Laumeier v. Laumeier

• Citation: 271 S.W. 481,308 Mo. 201
• Parties: BYRD LAUMEIER, Appellant, v. HERMAN HENRY LAUMEIER
• Decision Date: 13 April 1925
• Court: United States State Supreme Court of Missouri

271 S.W. 481

308 Mo. 201

BYRD LAUMEIER, Appellant, v. HERMAN HENRY LAUMEIER

Supreme Court of Missouri

April 13, 1925

Appeal from St. Louis City Circuit Court; Hon. Robert W Hall, Judge.

Judgment modified and affirmed.

T M. Pierce and Samuel H. Liberman for appellant Caruthers Ewing of counsel.

(1) The petition did not state facts entitling respondent to reopen the decree. Walsh v. Walsh, 226 S.W. 236; Petrie v. Reynolds, 219 S.W. 934; Weil v. Posten, 77 Mo. 284; Otrich v. Railroad, 154 Mo.App. 420; Call v. Moll, 89 Mo.App. 386; Drolshagen v. Railroad, 186 Mo. 258; Beall v. January, 62 Mo. 434; Rollins v. Business Men's Accident Association, 204 Mo.App. 679; Secs. 1806, 1812, R. S. 1919. (2) The judgment and decree of modification were beyond the jurisdiction of the court. Windsor v. McVeigh, 93 U.S. 274; Ex parte Nielsen, 131 U.S. 176; Cizek v. Cizek, 99 N.W. 28; Seamster v. Blackstock, 83 Va. 232; 15 C. J. 731; Bennet v. Robinson, 180 Mo.App. 56. (3) The court erred in enjoining appellant from making any claim or prosecuting her New York action. Rankin v. Rankin, 83 Mo.App. 335; McCloskey v. McCloskey, 93 Mo.App. 393; Rutledge v. Rutledge, 177 Mo.App. 469; Bennet v. Robinson, 180 Mo.App. 56; Laumeier v. Laumeier, 237 N.Y. 357. (4) The court erred in overruling the application of appellant for a continuance. Sec. 1390, R. S. 1919. (5) The judgment of modification deprives appellant of her liberty, property and civil rights without due process of law. Windsor v. McVeigh, 93 U.S. 274; Baker v. Baker, 242 U.S. 393; Laumeier v. Laumeier, 237 N.Y. 357.

Laughlin, Frumberg, Blodgett & Russell for respondent.

