Marsch v. Williams

Decision Date27 December 1978
Docket NumberNo. KCD,KCD
Citation575 S.W.2d 897
PartiesRobert Edward MARSCH and Shannon Kaye Marsch, Petitioners-Respondents, v. Raymond James WILLIAMS, Respondent-Appellant. 29886.
CourtMissouri Court of Appeals

Ronald J. Prenger, Jefferson City, for respondent-appellant.

L. H. Wilbers, Jefferson City, for petitioners-respondents.

Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.

WASSERSTROM, Judge.

Robert E. Marsch and Shannon Kaye Marsch instituted this proceeding by a petition to adopt Jeremy Stirling Williams, Shannon's son by a prior marriage. Section 453.030 (all statutory references in this opinion are to RSMo 1969) by its general terms required the consent of Raymond James Williams (Shannon's former husband and the father of Jeremy) to the adoption, but he refused to consent.

A hearing was therefore held in the trial court to determine whether Raymond's consent could be dispensed with under the provisions of Section 453.040-4 on the ground that he had willfully abandoned or willfully neglected Jeremy for a period of at least one year immediately prior to the filing of the petition. After hearing the evidence, the trial court entered an order finding that Raymond had willfully abandoned and willfully neglected Jeremy for more than one year and that it would be in the best interest of Jeremy for the parental rights of Raymond to be terminated; and the court thereupon ordered that the parental rights of Raymond be terminated and that the child be placed in the custody of Robert and Shannon. Raymond appeals from that order.

The argument in this court focuses on the sufficiency of the evidence to show willful abandonment or willful neglect by Raymond. That point is relatively simple, the resolution of which would turn upon the credibility of conflicting evidence, and which would be controlled by Rule 73.01-3 and Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). See Adoption of R. A. B. v. R. A. B., 562 S.W.2d 356 (Mo. banc 1978); D. A. Z. and R. M. Z. v. M. E. T., Jr., 575 S.W.2d 243 (Missouri Court of Appeals, St. Louis District No. 39377, decided November 21, 1978). Unfortunately we cannot reach that issue because of lack of jurisdiction, in that there has been no final judgment in the trial court. Even though respondents have not raised this point, this court must notice the jurisdictional defect sua sponte. In re Smith, 331 S.W.2d 169 (Mo.App.1960); Lincoln Cty. Mem. Hosp. v. Mo. State Bd. of Med.,549 S.W.2d 665 (Mo.App.1977).

The right of appeal in this case is accorded by Section 453.060-4 which provides that an appeal under Chapter 453 shall be "in the manner and form provided by the civil code of Missouri." The applicable provision in the civil code is Section 512.020 which so far as here pertinent requires the appeal to be from a "final judgment." The Order of Temporary Custody, which included the termination of parental rights and from which this appeal is taken, does not qualify as a final judgment. As an aside it can be said that the order awarding temporary custody was unnecessary and superfluous. Shannon had been awarded custody of Jeremy by the earlier divorce decree, and Robert had come into lawful joint custody from the date of his marriage to Shannon, from which time...

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13 cases
  • Tomlinson v. O'Briant
    • United States
    • Missouri Court of Appeals
    • May 6, 1982
    ...under the provisions of § 453.010. Defendant concedes the order of August 22, 1980, was not an appealable order. Marsch v. Williams, 575 S.W.2d 897, 898(3) (Mo.App.1978). The difficulty with this point is that the objection made here was not presented in the trial court. In her responsive p......
  • Bennett v. North Brighton Townhouses, Inc.
    • United States
    • Missouri Court of Appeals
    • September 4, 1979
    ...been addressed on briefs or argument, the court must do so sua sponte for the requirement of finality is jurisdictional. Marsch v. Williams, 575 S.W.2d 897 (Mo.App.1978); Mitchell v. Commercial Standard Insurance Co., 565 S.W.2d 184 Respondents' motion sought an order setting aside the jury......
  • M. D. H., Matter of
    • United States
    • Missouri Court of Appeals
    • February 25, 1980
    ...order is not a final judgment. For example, a father may not appeal from an order transferring custody to a step-father, Marsch v. Williams, 575 S.W.2d 897 (Mo.App.1978); a petitioning would be adoptive father cannot appeal from an order removing the child from the custody of the petitioner......
  • J.E.S. v. D.L.S., 20151
    • United States
    • Missouri Court of Appeals
    • April 29, 1996
    ...the parent's minor child. In re S.B.A., supra; In re N.B., supra; In re D---- R---- E----, 696 S.W.2d 882 (Mo.App.1985); Marsch v. Williams, 575 S.W.2d 897 (Mo.App.1978); see also In re Adoption of J---- G---- L----, Jr., 853 S.W.2d at 435. Each court respectively determined that there coul......
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1 books & journal articles
  • Section 2.42 Appeal
    • United States
    • The Missouri Bar Adoption Law and Practice Deskbook Chapter 2 Practice and Procedure
    • Invalid date
    ...of custody order is not a final judgment disposing of all parties and all issues and therefore is not appealable. Marsch v. Williams, 575 S.W.2d 897 (Mo. App. W.D. 1978). An order denying the first count requesting transfer of custody for purposes of subsequent adoption effectively denies t......

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