Lipschitz v. Smith

• Citation: 459 S.W.2d 17
• Decision Date: 24 September 1970
• Docket Number: No. 33606,33606
• Parties: In the Interest of Simone LIPSCHITZ, a Child, Shirley S. Schwartz, Natural Mother, Appellant, v. Ralph L. SMITH, Juvenile Officer for St. Louis County, Respondent.
• Court: Court of Appeal of Missouri (US)

Page 17

459 S.W.2d 17

In the Interest of Simone LIPSCHITZ, a Child, Shirley S.

Schwartz, Natural Mother, Appellant, v. Ralph L. SMITH, Juvenile Officer for St. Louis County, Respondent.

No. 33606.

St. Louis Court of Appeals, Missouri.

Sept. 24, 1970.

Motion for Modification or for Rehearing Denied Oct. 19, 1970.

Milton W. Schaeffer, Clayton, Frank Mashak, Morton L. Schwartz, St. Louis, Harold E. Scheppner, Jr., Webster Groves, for appellant.

Homer N. Mastorakos, A. Robert Belscher, St. Louis, Corinne R. Goodman, Clayton, for respondent.

LYON ANDERSON, Special Commissioner.

This is an appeal from a judgment rendered by the juvenile court of St. Louis County. The petition in said cause was filed September 17, 1968, by Ralph L. Smith, the acting Juvenile Officer of said court. The petition alleged that Simone Lipschitz, age 14, was 'without proper care, custody and treatment in accordance with a written report contained in the Court records.' Simone at that time was in the custody of her mother, Mrs. Morton L. Schwartz, under a divorce decree entered June 21, 1958, in an action between Mrs. Schwartz and her husband, Aaron Lipschitz.

On December 9, 1968 testimony was taken in said cause after which the court made a finding that the child was subject to the jurisdiction of the court, and ordered temporary custody to the mother subject to supervision by the juvenile officer, Susan Perry, and that the St. Louis County Welfare Services make an investigation of the home of the mother and the father, Aaron Lipschitz, and file a report with the court within 45 days; all subject to the continuing jurisdiction of the court.

Further hearings were had in April and May, 1969, and on June 30, 1969 the court rendered its judgment which appears in the transcript as follows:

'1. The custody of the child, Simone Lipschitz, is this date transferred to her father, Aaron Lipschitz.

'2. The child is to be supervised during the adjustment period by St. Louis County Child Welfare Services.

'3. Temporary custody in and the right of visitation by the mother is prohibited during the adjustment period and until further order of the Court.

'4. The Court denies the application by the attorney for the mother for attorney's fees.'

Mrs. Shirley Schwartz has appealed from said judgment.

Respondent Ralph L. Smith and Aaron Lipschitz have filed a brief in this court. In said brief it is urged, among other things, that appellant may not contest the jurisdiction of the trial court for the reason that no appeal was taken from the order of December 9, 1968. There is no merit to this contention. The said order was not a final judgment from which an appeal could be taken. It did not make permanent disposition of custody, but left that for future determination after an investigation was made of the homes of the parents and the filing of a report of same with the court. After this was done a final judgment was entered from which this appeal was perfected.

Appellant contends that the trial court was without jurisdiction of the case because it was not a case of neglect within the meaning of the juvenile code, nor was the child charged with a crime or with delinquency, but was an ordinary custody dispute of which the domestic relations court had exclusive jurisdiction, there being no unusual circumstances or emergency alleged or shown by the evidence.

It cannot be denied that where a petition is filed in the juvenile court charging that a child under the age of 17 is without proper care and treatment the court has jurisdiction to inquire into the validity of such charge. And this is true even though the child is in the custody of one of the parents under a divorce decree and the other parent seeks relief under the juvenile code rather than in the divorce court by way of modification of the decree of divorce. State ex rel. Dubinsky v. Weinstein, Mo., 413 S.W.2d 178. However, it is our view that if the charge is not supported by convincing evidence the juvenile court does not have jurisdiction to award custody, thus depriving the divorce court of its jurisdiction to determine the matter.

In ruling the point urged we review the case as we do suits of an equitable nature. Section 211.171(6), RSMo 1959, V.A.M.S. In doing so we try the case de novo, and consider such competent evidence in the record as we deem admissible and reach our conclusion as to the weight of the evidence without regard to the trial court's finding. Western Cas. & Sur. Co. v. First State Bank of Bonne Terre, Mo.App., 390 S.W.2d 913, 916. In reaching our decision we give due regard to the trial court's opportunity to judge the credibility of the witness, but we must make our own findings and thereafter enter or direct the entry of such judgment as in our opinion justice requires. Schott v. Bruce, Mo.App., 407 S.W.2d 61.

