Lipschitz, In re

Decision Date01 March 1971
Docket NumberNo. 34120,34120
Citation466 S.W.2d 183
PartiesIn the Matter of Simone Sandra LIPSCHITZ, a minor. Shirley S. SCHWARTZ, Petitioner, v. Aaron LIPSCHITZ, Respondent.
CourtMissouri Court of Appeals

Frank Mashak, Morton L. Schwartz, St. Louis, for petitioner.

Homer N. Mastorakos, St. Louis, for respondent.

PER CURIAM:

Shirley S. Schwartz, formerly Shirley S. Lipschitz, by her petition for a writ of habeas corpus filed in this court, seeks to take her daughter, Simone Sandra Lipschitz, from the custody of the father, Aaron Lipschitz.

Petitioner and respondent were married June 24, 1951. Simone was born September 25, 1954. The parties were divorced in 1958. Primary custody of Simone was given petitioner. Thereafter, on February 23, 1966, the decree was modified, awarding major custody to petitioner and temporary custody to respondent for certain periods of time.

On June 30, 1969, the juvenile court of St. Louis County, acting upon a petition filed by the juvenile officer of the court, transferred custody of Simone to the father. Following this, on September 24, 1970, we reversed outright the juvenile court. Lipschitz v. Smith, Mo.App., 459 S.W.2d 17. A repetition of our review of the evidence in that case would serve no useful purpose, and for those interested we refer them to that opinion. The petition in that cause alleged Simone was 'without proper care, custody and treatment * * *.' After carefully considering and weighing the evidence, we concluded that the charge filed in this petition was not supported by the evidence and that the juvenile court was without jurisdiction to award custody. The reversal was without prejudice to the seeking of a modification of orders. After denial of a motion for rehearing, our mandate was forwarded to the juvenile court, where it was received November 25, 1970. A certified copy was also filed in the circuit court where the divorce was granted. On this same date, a motion for an order to show cause directed to respondent was filed in the circuit court by petitioner. This sought to hold respondent in contempt for failure to return the child to petitioner in accordance with the last order of modification.

Thereafter, in December, 1970, respondent filed a motion to modify the divorce decree and requested that custody of Simone be transferred to him. Dates of transmittal, mailing or service are not clear from the record before us, but it appears that a notice of hearing for January 8, 1971, on this motion was mailed to the attorney for Shirley S. Schwartz. But the setting was never cleared with the court and no date was subsequently determined for hearing the motion. Personal service of the motion to modify, however, was not obtained on Shirley S. Schwartz until January 22, 1971, and her answer to this motion to modify was not filed until on or about this last date.

In the meantime, petitioner sought and obtained a hearing on her motion to show cause on January 15, 1971. After a hearing, the court found that respondent had not disobeyed any order of the court and was not in contempt of court. The motion for order to show cause was denied and dismissed.

The court then added this paragraph to its order disposing of the motion for order to show cause:

'The Court does further find, order and decree that based upon evidence before it and the Court's opportunity to observe the parties in this cause that it would be to the best interest and welfare of the minor child herein, Simone Lipschitz that the care, custody and control of said minor child be transferred to Aaron Lipschitz during the pendence (sic) of his Motion to Modify for the custody of said child and until further order of this Court. * * *.'

Each of the parties rests his or her claim to custody of Simone upon the court order that favors the party. Under the last purported order of the court above quoted, respondent is entitled to custody of his daughter Simone. But under the order of the same court duly entered February 23, 1966, after a hearing on a motion to modify, petitioner is entitled to custody.

Petitioner contends that the last valid order with respect to custody of Simone was that entered February 23, 1966. She challenges the validity of the order of January 15, 1971, awarding ad interim custody of Simone to respondent because the motion to modify had not been served on petitioner until seven days after that date.

We agree with petitioner that there is no evidence of valid service of the motion or notice prior to the entry of this last order by the court. There is an admission in petitioner's answer to respondent's return that she received a notice on January 4, 1971, for a hearing on the motion to modify for January 8, 1971, but this setting was not approved by the court and no hearing was held. Personal service of the motion itself was not had until after January 15, 1971. There is nothing to show petitioner received a copy of the motion until after that date. Furthermore, although a hearing was held on January 15, 1971, as to the order to show cause, there was no hearing as to the motion to modify. A motion to modify a divorce decree is an independent proceeding. The motion is treated as a petition in an original action. Summons in the usual form need not be issued and served, for there is no particular method of service prescribed by statute or rule, but reasonable and proper notice of the motion to modify and the time it is to be called for hearing must be given the party adversely affected. And an original decree of divorce and any proper modification thereof are final and binding and cannot be disturbed except upon a proceeding and hearing for that purpose. Hayes v. Hayes, 363 Mo. 583, 252 S.W.2d 323, 328(8, 9, 10); Williamson v. Williamson, Mo.App., 331 S.W.2d 140, 142(2); Dodds v. Dodds, Mo.App., 328 S.W.2d 724, 726(3), 727(6). A movant has the burden of proving proper service of the motion to the adverse party. And proper notice in a custody proceeding is one of the requirements of due process under Section 10, Article I, Missouri Constitution of 1945, V.A.M.S. Greene v. Greene, Mo., 368 S.W.2d 426, 428. The record before us does not show reasonable and proper notice or service of the motion to modify upon petitioner prior to January 15, 1971.

It also follows and has been held that an order purporting to rule on a motion to modify without a hearing at which evidence is adduced would be in excess of the court's jurisdiction. Foster v. Foster, Mo.App., 300 S.W.2d 857, 868(4). And upon proper application prohibition will lie to prevent a court from changing a custody order...

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16 cases
  • Burchett v. Burchett
    • United States
    • Missouri Court of Appeals
    • 2 de outubro de 1978
    ...to valid judgment. Greene v. Greene, supra, l.c. 428(1-7); Williamson v. Williamson, 331 S.W.2d 140, 142(1-2) (Mo.App.1960); In re Lipschitz, 466 S.W.2d 183, 185(1-3) (Mo.App.1971); Burgess v. Burgess, 239 Mo.App. 390, 190 S.W.2d 282, 284(1, 2) (1945). The husband contends that only two day......
  • Kipper v. Vokolek
    • United States
    • Missouri Court of Appeals
    • 13 de janeiro de 1977
    ...rule on a motion to modify without a hearing at which evidence is adduced is in excess of the court's jurisdiction. In re Lipschitz, 466 S.W.2d 183, 185(4) (Mo.App.1971). We are of the opinion the three orders of the Circuit Court of Jackson County were ineffective and void insofar as they ......
  • In re Marriage of Hendrix
    • United States
    • Missouri Supreme Court
    • 14 de fevereiro de 2006
    ...Fleming v. Fleming, 562 S.W.2d 168, 170 (Mo.App.1978) (no jurisdiction to modify custody without holding hearing); In re Lipschitz, 466 S.W.2d 183, 185 (Mo.App. 1971) ("an order purporting to rule on a motion to modify without a hearing at which evidence is adduced would be in excess of the......
  • K.K.M., In Interest of
    • United States
    • Missouri Court of Appeals
    • 25 de janeiro de 1983
    ...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 consi......
  • Request a trial to view additional results

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