Lipsey v. Lipsey

• Citation: 464 S.W.2d 529
• Decision Date: 16 February 1971
• Docket Number: No. 9009,9009
• Parties: Robert L. LIPSEY, Plaintiff-Appellant, v. Frances Sue LIPSEY (now Branch), Defendant-Respondent.
• Court: Court of Appeal of Missouri (US)

Page 529

464 S.W.2d 529

Robert L. LIPSEY, Plaintiff-Appellant, v. Frances Sue LIPSEY (now Branch), Defendant-Respondent.

No. 9009.

Springfield Court of Appeals, Missouri.

Feb. 16, 1971.

George B. Scott, Jr., Poplar Bluff, for plaintiff-appellant.

Robert H. Jones, Kennett, for defendant-respondent.

STONE, Judge.

Plaintiff Robert L. Lipsey appeals from a decree of modification entered on September 23, 1969, which vested in defendant Frances Sue Lipsey 'the complete care and custody' of two children, Charlotte Dee and Annett Gail, then nine and seven years of age, respectively, born of the marriage of the parties. That union had been terminated on February 25, 1963, by a decree which granted defendant a divorce upon her cross-bill and 'by agreement between plaintiff and defendant's ordered 'that Lee and Maebell Lipsey, paternal grandparents, are to have the care, custody and control of the infant children,' with 'the costs of their support ordered paid by plaintiff.' A subsequent proceeding to modify instituted upon defendant mother's motion (not included in the transcript before us), was terminated by a decree entered on March 13, 1967, which recited, inter alia, (a) that 'by agreement of counsel, all evidence adduced in this cause is to be considered, together with evidence in causes No. 67071 and No. 67072 (not otherwise identified here)' and (b) that 'the court being advised that the parties, upon advice of their respective attorneys, have reached an agreement of the issues involved in said motion to modify . . . approves said agreement,' and then decreed modification of the original decree in that 'the permanent care and custody of the minor children . . . is vested in Mr. and Mrs. Lee Lipsey (paternal grandparents), with Frances sUe Branch, natural mother, to have temporary care and custody every other weekend . . . and thirty days in the summer, beginning July 15th to August 15th and . . . that the custody of said children be alternated between Mr. and Mrs. Lee Lipsey and Frances Sue Branch as to the holidays of Easter, Labor Day weekend, Thanksgiving, Chirstmas Eve an Christmas, and the children's birthdays, until further order of court.'

The instant proceeding was initiated on July 16, 1969, by the filing of the mother's second motion to modify alleging (a) her remarriage the residence in Kennett, Missouri, (b) the grant of 'certain specific right of visitation' to her by the decree of March 13, 1967, (c) the failure of the paternal grandparents to comply with that decree in that the grandmother 'refused to permit defendant (mother) to have the temporary custody of the above-named children on July 15, 1969, for a thirty-day visit . . . and further . . . told defendant 'she would never permit the children to visit (their mother) again,'' and (d) movant's ability 'to provide a home and education and decent living conditions' for the children, by reason of all of which the mother prayed modification granting to her their 'permanent care and custody.' Following a hearing, another decree of modification was entered on September 23, 1969, vesting 'the complete care and custody' of the children in defendant mother. From that decree, plaintiff father appeals.

With characteristic candor, plaintiff's capable counsel frankly conceded in oral argument that his client does not charge that defendant mother is unfit to have custody and does not ask custody for himself but rather asserts that the mother did not affirmatively establish her fitness and therefore seeks to restore the decretal status prior to the modification of September 23, 1969, i.e., to return the children to the major custody of their paternal grandparents who filed no pleading and no notice of appeal--this, no doubt, because grandparents are, in the eyes of the law, strangers to the proceeding to modify custody and have neither standing to litigate a motion to modify nor enforceable custodial rights by reason of their past actual custody. Stockton v. Guthary, Mo.App., 415 S.W.2d 308, 311(3), and cases there cited; Neustaedter v. Neustaedter, Mo.App., 305 S.W.2d 40, 43(5). See In re Wakefield, 365 Mo. (banc) 415, 425, 283 S.W.2d 467, 473(13).