Simone was born September 25, 1954 to Aaron Lipschitz and his wife Shirley (now Mrs. Schwartz). The parents were divorced in July, 1958. By the divorce decree primary custody of Simone was granted to the mother, with temporary custody to the father on alternate weekends and for one summer month. Shirley married Morton L. Schwartz September 9, 1965. They have two children born of this marriage; Judy, born September 6, 1966, and Morton Lawrence, born August 26, 1967. In 1966 Aaron Lipschitz married his present wife, RoseLee, a widow with two children, Nancy and Steven. Nancy is the same age as Simone. Steven, at the time of trial, was less than a month of being nineteen years old. Steven was a student at the University of Missouri at Columbia. Also living in the Lipschitz's home is RoseLee's 62-year-old mother. The Schwartz family live at 12200 Country Lane, Creve Coeur, Missouri. Mrs. Dorothy Hoffman, who made a study of the Schwartz home at the direction of the court, testified that the Schwartz home was '* * * a very luxurious ranch type house. * * * the outside is beautifully landscaped. Inside, the physical setting is very luxurious with wall to wall carpeting, exquisite bathroom. * * * It has a living room, dining room, a large play room, a kitchen with a dining area adjoining it had then a separate room for laundry. It has four bedrooms and it has two and a half baths. It was just purchased for $39,000.00. * * * there is one bedroom set that looks in keeping with the house. Otherwise, the living room, dining room, are empty of furniture and the other rooms are quite sparsely furnished.' The witness testified that when she saw the house at some date after December 18, 1968, the Schwartz family had been in it just a few weeks and perhaps had not had time to furnish it. They were living at 8135 Bloom Drive, St. Louis County at the time of the hearing on December 9, 1968.

Doris Gilpin, a psychiatrist who interviewed Simone and her mother on January 18, 1969, was called as a witness by respondent. The purpose of the interview was to make an evaluation of the relationship between Simone and her mother. She considered her evaluation incomplete, but her tentative impression was that Simone was found of her mother. She found no evidence of serious emotional disturbance in Simone. She further testified that Simone could exaggerate within normal limits. Her impression of Simone was that she might be a little immature.

The events which led to the filing of the petition occurred in September, 1968. Simone was at her mother's home and had been suffering from a sinus infection. She had returned home from her father's house the night before. She was feeling better and wanted to call her father to inform him of her condition. He mother refused to permit her to make the call. Simone testified: 'I can't remember if she hit me with the phone, she must have because it got me mad * * * I closed the door and put the book shelf in front of it and I opened the window and ran out the window.' Mrs. Schwartz testified she did not hit Simone with the telephone.

After climbing through her bedroom window Simone ran to the Quick Shop which is located at Hanley and Page about two blocks from the Schwartz home. This incident occurred about four o'clock in the afternoon. After arriving at the Quick Shop Simone called her stepmother RoseLee Lipschitz and requested she come for her. RoseLee responded and arrived about ten minutes after receiving the telephone call. She took Simone in her automobile to the home of one of her friends. Simone was gone from home five days and five nights. During that time she spent the nights at her father's house and the daytime hours at the homes of friends of RoseLee.

Mrs. Schwartz testified that when she called Mr. Lipschitz in an attempt to locate Simone he told her he did not know where the child was, and Rose Lee would hang up each time she called the Lispchitz home. RoseLee testified she hung up on Mrs. Schwartz many times.

Upon advice of University City police officers Mr. Lipschitz delivered Simone to the juvenile authorities after he had been served with a writ of habeas corpus. He testified he told Simone that she must go home or to the Detention Home and she chose the latter. She was returned to her mother's home a short time after she was delivered to the juvenile authorities, and remained there until her father obtained her custody under the final decree in this case.

At the time of the first hearing the Schwartz family lived at 8135 Bloom Drive in St. Louis County. At that time Simone was attending the Normandy Junior High School. She made straight B grades and was happy at this school. Her stepfather helped her with her school work. Susan Perry, respondent's witness, when asked if Simone was a bright youngster replied that she was a little above average in that respect. Simone testified she was not doing as well at the Parkway School as she did at Normandy which, she thought, was due to the fact it was a different school and to her thinking about with whom she was going to he placed.

Mrs. Hoffman, respondent's witness, testified that...