Kipper v. Vokolek

• Decision Date: 13 January 1977
• Docket Number: No. 10057,10057
• Citation: Kipper v. Vokolek, 546 S.W.2d 521 (Mo. App. 1977)
• Parties: Allen B. KIPPER, Plaintiff-Appellant, v. John VOKOLEK, Defendant-Respondent, and Dorothy Adele Vokolek, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 521

546 S.W.2d 521

Allen B. KIPPER, Plaintiff-Appellant, v.John VOKOLEK, Defendant-Respondent and Dorothy Adele Vokolek, Defendant-Respondent.

No. 10057.

Missouri Court of Appeals, Springfield District.

Jan. 13, 1977.

Motion for Rehearing or to Transfer to Supreme Court Denied

Jan. 31, 1977.

Application to Transfer Denied March 14, 1977.

Jack L. Eisen, Joplin, Michael J. Maloney, Popham, Popham, Conway, Sweeny & Fremont, P.C., Kansas City, for plaintiff-appellant.

Henry L. Graf, Kansas City, for John Vokolek.

James H. McTurnan, Morrison, Hecker, Curtis, Kuder & Parrish, Kansas City, for Dorothy Adele Vokolek.

TITUS, Judge.

Plaintiff sued defendants, John and Dorothy Vokolek, in the Circuit Court of Jasper County seeking money damages and equitable relief because of defendants' alleged tort of unlawfully decoying or enticing away or harboring his two minor daughters against his will.Defendants filed separate motions to dismiss the petition for failure to state a claim upon which relief could be granted.Rule 55.27(a)(6).¹During a hearing on the motionsthe court sustained them and judgment was entered accordingly.Plaintiff erroneously filed notice of appeal 'from the Order sustaining defendants' motion to dismiss,' which is a nonappealable order.§ 512.020.The appeal should have been taken from the judgment, not the order.City of Sikeston v. Missouri UtilitiesCo., 526 S.W.2d 401--402(1, 2)(Mo.App.1975).Nonetheless, as we attribute to plaintiff a good faith effort to appeal from the judgment, the notice of appeal will be so treated.In Interest of R.L.P., 536 S.W.2d 41, 43(7)(Mo.App.1976);World Franchisers, Inc. v. Birk, 456 S.W.2d 606, 607(2)(Mo.App.1970).

Our initial concern is with defendantDorothy Vokolek's motion to supplement the transcript on appeal with the 'Findings of Fact, Conclusions of Law, and Judgment of Contempt,' made and entered by the Circuit Court of Jackson County at Independence on January 28, 1974, in a criminal contempt proceeding against defendantJohn Vokolek.SeeVokolek v. Carnes, 512 S.W.2d 112(Mo. banc 1974).We deny the motion.

Omitting the citations of authority, we quote with full approval what Judge Simeone had to say in Laclede Gas Company v. Hampton Speedway Company, 520 S.W.2d 625, 628--629(1--3)(Mo.App.1975).'It is elementary that an appellate court can review a cause only on the record presented. . . .The cases uniformly state that an appellate court must take the record as it comes without supplementation. . . .As to defendants' contention that the trial court treat the motion as one for summary judgment, defendants rely on . . . Rule 55.27(a)(which) provides that '. . . (i)f, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 74.04, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 74.04.'This rule authorizes the court to treat a motion to dismiss as a motion for summary judgment when matters outside the pleadings are presented and not excluded.This rule is identical to Federal Rule 12(b).While the trial court is authorized to treat the motion to dismiss as a motion for summary judgment, in interpreting this rule, federal cases have required as a minimum 'some indication by the court to 'all parties' that it is treating . . . (a motion to dismiss for failure to state a claim) as a motion for summary judgment . . ..'. . . '. . . It is important that the court give the parties notice of the changed status of the motion (to dismiss) and a 'reasonable opportunity to present all material made pertinent to such a motion by Rule 56' (Rule 74.04)' . . ..This was not done here.There was no indication in this case that the trial court considered the motions to dismiss as ones for summary judgment under Rule 74.04.There is nothing in the record to show either that the trial court notified the parties that it was treating the motions as ones for summary judgment or that the parties were given reasonable opportunity to present all material pertinent to a motion for summary judgment.Rule 55.27.'