This situation immediately casts a cloud upon instant plaintiff's standing to appeal. For the right of appeal is purely statutory and no such right exists unless accorded by statute (Kansas City Power & Light Co. v. Kansas City, Mo., 426 S.W.2d 105, 107(2); Dudeck v. Ellis, Mo., 376 S.W.2d 197, 204(2); In re Adoption of LLV and SAV, Mo.App., 457 S.W.2d 2, 3(2); Hutchinson v. Wesley, Mo.App., 455 S.W.2d 21, 23(1); V.A.M.R. 82.01), and V.A.M.S. § 512.020 grants a right of appeal only to '(a)ny party to a suit aggrieved by any judgment . . ..' ,(Emphasis 'It may be said that an aggrieved party, within the meaning of the rule governing appeals, is one having an interest recognized by law in the subject matter which is injuriously affected by the judgment, or one whose property rights or personal interests are directly affected by the operation of the judgment or decree. This does not include all those who may happen to entertain desires on the subject . . ..' 4 Am.Jur.2d Appeal and Error § 183, p. 692. 'In legal acceptation a party or person is aggrieved by a judgment, order, or decree so as to be entitled to appeal . . . whenever it operates prejudicially and directly upon his property or pecuniary rights or interest, or upon his personal rights, and only when it has such effect.' 4 C.J.S. Appeal & Error § 183b(1), p. 559. So in Schumacher v. Schumacher, Mo.App., 223 S.W.2d 841, 845(12), a proceeding to modify the custodial provisions of a divorce decree, it was said that '(g)enerally speaking, a party or person is aggrieved by a judgment, order, or decree whenever it operates prejudicially and directly upon his property, pecuniary, or personal rights.' See also Dubinsky Brothers, Inc. v. Industrial Com'n. of Missouri, Mo. (banc), 373 S.W.2d 9, 12--13.

The original decree of February 25, 1963, granted full custody of the children to the paternal grandparents; and the decree of March 13, 1967, to which the present proceeding to modify was directed, continued major custody of the children in the paternal grandparents but granted minor custody to defendant mother. Under both of those decrees, plaintiff father had nothing more than his natural parental right of access to or visitation with his children (M_ _ L_ _ B_ _ v. W_ _ R_ _ B_ _, Mo.App., 457 S.W.2d 465, 466(1); Middleton v. Tozer, Mo.App., 259 S.W.2d 80, 85(4)); and he still has that natural parental ritht under the decree of September 23, 1969, from which he now appeals. Neither the original divorce decree nor either of the subsequent decrees of modification granted more to him and in this proceeding he seeks nothing more for himself. Clearly, the instant controversy is between the paternal grandparents and defendant mother, and plaintiff's appeal is a vicarious one for the benefit of those grandparents.

We recognize that appeals are favored in the law and that, where doubt exists as to the right of appeal, it should be resolved in favor of that right. Listerman v. Day & Night Plumbing & Heating Service, Inc., Mo.App., 384 S.W.2d 111, 120(11), and cases there cited. But, having found no definition or discussion of 'aggrieved party' which within the limits of fair intendment would endow instant plaintiff with that status, it becomes our duty to dismiss his appeal.

We hasten to assure the interested parties and their counsel that, notwithstanding this disposition of the appeal, we have carefully reviewed the entire transcript, examined the briefs and all authorities cited therein, and in every respect considered the case as if it were here determinable and to be determined on the merits. This we have been moved to do, exgratia, because of the state's relaionship as parens patriae in all proceedings involving child custody (In re Shepler, Mo. (banc), 372 S.W.2d 87, 90; In re J.L.L., Mo.App., 402 S.W.2d 629, 634(5); Ex parte De Castro, 238 Mo.App. 1011, 1015, 190 S.W.2d 949, 951(1)) and because of the paramount and overriding judicial concern in all such proceedings to determine, insofar as is humanly possible, what will best serve and promote the children's welfare. Asbell v. Asbell, Mo.App., 430 S.W.2d 436, 438(4); J_ _ G_ _ W_ _ v. J_ _ L_ _ S_ _, Mo.App., 414 S.W.2d 352, 360(5); C_ _ v. B_ _, Mo.App., 358 S.W.2d 454, 459(1).

When the parties were divorced on February 25, 1963, plaintiff father was 27 years of age, defendant mother was 23, and their children were about 2 1/2 and 1. As the decree of that date recited, the children were, by agreement of the parties, placed in the care and custody of the paternal grandparents, who resided about seven miles from Campbell, Missouri, presumably in a rural area. The grandparents had eleven children of their own, five of whom then ranging in age from about 5 to 12 were still living in the family home. Plaintiff father was a member of the same household 'about three years' after the divorce on February 25, 1963. However, he remarried on December 16, 1967, and at the time of hearing resided at Bernie, Missouri, about fourteen miles from his parents' home.

We are not informed, and it is not here important, what considerations motivated either defendant mother's first motion to modify or the agreement of the parties approved in the court's decree of March 13, 1967, which in substance granted major custody to the paternal grandparents and minor custody to defendant mother on alternate weekends, holidays and (children's) birthdays and for thirty days each summer. But the record does establish, and it is here signally significant, that the children's visits with their mother pursuant to the decree of March 13, 1967, generated discord between the paternal grandmother and the mother. The grandmother said that when the children returned from visiting with their mother, 'they were so nervous and wrecked I just...