Marriage of Carter, In re

Citation794 S.W.2d 321
Decision Date16 August 1990
Docket NumberNo. 16131,16131
PartiesIn re the MARRIAGE OF Cindy Lou CARTER and Jerry Dale Carter. Jerry Dale CARTER, Movant-Respondent, v. Barbara ARNETT, Maternal Grandmother-Appellant.
CourtCourt of Appeal of Missouri (US)

No appearance for movant-respondent.

Joseph W. Rigler, Law Office of J. Max Price, for maternal grandmother-appellant.

MAUS, Judge.

The marriage of Cindy Lou Carter and Jerry Dale Carter was dissolved January 10, 1986. The court distributed their property and placed custody of the parties' three minor children with Mrs. Barbara Arnett, the maternal grandmother. Each parent was ordered to pay child support to the grandmother. The father's Motion to Modify was filed June 24, 1987. The mother died before that motion was heard on October 25, 1988. The court modified the decree of custody by awarding the legal and actual custody of the three minor children to the father, Jerry Dale Carter, granting the grandmother specified periods of temporary custody and visitation. The father's obligation to pay child support was terminated. A supersedeas bond was posted. The grandmother appeals.

This court must first address the grandmother's contention that upon the death of the mother the dissolution action abated and the trial court had no jurisdiction to modify the custody decree. She cites cases and relies upon the following language:

"Prior to the dissolution act, a Missouri court derived its jurisdiction over a divorce proceeding from the divorce action itself. Schumacher v. Schumacher, 223 S.W.2d 841, 845 (Mo.App.1949). The death of either spouse abates that jurisdiction. Thereafter, the court no longer maintains the authority to modify a divorce decree. Id. See also, In re B.R.F., 669 S.W.2d 240, 244 (Mo.App.1984); Leventhal v. Leventhal, 629 S.W.2d 505, 507 (Mo.App.1981). When, in the case at bar, the mother died, the continuing jurisdiction of the divorce court over custody abated. Tomlinson v. O'Briant, 634 S.W.2d 546, 548 (Mo.App.1982). The present Dissolution Act has not changed those principles. In re B.R.F., supra at 244." In re Marriage of Tuttle, 764 S.W.2d 99, 100 (Mo.App.1988).

At first blush, that language lends credence to the grandmother's contention.

In general, an action which is personal abates upon the death of a party. 1 Am.Jur.2d, Abatement, Survival, and Revival, § 49. Initially, a decree dissolving a marriage is premised upon the resolution of the issue of the marital status of the two individuals. That issue is personal to those individuals. When an action is pending upon the issue of marital status, it is appropriate to hold that such an action abates upon the death of either husband or wife. State ex rel. Dubinsky v. Weinstein, 413 S.W.2d 178 (Mo. banc 1967). However, an action for the dissolution of marriage may involve not only the issue of marital status, but also the issue of the distribution of property and the issue of the custody of children. When the issue of marital status has been resolved by a decree dissolving a marriage, the issue of the distribution of property is not personal. On that basis, the death of a party after a decree of dissolution has become final does not cause an action pending on the issue of the distribution of property to abate. Fischer v. Seibel, 733 S.W.2d 469 (Mo.App.1987). 1

The issue of the custody of children between a husband and wife is personal. As stated, if either dies before the entry of a decree of dissolution, the action, including the issue of custody, abates. 2 If either dies after a decree of dissolution, but before an order of custody, the action abates as to that issue. However, the entry of an order of custody does not terminate an action for dissolution. In effect, it remains pending for a possible modification of the decree of custody. In re Wakefield, 365 Mo. 415, 283 S.W.2d 467 (banc 1955). 3 See also Schumacher v. Schumacher, 223 S.W.2d 841 (Mo.App.1949). If a father and mother are the only parties to a decree of custody, upon the death of either, the action abates.

"An order awarding the custody ... is a final order entitled to the force and effect of a final judgment, unless and until modified by the court making the decree.... The effect of such order may, of course, cease upon the death of one of the parties to the divorce action, for such action thereupon abates." In re Wakefield, supra, 365 Mo. at 422, 283 S.W.2d at 471.

Also see In re Marriage of Tuttle, supra; In re B.R.F., 669 S.W.2d 240 (Mo.App.1984); Tomlinson v. O'Briant, 634 S.W.2d 546 (Mo.App.1982); Leventhal v. Leventhal, 629 S.W.2d 505 (Mo.App.1981).

However, under current practice the father and mother often are not the only parties to the issue of child custody. For example, in this case, the decree of dissolution placed the children in the custody of the grandmother. At that time, the provisions of § 452.375 included the following:

"The court may award joint physical custody or joint legal custody, or both, to both parents or sole custody to either parent, or, when the court finds that each parent is unfit or unable, and that it is in the best interest of the child, then to a third party." § 452.375.3 RSMo 1986. (Emphasis added.) 4

This is a codification of previously recognized authority. State ex rel. Dubinsky v. Weinstein, supra; In re Marriage of Campbell, 685 S.W.2d 280 (Mo.App.1985); In re Marriage of Garner, 651 S.W.2d 564 (Mo.App.1983). Under the statute cited, an award of custody to a third party should have been based upon a written request. 5 Such an award should be followed by a written acceptance and acknowledgement of the decree. However, an actual exercise of custody can constitute such an acceptance and acknowledgement. In either manner, the third party becomes a party to the action on the issue of modification of the custody decree.

