K.K.M., In Interest of

• Decision Date: 25 January 1983
• Docket Number: No. 45698,45698
• Parties: In the Interest of K.K.M., a Minor, Under Seventeen Years of Age.
• Court: Missouri Court of Appeals

Page 886

647 S.W.2d 886

In the Interest of K.K.M., a Minor, Under Seventeen Years of Age.

No. 45698.

Missouri Court of Appeals,

Eastern District,

Division One.

Jan. 25, 1983.

Motion for Rehearing/Transfer to

Supreme Court Denied

March 17, 1983.

Application to Transfer Denied

April 26, 1983.

Dewey S. Godfrey, Jr., St. Louis, for appellant.

Daniel P. Card, II, Donald W. Paule, Clayton, for respondents.

Theodore R. Allen, Jr., Hillsboro, for guardian ad litem.

SNYDER, Presiding Judge.

In this habeas corpus proceeding petitioner K.F. seeks custody of her daughter, K.K.M., who was born on August 12, 1968. Custody of K.K.M. was awarded to her father in a marriage dissolution proceeding in 1975. The father died on or about November 23, 1977 and K.K.M. has been in the actual custody since early 1978 of her paternal grandparents, respondents J.J.M. and E.M., to whom letters of guardianship were granted on May 9, 1978. Petitioner has questioned the validity of the guardianship proceedings.

This court issued its writ of habeas corpus on April 19, 1982. Now the court finds that the writ lies and orders that K.K.M. be discharged from the purported legal custody of the respondent grandparents based on the questioned guardianship proceedings, but further directs that the cause be transferred to the juvenile division of the circuit court of Jefferson County, which is directed to award legal custody of K.K.M. to the respondent grandparents, subject to any future order of the circuit court.

After the issuance of the writ, which directed respondents to show cause why they held K.K.M. in their custody, this court issued its order directing the Honorable Irvin D. Emerson, judge of the juvenile court of Jefferson County, to hold hearings and determine first, the validity of letters of guardianship dated May 9, 1978 which had been issued by the probate division of the circuit court of Jefferson County, and which appointed respondents guardians of the person of K.K.M.; and second, if the letters of guardianship were found to be invalid, to hold a hearing, receive evidence, and make a recommendation concerning the fitness of the petitioner as a parent and the custody provision which would be in the best interests of the minor, K.K.M.

Judge Emerson has filed his findings of fact and conclusions of law in which he recommended that this court rule the letters of guardianship to be void for lack of jurisdiction and that the best interests of K.K.M. require that her custody remain with the grandparents, with liberal temporary custody and visitation rights to be granted to the mother. The petitioner filed exceptions to Judge Emerson's report which she recommended be overruled. It is now this court's duty to decide whether the report of Judge Emerson should be adopted in whole or in part.

The first issue is whether the letters of guardianship appointing respondents guardian of the person of K.K.M. deprive this court of jurisdiction to issue the writ; whether this habeas corpus proceeding is an impermissible collateral attack on the prior guardianship order. The jurisdiction of the dissolution court abated when the child's father died. See G.C.J. v. G.G., 510 S.W.2d 193, 195[1-4] (Mo.App.1974). This court agrees with Judge Emerson that the letters of guardianship are void.

A question of jurisdiction may be raised at any time, and a judgment entered without jurisdiction may be attacked collaterally. Hering v. Cone, 622 S.W.2d 703, 704[1, 2] (Mo.App.1981); cf. Higgins v. Missouri Division of Family Services, 580 S.W.2d 300, 302 (Mo. banc 1979). The same general rule applies to custody orders. The legality of custody orders may properly be questioned by habeas corpus. See In re Lipschitz, 466 S.W.2d 183, 186[7, 8] (Mo.App.1971).

The defects in the pleadings and the propriety of service by publication in the guardianship proceeding thus may be considered in this habeas corpus action and the consideration does not constitute an impermissible collateral attack on the guardianship order.

Proper service of process in the manner and form prescribed by law is a prerequisite to a court's jurisdiction. State ex rel. Northwest Ark. Produce v. Gaertner, 573 S.W.2d 391, 396 (Mo.App.1978). Petitioner, the natural mother, was served by publication in the guardianship proceeding. Constructive notice must be given in strict compliance with the provisions of law. In re Marriage of Breen, 560 S.W.2d 358, 364 (Mo.App.1977).