Having concluded that sustention of the motions to dismiss for failure to state a claim was not done through a transformative process which changed the motions into ones seeking summary judgment, in considering the propriety vel non of the trial court's order we are confined to the face of the petition which we construe liberally and favorably to the plaintiff, according him the benefit of all inferences fairly deducible from the facts stated.Hall v. Smith, 355 S.W.2d 52, 55(1)(Mo.1962).If the averments of that pleading invoke principles of substantive law which may entitle plaintiff to relief, we must conclude the motions were improperly granted.Ingalls v. Neufeld, 487 S.W.2d 52, 54(4)(Mo.App.1972).

Count I of the petition says the involved minor children are those of plaintiff and defendantDorothy Vokolek and that by reason of a divorce action in the Circuit Court of Jackson County, Missouri, at Independence, the Children 'were and are subject to the orders of the aforesaid court as to their custody.'Plaintiff alleges that he obtained three orders from the Circuit Court of Jackson County, as follows:

Order of October 31, 1973--'On oral motion of (plaintiff)² and for good cause it is Ordered that (Plaintiff) be, and he is hereby, granted custody of his daughters . . . for the purpose of bringing these children before the Court for further inquiry into the circumstances of their present custodial situation and the allegation of (plaintiff) that (defendantDorothy Vokolek) intends to remove the children from this jurisdiction and transport them to a place of residency in British Hondouras (sic).It is further Ordered that (plaintiff) report to the Court by 11:00 A.M. tomorrow with the children in his custody (and) that (defendantDorothy Vokolek) be, and she is hereby, prohibited from removing the children from the State of Missouri.'

Order of November 14, 1973--'On oral motion of (plaintiff) and for good cause shown it is Ordered that (defendantDorothy Vokolek) immediately turn over to (plaintiff) their two daughters . . . who are wards of this Court.It is further Ordered that (plaintiff) within one week after obtaining actual custody of (the children) bring them before the Court for further proceedings (and) that until (the children) are brought before the Court their father(plaintiff) shall have exclusive legal custody of them.'

Order of December 20, 1973--'(Plaintiff's) motion for custody of (the children) having come on for evidentiary hearing on December 20, 1973, it is Ordered that (plaintiff's) motion be, and it is hereby sustained, and it is further Ordered that the custody of (the children) granted to (plaintiff) on October 31, 1973, pending further hearing is hereby made permanent, subject only to modification by further Order of this Court for good cause shown, and that (plaintiff's) obligation to make child support payments to (defendantDorothy Vokolek) terminated on October 31, 1973.'

The petition additionally avers that the order of October 31 was served on defendantDorothy Vokolek'in the presence and knowledge of defendantJohn Vokolek,' and that the order of November 14 was served on defendants in Corozal, British Honduras, where they were located with the children.It is not stated whether the last order of December 20 ever reached defendant's attention.The petition alleges, however, that defendants have never given plaintiff custody of the children, all 'in defiance of the lawful orders' of the Circuit Court of Jackson County, and that by reason of defendants' 'enticement and concealment' of the children, plaintiff has been and in the future will be required to expend substantial amounts of money to locate and regain custody of the children, that plaintiff has suffered 'great ansixety and mental distress,' and 'has lost companionship and affection of the children as a result of the actions of the defendant(sic).'Count I prays for $30,000 actual and $30,000 punitive damages against the defendants.

Count II of the petition realleges and incorporates by reference all allegations contained in Count I.It adds that because defendants are before the court with power to return the children to plaintiff, and because the court should afford to plaintiff'full, complete and adequate relief,'the court should issue its 'order that defendants herein produce the children into this court and that they be delivered to plaintiff.'

Reported cases dealing with the tort alleged by plaintiff usually involve actions instituted by parents or a parent against third persons.Thus, '(o)ne who knowingly and designedly decoys a minor from his home, so as to deprive the parents of his services, or harbors a minor who has left home against the will of his parents, commits a tort, and is answerable.'Arnold v. St. Louis & S.F.R. Co., 100 Mo.App. 470, 471--472, 74 S.W. 5(1903).Absent a statute giving both parents joint and equal care and custody of minor children, it was earlier said that if the parents were living together the father was the proper parent to maintain the suit because he had the exclusive right over the mother to the child's services.However, if the father died or had waived or forfeited such a right, or when the parties were divorced and the mother had been awarded the care and custody of the child, then she was the proper party to sue.67 C.J.S.Parent and Child§ 101(b), p. 852.The tort may be actionable between parents of the child where, by proper judicial decree, the sole custody of the child has been awarded to one of the parents.In such instances, the parent not awarded custody may be...