Lipsey v. Lipsey, 9009

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

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.

Page 530

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

Page 531

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...