judgment for defendant in a proceeding brought under the Uniform Support of Dependents Law, (hereinafter referred to as the Missouri Act), Sections 454.010 to 454.200. All statutory references are to RSMo 1949, Supp.1955, V.A.M.S., unless otherwise stated. The trial court sustained defendant's objection to the admission of any evidence on the ground that the Missouri Act is unconstitutional, and then entered judgment for defendant.
On February 25, 1955, the plaintiff, Mrs. Floyd Ivey, filed her petition in the Juvenile and Domestic Relations Court at Richmond, Virginia, under the Uniform Reciprocal Enforcement of Support Act of that state (hereinafter referred to as the Virginia Act), Title 20, Chap. 5.2, Sections 20-88.12 to 20-88.31, Code of Virginia. Plaintiff alleged that she and the defendant were married on March 4, 1939, at Savannah, Georgia, but that she is now the 'divorced wife' of defendant; that she is the mother and the defendant is the father of Nicholas C. Ayers, ten years of age, who is entitled to support from defendant; that for the last five years defendant has refused and neglected to provide fair and reasonable support 'for petitioner and the other dependents according to his means and earning capacity;' and that defendant's present address is Route 3, Macon, Missouri. The prayer of the petition was for an order for support, directed to defendant, as shall be deemed to be fair and reasonable, and for such other and further relief as the law allows.
A certificate was executed by the judge of the Juvenile and Domestic Relations Court of Richmond, Virginia, which recited the filing of the petition, that he has examined the plaintiff under oath and that she reaffirmed the allegations contained in the petition; that according to her testimony the needs of the dependent named in the petition for support from defendant are the sum of $15 per week; and that in the opinion of the judge executing the certificate the petition sets forth facts from which it may be determined that the defendant owes a duty of support and that such petition should be dealt with according to law. It was ordered that 'this certificate together with certified copies of the petition' and copies of the Virginia law under which the action was brought be transmitted to the Circuit Court of Macon County, Missouri, and they were there filed on March 2, 1955.
Before proceeding to the issues presented by the parties there are two matters which deserve mention. It appears that in preparing her petition plaintiff followed a form designed for the situation where support is sought from the husband and father for a wife and family. Plaintiff is the 'divorced wife' of defendant and she is not entitled to support from the defendant. It is apparent that plaintiff intended to seek support only for her minor child. Therefore, we shall treat as surplusage those allegations in the petition which indicate that plaintiff is seeking support for herself.
We note also that this suit is brought in the name of Mrs. Floyd Ivey and not in the name of the 'obligee,' who is the minor child, by a guardian, curator or next friend. However, Section 454.107 (see Laws of Missouri 1953, p. 434) provides that 'A petition (complaint) on behalf of a minor obligee may be brought by a person having legal custody of the minor without appointment as guardian ad litem.' The Virginia Act contains the same provision. In the petition proper there is no allegation that plaintiff has the legal custody of the obligee, but there is attached to the petition answers of plaintiff to some questions asked by the judge of the Virginia court in which she states that the 'divorce court' granted her custody of the child. We shall treat the questions and answer as an exhibit to the petition. In this manner the missing and essential allegation in the petition is supplied.
The transcript on appeal discloses that on February 17, 1956, the prosecuting attorney of Macon County (representing plaintiff pursuant to Section 454.103) and the attorney for defendant appeared before the circuit court of Macon County. A discussion occurred concerning the nature of the case and the procedure to be followed, during which it developed that the defendant had not been served with any notice of the hearing. However, counsel for defendant waived this requirement and consented that the trial court proceed. It does not appear if a formal service was made of a copy of the papers as required by Section 454.120, but in any event this also was waived. The prosecuting attorney then offered in evidence the copy of the testimony of petitioner taken before the judge of the court in Virginia where the petition was first filed, and at this stage defendant objected to the admission of any evidence because the Missouri Act is unconstitutional for the contended reasons subsequently discussed. The trial court sustained the objection and stated that it considered the Missouri Act to be unconstitutional. The prosecuting attorney announced that what he had offered was 'all the evidence that the petitioner has to submit,' and judgment was then entered for defendant.
The question immediately presented is whether defendant waived his objections to the constitutionality of the Missouri Act by waiting until the offer of evidence before presenting that issue. It is the settled rule that a constitutional question 'should be lodged in the case at the earliest moment that good pleading and orderly procedure will admit under the circumstances of the given case, otherwise it will be waived.' Lohmeyer v. St. Louis Cordage Co., 214 Mo. 686, 689-690, 113 S.W. 1108, 1110. See also Colley v. Jasper County, 337 Mo. 503, 85 S.W.2d 57; City of St. Louis v. Butler Company, 358 Mo. 1221, 219 S.W.2d 372; 16 C.J.S., Constitutional Law, Sec. 96b. Ordinarily a constitutional question that could have been presented properly by the pleadings may not be injected for the first time at the trial, 16 C.J.S., Constitutional Law, Sec. 96b, and under such circumstances an objection at the trial to the introduction of evidence comes too late. Kewanee Oil & Gas Co. v. Mosshamer, 10 Cir., 58 F.2d 711. However, under the unusual and peculiar circumstances of this case, we believe the objection was timely. The Missouri Act provides for a special proceeding, and the procedure to be followed is contained in the Act itself. There is no requirement that defendant file an answer or any other pleading. See Section 454.120. Therefore, the issues are drawn for determination by the trial court of what 'orders and judgments as the court adjudges should be made' without the filing of any responsive pleading by the defendant. The effect is the same as though a general denial had been filed, which does not raise constitutional questions. But the defendant is not prohibited from filing a pleading, and this is the normal way in which constitutional issues, which constitute affirmative defenses, should be raised. However, in this case the court never obtained jurisdiction of the defendant until the defendant entered his appearance and waived notice. The next thing that happened, and that happened immediately, was the offer of the evidence by the plaintiff. Even so, defendant announced that he wanted to make his objections to the constitutionality of the Missouri Act before the evidence was offered. Under these circumstances the constitutional questions were injected into this case at the earliest moment good pleading and orderly procedure would permit.
Apparently all the other states, and the territories of Alaska, Guam, Hawaii, Puerto Rico and the Virgin Islands, have adopted acts similar to the Missouri Act. U.L.A. Vol. 9A, Misc.Acts. Prior to the enactment of these laws great difficulty was experienced in compelling husbands and fathers who left the state to provide support for their dependents. The increasing number of runaway husbands and fathers created a social problem which compelled interstate cooperation in order to obtain support for destitute dependents, and led to the enactment of the reciprocal enforcement of support laws. One of the primary purposes of these laws was to insure that he who performs a man's part in procreation shall also perform a man's part in providing support for his progeny.
The Missouri Act and the Virginia Act are substantially the same. They provide a two-state procedure in which the 'obligee' (any person to whom a duty of support is owed), or someone for him, files a simplified petition with the appropriate court in the 'initiating state.' The judge of that court examines the petition, and if he finds that it sets forth facts from which it may be determined that the defendant or 'obligor' owes a duty to support the obligee, and that a court of the 'responding state' may obtain jurisdiction of the obligor or his property, it shall so certify and cause properly certified copies of the petition and applicable law to be transmitted to the appropriate court of the responding state. Section 454.120 provides that when Missouri is the responding state, as it is in this case, the court shall docket the cause, notify the prosecuting attorney, set a time and place for hearing, serve a copy of the petition and other papers on the obligor or defendant, and then hear evidence and render such orders and judgments as are proper. With this general explanation of the procedure, we shall not examine the constitutional questions raised by defendant.
Defendant's first contention is that the Missouri Act is unconstitutional...
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