"Thus, although grandparents, or other third parties have no standing to litigate either custody or visitation where they claim such standing on the basis of actual custody unsupported by any decretal rights ... trial courts nonetheless have authority to place children with third parties when the natural custodians, the parents, are unfit or unable to undertake that custody. When so decreed, the third parties become the legal custodians." Warman v. Warman, 496 S.W.2d 286, 289 (Mo.App.1973). (Emphasis added.)

As a general rule, the death of a co-party does not cause an action to abate. 1 Am.Jur.2d, Abatement, Survival, and Revival, § 49. In the event of the death of either father or mother when custody has been awarded to a third party, the action does not abate as to the issue of custody between the surviving parent and the third party. Warman v. Warman, supra. 6

In this case, the decree of dissolution, in an action to which the father was a party, found the grandmother was a fit and proper person to have custody of the three children. It awarded their custody to her. She assumed that custody and provided the children with care and a home. By her actions, the grandmother became a party to that action. The decree under which she provided that care should not lose its vitality upon the death of the mother. The grandmother was named as an adverse party in the father's Motion to Modify. The issue of custody between the father and grandmother was before the court under its jurisdiction stemming from the dissolution action and as to that issue the action did not abate on the mother's death.

The grandmother's basic contention is that the trial court erred in modifying the decree of custody because, when measured by the correct standard, there is no substantial evidence to support that modification, or in the alternative, that modification is against the weight of the evidence.

The fundamental standard to be followed in awarding custody is established by § 452.375. That standard is the following:

"The court shall determine custody in accordance with the best interests of the child. The court shall consider all relevant factors including: ...."

It is not necessary to restate here the factors declared by that section to be relevant. It would be impossible to restate here the factors declared by decision to be relevant. It must be acknowledged that, even though the evidence is undisputed, the weighing or balancing of the factors relevant to the best interests of the child is, in one sense, determining the weight of the evidence.

The fundamental standard governing the modification of a decree of custody is likewise established by statute. In relevant part § 452.410 provides:

"The court shall not modify a prior custody decree unless it has jurisdiction under the provisions of section 452.450 and it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child."

Precepts to be observed in the application of that statute include the following.

"Generally speaking, except for good reason, a minor child should not be shifted periodically from one home to another. It is unwise to transfer custody frequently and not at all unless it is demonstrated by a preponderance of the evidence that the continued well-being of the children requires the change." Bashore v. Bashore, 685 S.W.2d 579, 581 (Mo.App.1985).

"[T]he cases emphasize the need for a showing of a significant change of circumstances directly affecting the welfare of the child in order to justify a custody change. The change in circumstances must be such as to give definite promise that the custody change will benefit the child in a substantial way." Schmidt v. Schmidt, 591 S.W.2d 260, 262 (Mo.App.1979).

"The change required by this statute must relate to a change in circumstances of the children or of their custodian, not the non-custodial parent." In re Marriage of D.L....

To continue reading

Request your trial
21 cases
  • White v. White
    • United States
    • Missouri Court of Appeals
    • June 23, 2009
    ...to proceedings, and court continued uncle and aunt's custody finding "special or extraordinary reasons."); In re Marriage of Carter, 794 S.W.2d 321, 321-24 (Mo.App. S.D. 1990) (Dissolution action in which court placed custody of children with maternal grandmother and father later sought mod......
  • Olofson v. Olofson
    • United States
    • Missouri Supreme Court
    • July 22, 2021
    ...after the death of a party-parent. 827 S.W.2d at 234. Child custody also is an issue personal to the parties. Marriage of Carter v. Arnett , 794 S.W.2d 321, 322 (Mo. App. 1990).Each case involved rights and obligations personal to the parties, and in each case, those personal issues abated.......
  • Olofson v. Olofson
    • United States
    • Missouri Supreme Court
    • July 22, 2021
    ...the death of a party-parent. 827 S.W.2d at 234. Child custody also is an issue personal to the parties. Marriage of Carter v. Arnett, 794 S.W.2d 321, 322 (Mo. App. 1990). Each case involved rights and obligations personal to the parties, and in each case, those personal issues abated. Altho......
  • L.W.F., In Interest of
    • United States
    • Missouri Court of Appeals
    • November 13, 1991
    ...one person being available for supervision]." In re Adoption of T.E.B.R., 664 S.W.2d 609, 613 (Mo.App.1984). Also see In re Marriage of Carter, 794 S.W.2d 321 (Mo.App.1990). In weighing the factors involved, the alternatives for the future of the child must be considered. In this case, the ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT