McCoy v. Briegel
| Citation | 305 S.W.2d 29 |
| Decision Date | 03 September 1957 |
| Docket Number | No. 29881,29881 |
| Parties | Marcella Mae McCOY (formerly Marcella Mae Briegel) (Plaintiff), Appellant, v. Theodore BRIEGEL, Defendant. |
| Court | Missouri Court of Appeals |
William Waye, Jr., St. Charles, for appellant.
William L. Hungate, Troy, amicus curiae.
This action involves the custody of plaintiff's son, Richard D. Briegel. Plaintiff has appealed from an order overruling her motion to modify and denying her custody of Richard. Inasmuch as an attack is made against the validity of the original order which denied plaintiff custody, it is essential that the proceedings antedating and following the questioned order be reviewed.
On December 22, 1947, following service on the defendant by publication, plaintiff was divorced from the defendant by a judgment rendered in the Circuit Court of Lincoln County, Missouri. Instead of disposing of the question of custody of the three minor children at the time the decree was entered, the court 'ordered that the matter of custody of the children born of the marriage, to-wit: Daniel Guy Briegel, Richard D. Briegel, and Barbara Kay Briegel be held in abeyance until further order of this court'. Thereafter, and on May 14, 1948, the court acted by denying plaintiff custody of her children. That order (under attack in this proceeding) reads:
Following this action and pursuant thereto the Child Welfare Officer of St. Charles County placed Richard D. Briegel (the subject of this proceeding) in the home of Mr. and Mrs. Ray Dowell of Bowling Green, Missouri, and Barbara Kay in another home. On June 8, 1948, the court approved the action of the Child Welfare Officer as shown by its order: 'Court approves the placement of these children and the plaintiff is ordered to provide the proper care and maintenance for said children, Richard and Barbara Kay.'
Plaintiff took action on April 21, 1949, to regain custody of the two children who had been placed in other homes by filing a motion to modify the original decree. In that motion plaintiff alleged that since the granting of the divorce, and on October 9, 1948, she had married Ernest McCoy; that they were residing in St. Charles, Missouri; that her husband's earnings were $55 a week and that she and her husband were able to properly support, provide for, and maintain her children. She alleged that she was being deprived of a right to visit her son Richard because of lack of co-operation on the part of the 'St. Charles County Social Security Commission.' Plaintiff prayed the court to cancel the orders of May 14, 1948, and June 8, 1948, and to award her full custody and control of Richard D. and Barbara Kay. Apparently a hearing was held on this action but the record before us does not disclose the date thereof or the evidence offered. It was not until July 28, 1950, that the court formally acted on the motion, at which time we find this order was rendered:
Plaintiff again instituted proceedings on February 20, 1954, designed to regain custody of Richard D., at which time she filed the 'motion to modify the divorce decree' which is the basis for the instant proceeding. Service was obtained upon defendant by publication. In this motion plaintiff alleged that the order of May 14, 1948, placing the children in the custody of the 'St. Charles County Social Security Commission' for placement in homes is null and void and of no effect. The alleged reason for the invalidity of the May 14th order is that the court was without jurisdiction in the divorce case to find that 'said children were homeless and neglected by their mother and that she cannot properly care for them * * *'. Plaintiff's pleaded theory was that the order of May 14, 1948, could be made only in a proceeding instituted pursuant to and by authority of Secs. 211.310 to 211.510 RSMo 1949, V.A.M.S., designed to provide a method for dealing with neglected and delinquent children. There is a further allegation in the motion that plaintiff 'is now the wife of Ernie McCoy, who is gainfully employed and is willing and able to care for all of said children including said Richard Briegel * * *; that petitioner's said husband is willing to adopt all three of said children, including said Richard Briegel, if the custody of said Richard Briegel is awarded to her.'
Raymond R. Dowell and Alva, his wife, filed their application requesting the court to permit them to intervene in the cause. Therein they alleged as a reason for said request that they had legal custody of Richard and that they may be adversely affected by the decision of the court. Simultaneously with the filing of their application to intervene the Dowells filed a motion to dismiss plaintiff's motion to modify as well as their answer thereto. In their answer the Dowells pleaded that they have had custody of Richard since May 14, 1948, and since said date and long prior thereto plaintiff had neglected to afford Richard proper care and maintenance. The court denied the application to intervene upon the authority of Schumacher v. Schumacher, Mo.App., 223 S.W.2d 841, and Wilson v. Wilson, Mo.App., 260 S.W.2d 770. In ruling the application the court further stated:
The court thereupon appointed Hon. William L. Hungate, a member of the bar, as amicus curiae and directed him to present to the court 'such matters of fact and law as he deem of general interest to the Court herein, and otherwise show cause, if any there be, why plaintiff's motion to modify the decree of divorce herein should not be granted'. Mr. Hungate not only accepted the appointment but it should be said that he conscientiously and ably complied with the court's directions. He cross-examined witnesses for plaintiff, and offered and examined witnesses--all in an effort to bring forth facts which would assist the court in resolving the vital and paramount question of whether there had been a change in circumstances and conditions requiring modification of the existing custodial provision. The amicus curiae pursued the cause in this court by filing a comprehensive brief and by presenting an oral argument. After the trial, which was held on September 9, 1955, the Honorable George P. Adams, Special Judge, the regular judge of the circuit having disqualified himself, considered memoranda submitted by counsel for plaintiff, and by the amicus curiae. In denying the motion to modify the trial court stated that the only issue that had been presented by counsel for plaintiff in his memorandum was the validity of the order of May 14, 1948. The court, expressly limiting its consideration to that issue, found against plaintiff, who, as stated, has brought the case to this court for review.
Although plaintiff, through able counsel, urges with much insistence that regardless of any and all circumstances, she, as the mother of Richard, is entitled to his custody, she is equally sincere and insistent in contending that the order of May 14, 1948, which denied her the custody of her children is wholly null and void. The argument is advanced that the finding 'that these children are homeless and have been neglected by their mother and she cannot properly care for them' was not only unauthorized in a divorce proceeding, but that it 'could have been made only after proceeding as provided for in Sections 211.360, 211.370, 211.380, and 211.390, RSMo 1949' (relating to delinquent and neglected children); and because there was 'no hearing at that time or prior thereto concerning the rights of the plaintiff and custody of her children'. We have carefully considered the questioned order or judgment in the light of applicable principles and have concluded that all of the elements essential to the validity of the order were present at the time of rendition thereof.
It is, of course, a well-settled rule that a judgment rendered by a court having no jurisdiction is a mere nullity, and will be so held and treated whenever and for whatever purpose it...
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