Middleton v. Tozer
| Decision Date | 16 June 1953 |
| Docket Number | No. 28714,28714 |
| Citation | 259 S.W.2d 80 |
| Parties | MIDDLETON v. TOZER, Sheriff. |
| Court | Missouri Court of Appeals |
Frank Mashak, St. Louis, for petitioner.
Josephus M. Todd and Louis E. Zuckerman, St. Louis, for respondent.
This is an original proceeding in habeas corpus for release of petitioner, from the custody of the Sheriff of the City of St. Louis, Missouri. She is in his custody by virtue of an order of commitment for contempt of court issued by one of the Judges of the Circuit Court of the City of St. Louis, Missouri.
Petitioner is the mother of Dorman L. Dagley and the grandmother of Cecelia Dagley, a child of the age of eight years. Dorman L. Dagley was the husband of Lucy Ellen Dagley, now Lucy Ellen Briley, who is the mother of Cecelia Dagley. On July 19, 1946, Dorman L. Dagley obtained a divorce from his wife and by the decree he was given the custody of the child, Cecelia Dagley. The decree contained no visitation privileges for the mother.
At the time of the filing of the suit for divorce by Dorman L. Dagley and the entry of the decree he was on duty in the United States Navy, in which service he has served continuously from May 5, 1942, to the present time.
At the time of the entry of the decree of divorce the minor child of the parties was about two years of age and was in the actual custody of the maternal grandparents, Floyd Newton and Edna Newton, who lived in a small town in Missouri. The child continued in their possession and custody until on or about August 6, 1952. Since the divorce, Lucy Ellen Dagley has married twice and is now the wife of Harold Briley. Dorman L. Dagley, the father of said child, has also remarried and is now stationed at San Diego Naval Base in California. In the first week of August 1952, Dorman L. Dagley visited his mother, Maggie E. Middleton, petitioner herein, who resides in the City of St. Louis, Missouri. On August 6, 1952, while still in St. Louis, Dorman L. Dagley learned that his child, Cecelia, was not at the home of Floyd and Edna Newton, the maternal grandparents, but that she was visiting an aunt, Vergie Rayfield, at Ellington, Missouri. Dorman L. Dagley, petitioner, and a nephew of petitioner, drove to the Rayfield home at Ellington, Missouri, and there they talked to the child and brought her back to St. Louis for an alleged ten day visit. It seems that prior to the trip made on August 6, 1952, to Ellington, Missouri, the petitioner herein wrote to the Newtons at Bismarck, Missouri, and in answer to this communication she learned from the Newtons that the child was with the aunt, Vergie Rayfield, at Ellington, Missouri. On August 6, 1952, after returning from Ellington, Missouri, the petitioner herein again wrote to the Newtons advising them that they had brought the child to St. Louis for a ten day visit and that the child was having a fine time and that all would do as much as possible to make the child's visit enjoyable and informed the Newtons not to worry about Cecelia. The child was not returned to either the Newtons or to Vergie Rayfield, but was removed to the State of California by the father and the child's removal was disclosed in a letter dated August 15, 1952, from San Diego, California, received by Mr. Newton, wherein the father of Cecelia informed him that he was going to keep his daughter with him for the time being, believing that it was the proper place for the child and expressing regret at the abruptness with which he had terminated the child's visit with the Newtons. He promised to write the Newtons regularly and said he would bring the child to see them. During all of the time the child lived with the Newtons, the mother of the child lived in St. Louis and would visit the child at intervals, on weekends.
On August 28, 1952, Lucy Ellen (Dagley) Briley filed a motion in the Circuit Court of the City of St. Louis to modify the decree of divorce so that said decree would place the custody and control of the child, Cecelia Dagley, in the mother. On September 6, 1952, she filed an application denominated 'Defendant's Application For Citation For Contempt Of Court And For The Production Of Child In Court.'
