Jenks v. Jenks

• Decision Date: 17 November 1964
• Docket Number: No. 31704,31704
• Citation: 385 S.W.2d 370
• Parties: Margaret M. JENKS, (Plaintiff) Respondent, v. Morton JENKS, (Defendant) Appellant.
• Court: Missouri Court of Appeals

Page 370

385 S.W.2d 370

Margaret M. JENKS, (Plaintiff) Respondent, v. Morton JENKS, (Defendant) Appellant.

No. 31704.

St. Louis Court of Appeals, Missouri.

Nov. 17, 1964.

As Modified Dec. 22, 1964.

Motion for Rehearing or to Transfer to Supreme Court Denied

Dec. 22, 1964.

Application to Transfer Denied Feb. 8, 1965.

Bartlett, Muldoon, Stix & Bartlett, St. Louis, for appellant.

Bryan, Cave, McPheeters & McRoberts, St. Louis, for respondent.

L. F. COTTEY, Special Judge.

Margaret M. Jenks, respondent herein, obtained a divorce from Morton Jenks, appellant, in the Chancery Court of Pulaski County, Arkansas, in 1956. The decree awarded respondent the custody of the four children born of the marriage, the eldest of whom, Constance, was then ten years of age. The court approved and incorporated in its decree a contract executed by the parties on the eve of their divorce whereby they undertook, inter alia, to remove all foreseeable sources of future discord between them with regard to the education of their children. The precaution itself, however, has produced further dissension. In the litigation now before us the validity of the provisions relating to the children's education is challenged. Those provisions were contained in Paragraphs 8 and 9 of the contract, reading as follows:

'8. The parties shall consult with each other regarding the education of the children and when a child is ready to enter the eighth school grade the parties shall mutually agree in writing upon the school such child shall attend. It is contemplated that each of the children shall have an opportunity to attend an Eastern school, college or university. If the parties are unable to agree upon the school to be attended by any child, the matter will be submitted to arbitration, as herein provided.

'9. If the parties are unable to agree upon the selection of summer camps as provided in Paragraph 5, or upon schools or colleges as provided in Paragraph 8, the matter shall be submitted for determination to three arbitrators, one selected by the husband, one by the wife, and one by the presiding judge having jurisdiction in domestic relations matters in the judicial district where the children reside. Determination of any two arbitrators shall be final and binding on the parties.'

The decree closed with this recitation: 'The court retains jurisdiction for the purpose of enforcing this decree.'

Following the divorce both parties, with the children in the custody of their mother, removed to St. Louis County, Missouri, where they have since resided. In advance of Constance's seventeenth birthday, and in anticipation of her eligibility at that time to apply for enrollment in an Eastern boarding school, appellant invited respondent to discuss with him the selection of the school which the child should attend. Respondent declined, asserting that the provisions of the decree in that particular were unenforceable. Thereupon, as a first step in obtaining a judicial resolution of the dispute, appellant filed in the Circuit Court of St. Louis County a petition praying for the registration of the Arkansas decree under the provisions of our Uniform Enforcement of Foreign Judgments Law, Sec. 511.760, V.A.M.S. His petition was allowed, the decree was ordered registered, and the cause was assigned to the Domestic Relations Division of that court. On the same day, in that Division, appellant filed a motion denominated 'Defendant's Motion for Order to Enforce Decree of Divorce, or, in the Alternative, for Modification of Decree.' This motion (a) recited the entry of the Arkansas decree and its subsequent registration in Missouri, (b) directed the court's attention to Paragraphs 8 and 9 of the contractual provisions incorporated in the decree, (c) averred the desirability of making a prompt selection of an Eastern boarding school to be attended by Constance, (d) complained of respondent's refusal to discuss that question, (e) voluntarily conceded that the arbitration procedure set out in Paragraph 9 of the contract was 'wholly unenforceable,' (f) declared that for that reason 'defendant has no remedy to enforce said decree with respect to the education of Constance otherwise than by this motion,' and (g) concluded with a prayer that the court require the parties to meet and discuss 'in good faith' the selection of an appropriate Eastern boarding school for the child to attend, and, in the event of their inability to agree, that 'the Court make the decision as to school attendance, and, if appropriate, make such selection for the parties and direct the parties and each of them to sign an application for such admission and enrollment,'--and for such other relief 'as to the Court may seem best for the interests of said child.'