The statement filed in the guardianship proceeding in compliance with Rule 54.17(b) was defective because the respondents knew or could have ascertained petitioner's address. This defective or improper service by publication was the equivalent of no service at all. See State ex rel. Northwest Ark. Produce v. Gaertner, 573 S.W.2d at 396.

Moreover, the failure by respondents to use their son's friendship with petitioner's brother to ascertain petitioner's whereabouts constitutes a failure to employ the most reasonable means to apprise petitioner of their action. Such failure to give petitioner "... notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections" was a violation of petitioner's right to due process under U.S. Const.Amend. XIV. See Mullane v. Central Hanover Bank & Trust, Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950).

As a result of faulty compliance with Rule 54.17(b) and the due process requirements of U.S. Const.Amend. XIV, the probate division was without jurisdiction to issue the letters of guardianship. Therefore, this court has jurisdiction because habeas corpus is a proper proceeding where a natural parent seeks to regain custody of her minor child who is held by a third party without authority of a valid court order. M.P.M. v. Williams, 611 S.W.2d 274, 277[1, 2] (Mo.App.1980); Ex parte Ray, 573 S.W.2d 152, 155 (Mo.App.1978).

Turning to the merits of the action, this court notes that whenever a minor child is brought into the jurisdiction of a court for a determination of its custody, the inquiry is in the nature of an equitable proceeding and the claims of all parties, even in the case of the parents themselves, must be subordinated to the paramount concern for the child's welfare. W. v. M., W. & W., 490 S.W.2d 64, 67[4-5] (Mo. banc 1973); Ex parte De Castro, 238 Mo.App. 1011, 190 S.W.2d 949, 951 (Mo.App.1945), cited by the Missouri Supreme Court in In re Shepler, 372 S.W.2d 87, 90 (Mo. banc 1963).

"The law presumes that the best interests of the minor children are best served by the vesting of custody in the parent." M.P.M. v. Williams, 611 S.W.2d 274, 277[3-5] (Mo.App.1980). The natural parent has a superior right to custody of the child as opposed to the interests of third parties. In re Richardet, 280 S.W.2d 466, 471 (Mo.App.1955). This superior right is not absolute, but rather, it is a rebuttable presumption which may be overcome by evidence that the parent is unfit or incompetent to take charge of the child. In re Wakefield, 365 Mo. 415, 283 S.W.2d 467, 472[7, 8] (Mo. banc 1955); G.C.J. v. G.G., supra at 195.

The judge of the juvenile division of the circuit court who heard the evidence specifically recommended that this court find that petitioner was "not necessarily and [sic] unfit parent." Although the hearing court's recommendation is not binding, this court hesitates to substitute its judgment for that of the judge who viewed the witnesses and heard the evidence.

The issue then is whether evidence of factors other than unfitness and incompetence of the natural parent may rebut the presumption that granting custody of the child to the natural parent will serve the best interests of the child. This court holds that the presumption which favors vesting of custody in the natural parent must fall whenever the best interests of the child, for some special or extraordinary reason or circumstance, mandate that custody be vested in third persons, regardless of whether the evidence establishes the unfitness or incompetence of the natural parent.

In the first reported decision in Missouri to speak to the issue (of whether special factors other than the fitness or incompetence of the natural parent may be considered in determining the best interests of the child) the Supreme Court was faced with the question of whether a natural father could be bound by a contract which gave custody of his child to the child's maternal grandparents. In the Matter of Scarritt, 76 Mo. 565 (1882). The court stated that "... it is the duty of court to award the person of the infant to the custody of the father, unless it is made manifest to the court that the father, for some reason, is unfit or incompetent to take charge of it; or unless the welfare of the child itself, for some special or extraordinary reason, demands a different disposition of it, at the hands of the court." 76 Mo. at 582. (emphasis added). The Missouri Supreme Court went on to hold that custody should be vested in the father because the contract was not binding and the best interests of the child demanded its surrender to the father.

Although strictly speaking, Scarritt does not control the issue presented in the instant case, it does point out that considerations other than parental unfitness and incompetence may be relevant in actions to determine the proper custodian of a child. Of particular importance to the case at bar is the distinction made by the court between the facts in Scarritt and the facts in other cases which might lead a court to vest custody in a third party:

Had this contest arisen three or four years ago, during the period of helpless infancy; or had it been deferred until the child grew to be some twelve or thirteen years old, and the affections of long association and tender treatment had been allowed to supplant the ties of blood, as in the case of Pool v. Gott, 14 Law Reporter 269, and...