Kelch v. Kelch

• Decision Date: 09 February 1970
• Docket Number: No. 54355,No. 1,54355,1
• Citation: 450 S.W.2d 202
• Parties: Barbara June KELCH (Martin), Appellant, v. Wayne KELCH, Respondent
• Court: Missouri Supreme Court

Page 202

450 S.W.2d 202

Barbara June KELCH (Martin), Appellant, v. Wayne KELCH, Respondent.

No. 54355.

Supreme Court of Missouri, Division No. 1.

Feb. 9, 1970.

Elliott & Marks, Murry A. Marks, St. Louis, for appellant.

McIlroy & Millan, Bowling Green, for respondent.

PAUL E. CARVER, Special Judge.

This is an appeal from an order of the Pike County Circuit Court sustaining a motion to modify a decree of divorce. Wayne Kelch and Barbara June Kelch were married in June 1961. This marriage terminated in divorce on October 18, 1965, by a decree of the Circuit Court of Pike County. The divorce was granted Barbara June Kelch, along with the care and custody of the minor children, namely, Lisa Kay Kelch and David Wayne Kelch, children born of this marriage. The court further ordered Wayne Kelch to pay the sum of twenty-five dollars ($25.00) per week as child support.

For the purpose of identity the appellant will be referred to hereafter as Barbara and the respondent as Wayne.

On May 6, 1968, Wayne filed his motion to vacate and set aside the decree awarding Barbara the custody of Lisa Kay, age five, and David Wayne, age three, alleging that circumstances had changed as follows:

'That since this time circumstances have changed regarding the Plaintiff and the Defendant and the Defendant has now married and established a home in Quincy, Illinois and has the actual physical custody of these children and is providing for their support and maintenance. Defendant further states that the Plaintiff, Barbara June Kelch, is an unfit and improper person to have the care and custody of said minor children by various acts and abandonment of the children at various times by the Plaintiff and therefore the Defendant requests that the Divorce Decree in this case be modified to award to the defendant, Wayne Kelch, custody of the two (2) minor children and that the child support award to the plaintiff in the amount of Twenty-five Dollars ($25.00) per week be vacated.'

Barbara on May 24, 1968, promptly filed her answer to Wayne's motion to modify. She admitted the divorce, the granting of custody to her of the children, and the court's order of support for the children, but denied any change of circumstances. She further alleged that her name was now Barbara June Kelch Martin. The evidence shows that she has since the divorce remarried.

On September 26, 1968, this matter came on for trial. On this date Barbara filed an application for a change of venue (really a disqualification of the judge). The trial judge denied this application. Immediately thereafter Barbara filed an application for a continuance, which the trial judge promptly denied.

The motion for a change of venue and for a continuance were filed without notice to Wayne or his attorney.

After overruling the motion for a change of venue and for a continuance, the trial began immediately on the merits. After a day and a half of hearing testimony, the trial court sustained Wayne's motion to modify and granted him custody of the two children, also relieving him of the support order of twenty-five dollars ($25.00) per week.

Barbara, in due time, filed her notice of appeal to this court. Wayne in his argument before this court agreed that this court has the appellate jurisdiction to entertain this appeal.

The appellate jurisdiction of this court is not a general one, but is specifically limited by Article V, Section 3, of the Missouri Constitution, 2 V.A.M.S. '(This section) does not denominate divorce per se a case in which an appeal lies in the Supreme Court. Consequently, appeals in divorce proceedings are usually within the jurisdiction of the courts of appeals * * *.' Rickard v. Rickard, Mo.App., 428 S.W.2d 919, 925(10).

It is our duty to inquire and determine our jurisdiction to hear cases appealed to this court whether jurisdiction be challenged or not by the parties. Sunray DX Oil Co. v. Lewis, Mo., 426 S.W.2d 44, 48(1--3); Kansas City v. Howe, Mo.App., 416 S.W.2d 683, 686(3). Neither can the parties confer jurisdiction by waiver, acquiescence, or even express consent. State ex rel. Pemberton v. Shain, (Banc), 344 Mo. 15, 17, 124 S.W.2d 1087, 1088(1); Higgins v. Smith, (Banc), 346 Mo. 1044 1047, 144 S.W.2d 149, 151(4). In fact it is our duty to make this jurisdictional determination sua sponte, United Brotherhood of Carpenters, etc., v. Industrial Comm., Mo., 352 S.W.2d 633, 635(7), so that we can protect the jurisdiction of the courts of appeals by disclaiming our own. Jenkins v. Jenkins, Mo., 251 S.W.2d 243, 245(1--2); United Brotherhood of Carpenters. etc., v. Industrial Comm., supra.

This case is presented here on the premises that we have appellate jurisdiction, because in Barbara's jurisdictional statement in her brief she states: 'Appellant contends that jurisdiction is invoked and vested in this Court pursuant to Article V, Section 3 of the 1945 Constitution of Missouri wherein this Court shall have exclusive appellate jurisdiction in all cases involving the construction of the Constitution of the United States and the Constitution of this State. Appellant contends that her rights pursuant to Article I, Section 10 of the Constitution of the State of Missouri and the Fourteenth Amendment to the Constitution of the United States have been abridged and that she has been effectively denied Due Process of Law thereby. Jurisdiction is therefore vested in this Court.'

Barbara has raised her constitutional questions through her unsuccessful proceeding to disqualify the trial judge under the provision of S.Ct. Rule 51.03, V.A.M.R., by alleging in her motion 'that to deny her a change of venue as hereinbefore prayed would deny her a right to a fair and impartial trial in violation of Article I, Sections 10 and 14 of the Constitution of the State of Missouri, and Articles 5 and 14 of the Constitution of the United States.' Supreme Court Rule 51.03, V.A.M.R., permits the disqualification of the trial judge, and S.Ct. Rule 51.06(c) provides that 'An application for change of venue or for disqualification of the judge must be filed within five days after information and knowledge of the existence of the cause alleged was acquired and not less than five days before the date set for trial on the merits * * *.'

Passing the sufficiency of the application to disqualify the trial judge filed by Barbara, but not so deciding, it appears that no notice of the filing of the application was given to the opposing party as required by S.Ct. Rule 51.06(c). This was not filed until the date of trial and was not timely filed. The failure to comply with S.Ct. Rule 51.06(c), V.A.M.R., in failing to give five days' notice of the intended application to disqualify the trial judge does not raise or preserve a constitutional question for this court...