Respondent countered with a motion to vacate the order directing the registration of the Arkansas decree because it 'is not entitled to be registered under the Uniform Enforcement of Foreign Judgments Law,' and to dismiss appellant's motion for enforcement or modification of the decree for the reasons (a) that 'the relief sought by said motion is beyond the jurisdiction of this court to grant,' and (b) that 'said motion wholly fails to state any claim upon which relief can be granted.'

On the basis of the record made by those pleadings the trial court summarily sustained respondent's motion and dismissed appellant's. The grounds upon which that ruling was based were not specified. This appeal ensued.

To sustain that portion of the trial court's ruling vacating the registration of the decree, respondent advances the proposition that the Arkansas court still retains jurisdiction of all aspects of the case involving the welfare of the children, expressly to enforce the decree on their behalf and inherently to modify it as their interests may from time to time require; hence, that to that extent the decree is not final and is therefore not entitled to full faith and credit, an essential prerequisite to its registration. From that premise, by a process of reasoning more distinguished by fervor than by clarity, respondent concludes (a) that registration of the decree in Missouri would have the effect of investing it with the quality of finality which it otherwise lacks, (b) thereby precluding a Missouri court from afterwards modifying it in any particular involving the welfare of the children, with the result (c) that any court authorizing the registration of the decree, or lending its countenance to that procedure, 'would, in essence, abrogate its position and honored function of parens patriae of Constance Mathews Jenks.'

We do not share respondent's apprehensions. Essential to the unhappy consequence she foresees is her assumption that a divorce decree cannot be said to be final as to any aspect of the adjudication over which the rendering court retains supervisory control. We think the assumption is not allowable. Every adjudication affecting the custody of the parties' children in such cases is necessarily prospective in its operation and, by reason of that very quality of prospectiveness, is subject to future review and modification in the light of changed conditions. Indeed, a court has no jurisdiction to render an immutable decree settling for all time the custody and welfare of the parties' children. In re Krauthoff, 191 Mo.App. 149, 177 S.W. 1112, 1119; 27 B C.J.S. Divorce Sec. 317(1) a, p. 521. But that circumstance, or that peculiar incident of divorce decrees, has never to our knowledge been held to destroy the final and conclusive character of the decree. On the contrary, the rule is that the decree is not deprived of 'the usual attribute of conclusiveness' even though the award of custody (a) 'is made subject to the further order of the court,' or (b) is by statute made subject to the court's continuing control, or (c) is based upon an agreement between the parties. 27B C.J.S. Divorce Sec. 316e (2), p. 509; 9 R.C.L., Sec. 293, p. 477. Following that rule this court In re Leete, 205 Mo.App. 225, 223 S.W. 962, 966, held that under Section 1, Article 4, of the Constitution of the United States, a Massachusetts divorce decree was entitled to full faith and credit in Missouri, '* * * not only as a decree of divorce dissolving the bonds of matrimony previously existing between petitioner and respondent, but as an adjudication concerning the custody of the children and the fitness of each parent thereof, in respect to all matters pertaining thereto up to the time of the rendition of said decree.' See, also, Wood v. Wood, 241 Mo.App. 367, 231 S.W.2d 882, syll. 2. And, for whatever collateral interest it may have, it is an undeniable fact that a Kansas divorce decree providing for monthly payments by the husband to the wife for the support of a child whose custody was awarded to her has actually been 'duly registered' in Missouri under the Act, notwithstanding such provision was obviously prospective in its operation and subject to future modification by the rendering court upon a showing of changed conditions. Mangold v. Mangold, Mo.App., 294 S.W.2d 368.

No authority cited by respondent, and none discovered by our own research, contains any principle suggestive of the rule for which she here contends, or any pronouncement in conflict with the views we have expressed. Our conclusion is that the Arkansas decree was final, in every proper sense of the word, and was entitled to full faith and credit in Missouri; that it was therefore properly registered under the Act and must henceforth be regarded as a final decree of the Circuit Court of St. Louis County, to the same extent and with the same effect as though originally rendered by that court. Mangold v. Mangold, supra, l. c. 369. Accordingly that portion of the trial court's order vacating the registration of the decree is reversed.

We have next to consider whether the decree should be enforced in respect of the provision relating to Constance's attendance at an Eastern...