(1) Assignments of error on questions of jurisdiction must be ruled against appellant, for the reason that they again tender to this court precisely the same issues which heretofore have been tendered by her and have been decided against her: First, by the St. Louis Court of Appeals in the prohibition suit, and second, by this court, in State ex rel. Byrd Shoemaker v. Hall, 257 S.W. 1047, 1055. (a) Both in the St. Louis Court of Appeals and in this court appellant urged precisely the same propositions of law which she now urges for the third time, and in each case she proceeded to a final judgment on the merits. Coleman v. Dalton, 71 Mo.App. 14; Singer Mfg. Co. v. Spratt, 20 Fla. 122; Fayerweather v. Monson, 61 Conn. 431; 2 Cyc. 609. (b) The final judgment of this court in the prohibition case is res adjudicata of this controversy. State v. Hall, 257 S.W. 1055. (c) It matters not whether the former adjudication of this court was right or wrong in law, or whether, upon the facts, its conclusion was correct or incorrect; it is nevertheless conclusive between the parties in all subsequent proceedings where the same point is in issue. Turnverein v. Hagerman, 232 M. 702; State ex rel. v. Mills, 231 Mo. 493; Van Fleet's Former Adjudication, p. 24. (2) The application to the circuit court to modify the divorce decree was in no sense an independent proceeding. It was a mere incident to the original action, full jurisdiction of which, having once been acquired, still continued, carrying with it the authority to make any order relating to the care and custody of any minor child claimed by either to be the child of the parties. Nor will the removal of such child from this State and its continued residence in a foreign state of country with one party oust the circuit court of its jurisdiction to hear and determine such an application when brought by the other party. Morrill v. Morrill, 83 Conn. 479; Stetson v. Stetson, 80 Me. 484; Baily v. Schrader, 34 Ind. 260; Harris v. Harris, 71 Wash. 307; State v. District Court, 128 P. 593; Meredith v. Krauthoff, 191 Mo.App. 187; State v. Rhoades, 29 Wash. 61; Hoffman v. Hoffman, 15 Ohio St. 427; Lyon v. Lyon, 21 Conn. 185. See, also, Lessig v. Lessig, 136 Wis. 406; Williams v. Williams, 13 Ind. 528. (3) Jurisdiction of the parties to the divorce suit carried with it, as a matter of law, and as a derivation from the ecclesiastical law, the incidental power to make any order in modification of the divorce decree affecting the care or custody of any minor child claimed by either of the parties to be a child of the marriage. The court's power in this behalf was wholly independent of and untrammeled by the limitations of the pleadings. In re Gladys Morgan, 117 Mo. 265; Morrill v. Morrill, 83 Conn. 479; Van Fleet's Former Adjudication, p. 712; Marks v. Marks, 22 S.D. 453; Ex parte Sangster, 244 S.W. 924. (4) Where the power to modify the final decree as to custody of children is not given by direct permission of the statute, it is exercised by judicial construction, or as an inheritance from the ecclesiastical law. Bishop on Mar. & Div., sec. 1187; Harris v. Harris, 5 Kan. 46; Rich v. Rich, 88 Hun (N. Y.) 566; Brown v. Smith, 19 R. I. 319; Hall v. Green, 87 Me. 122; Husband v. Husband, 67 Ind. 583; Johnson v. Onstead, 74 Mich. 437; Brown v. Brightman, 136 Mass. 187; Finch v. Finch, 22 Conn. 411. See, also: Chapman v. Chapman, 269 Mo. 668. (5) The circuit court has power to modify the final decree as to custody of children from time to time as circumstances change. In re Gladys Morgan, 117 Mo. 255; In re Kohl, 82 Mo.App. 446. (6) The motion for the modification of the decree is but a continuation of the original action and not a new suit. Robinson v. Robinson, 268 Mo. 711; Cole v. Cole, 89 Mo.App. 228. (7) Even where the decree of divorce makes no provision whatever for the custody or maintenance of the child, the mother may, at a subsequent term, obtain an order modifying the decree, requiring the father to provide future means for the child's maintenance. Harris v. Harris, 5 Kan. 53; Hill v. Hill, 196 Mass. 518; Julian v. Julian, 60 Ind.App. 520; Bishop on Mar. & Div., sec. 1187; Holt v. Holt, 42 Ark. 98; Husband v. Husband, 67 Ind. 583; Connett v. Connett, 116 N. W. (Neb.) 658; Harris v. Harris, 65 Fla. 50; Shannon v. Shannon, 97 Mo.App. 119; Myers v. Myers, 91 Mo.App. 151; Chester v. Chester, 17 Mo.App. 657; In re Gladys Morgan, 117 Mo. 255. (8) Such jurisdiction extends to a child born after the divorce decree as well as to one not mentioned in the decree itself. Shannon v. Shannon, 97 Mo.App. 126; Ramsey v. Ramsey, 121 Ind. 215. (9) The adjudged and established power to modify the decree touching the care and custody of a minor child carries with it, as a necessary and incidental power, the right and duty to determine all questions which belong to the cause. Such questions include the inquiry whether a child claimed by either party to be a child of the marriage, and, therefore, a ward of the court. The authority to award the custody of children carries with it not only such powers as are expressly given, but also such as may necessarily be incidental to its exercise. Erkenbrach v. Erkenbrach, 96 N.Y. 456; Walker v. Walker, 155 N.Y. 77; Livingston v. Livingston, 173 N.Y. 377, 61 L. R. A. 800; De Vall v. De Vall, 57 Ore. 128; In re Gladys Morgan, 117 Mo. 255. (10) The evidence before the trial court showed a conspiracy on the part of appellant and others to perpetrate a fraud upon respondent, and to procure a judgment against him in New York by extrinsic as well as by intrinsic fraud. On this showing it was both the right and duty of the trial court to issue an injunction. State v. Hall, 257 S.W. 1055; Sharon v. Hill, 20 F. 1; Sharon v. Terry, 34 F. 337. (11) The fraud shown was an attempted fraud on the jurisdiction of the court itself. On such a showing it was the duty of the court to enjoin appellant not only to prevent the attempted fraud, but also to protect its own prior and paramount jurisdiction over the subject-matter attempted to be arrested, taken away and interfered with by proceedings in a New York court. This rule has its foundation not merely in comity, but on necessity. Rickey v. Miller, 218 U.S. 258; Prout v. Star, 188 U.S. 537; Sharon v. Terry, 36 F. 337; Sharon v. Sharon, 84 Cal. 424; In re Gladys Morgan, 117 Mo. 249; Ex parte Sangster, 244 S.W. 924; In re Ingenbohs, 173 Mo.App. 261; State ex rel. v. Broddus, 245 Mo. 123; State ex rel. v. Ross, 122 Mo. 435; Gas Light Co. v. Chicago, 192 F. 398; Zeitinger v. Hardinger, 244 F. 719.

White, J. All concur, except Walker, J., who dissents; Ragland, J., concurs in result and in all of the opinion except Paragraph VI.

OPINION

WHITE

This is a proceeding by defendant to modify a decree of divorce between the parties so as to determine the rights and obligations of each respecting the rights of a child born to plaintiff after the decree of divorce.

They were married July, 1918. On June 12, 1919, a decree of divorce was granted plaintiff, the court adjudging that she was the injured and innocent party, and her maiden name, Byrd Shoemaker, was restored. It is claimed by the defendant that he was tricked into the marriage, did not know it at the time, and that he never lived with plaintiff after such alleged marriage. The plaintiff claims that they did live together at various places in St. Louis, even after the suit for divorce was filed, but that defendant never acknowledged her as his wife in any public way.

The defendant was wealthy and, at the time the decree of divorce was rendered, he gave the plaintiff the sum of $ 20,000 in full settlement of all claims. In the decree of divorce no mention is made of alimony.

The plaintiff's petition for divorce sets out that the defendant refused to treat her as his wife or to introduce her as such to his friends, and neglected and refused to support her, and contains this:

"Plaintiff states there were no children born of this marriage."

On December 9, 1919, a son was born to the plaintiff in the city of St. Louis, and his name registered as Henry Shoemaker.

On October 27, 1922, the...