In this application, among other allegations, the mother of said child asserted:
'3) That plaintiff on or about August 5, 1952, without the authority of this Honorable Court, surreptitiously took the child from the State of Missouri and removed her to California where he has stated he intends to keep her, thereby depriving defendant of seeing such child within this state and denying the child the care, comfort, love, affection and protection of its natural mother and taking it away from the home in which it has been reared for practically all of its life. * * *
'6) That on or about August 5, 1952, the paternal grandmother, Mrs. M. E. Middleton, 4465 Forest Park Boulevard, St. Louis, in conspiracy with the plaintiff to remove said child from the State of Missouri and the jurisdiction of this Honorable Court, went to Bismarck, Missouri where the child has been living with its maternal grandparents, found the child was visiting for the weekend at Ellington, Missouri with an aunt and her small daughter, concealed the fact that her son, the plaintiff, was in the State of Missouri at that time and learning that the child was at Ellington, went to Ellington and induced Cecelia to leave the aunt's home by telling her that they were coming back to St. Louis and would drop her off at Bismarck; that plaintiff and Mrs. M. E. Middleton passed within a block of said home on the way back, but continued on through Bismarck and no word was communicated whatever to defendant and the maternal grandparents as to the whereabouts of the said child until a letter was received from the plaintiff dated August 15 and mailed from California.'
Said application concluded with the following prayer:
'Wherefore, defendant prays that the plaintiff and the paternal grandmother, Mrs. M. E. Middleton, be held in contempt of Court by virtue of their illegal acts in removing said child from the jurisdiction of this Court and from the State of Missouri, and that they be compelled to produce the said child in Court, and that the Court conduct a hearing as to what is best for the welfare and well-being of said child and make its order concerning the care, custody and control thereof, and for such other and further relief as to the Court shall seem meet, just and equitable.'
On the same day this application was filed, summons on said motion was ordered to issue for plaintiff to the Sheriff of San Diego, California, and a summons was ordered to issue for Mrs. M. E. Middleton to the Sheriff of the City of St. Louis, both summonses returnable within thirty days after service.
On September 16, 1952, Dorman L. Dagley filed a motion denominated 'Plaintiff's Motion To Modify Decree And For Permission To Remove Minor From Jurisdiction To Another State.' In this motion he alleged that at the time the decree of divorce was granted, the minor child Cecelia was living with her maternal grandparents, Floyd and Edna Newton, at Ellington, Missouri, and that the child was left in their care by consent of plaintiff and the said maternal grandparents until August 6, 1952; that he is now married and that he has a confortable home of five rooms at Imperial Beach, California, and that the best interests for the child would be served by giving plaintiff the right and authority to remove said child to the State of California. He further alleged that the said child was taken to California by him on August 6, 1952, after being advised by an attorney at law in the City of St. Louis that he had a legal right to do so. On the tenth day of October, 1952, he filed his answer to the motion of Lucy Ellen (Dagley) Briley to modify the order of custody. In his answer to said motion, among other things, he alleged certain facts that had been previously stated in his petition for divorce. No useful purpose would be served in setting out these facts in this opinion. It is enough to state they were of sufficient gravity, if true, to have warranted the court's action, at the time the decree of divorce was entered, in failing to provide visitation privileges for the mother. On this same day (October 10, 1952) he filed his answer to 'Defendant's Application For Citation For Contempt Of Court And For The Production Of Child In Court.' In his answer he denied that he surreptitiously took the child to the State of California and alleged again that he consulted an attorney and was advised he had a legal right to take said child to the State of California and that he was not aware that he had to obtain permission from the court before removing the child from the State of Missouri. He repeated the allegation, set out in his answer to the motion of Lucy Ellen (Dagley) Briley to modify the order of custody, that the child had been left with the maternal grandparents through an arrangement he had with them and that this arrangement, in which the mother of the child had no voice, was made because his service in the Navy at that time made his residence uncertain and he was then unable to personally care for the child. He further denied the existence of any conspiracy with his mother to take the child out of the State of Missouri.
On the same date the above mentioned answers were filed, petitioner herein filed her separate answer to the application for citation for contempt of court and in it denied that she conspired with her son to remove the child from the State of Missouri, and further alleged that she had neither the custody, nor the control of said child.
Other pleadings were filed by plaintiff and defendant in the proceedings below, the details of which are unnecessary for an understanding of the issues presented in this proceeding. On December 12, 1952, the court proceeded to hear defe...
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