Sanders v. Sanders

• Decision Date: 15 January 1931
• Docket Number: No. 4843.,4843.
• Citation: 34 S.W.2d 712
• Parties: JOHN O. SANDERS, PLAINTIFF IN ERROR, v. LEOTA G. SANDERS, DEFENDANT IN ERROR.
• Court: Missouri Court of Appeals

34 S.W.2d 712

JOHN O. SANDERS, PLAINTIFF IN ERROR, v. LEOTA G. SANDERS, DEFENDANT IN ERROR.

No. 4843.

Springfield Court of Appeals. Missouri.

January 15, 1931.

Writ of Error to the Circuit Court of Barry County. — Hon. Emory E. Smith, Judge.

REVERSED AND REMANDED.

John O. Sanders for plaintiff in error.

D.H. Kemp for defendant in error.

COX, P.J.

Proceeding to change an order of the circuit court of Barry county awarding the custody of two minor children to defendant. The court found for defendant, plaintiff sued out this writ of error asking this court to reverse the action of the trial court. Plaintiff sometime ago sued defendant for divorce in the circuit court of Barry county, Missouri, and asked that the custody of these two minor children be awarded to him. The defendant was then a resident of the State of Maryland and service was had upon her by publication. She knew nothing of the divorce proceeding. These minor children were then in her custody in the State of Maryland. The circuit court of Barry county granted plaintiff a divorce and also awarded him the custody of these children, although they were then in the custody of their mother in another State. Later defendant filed a motion in the circuit court of Barry county asking a modification of the divorce decree as to the custody of the children and upon that hearing the court awarded the custody of these children to defendant. That case was appealed by plaintiff to this court and upon determination of that appeal here, the judgment of the lower court was modified in certain parts and as modified affirmed. [See 14 S.W. (2d) 458.]

This proceeding seeks to change the last order of the court as to the custody of the children and place that custody back with plaintiff. At the trial, the court refused to hear any testimony offered by plaintiff as to what had occurred and the conduct of defendant at any time prior to the date when the mandate of this court on the appeal from the order granting the custody of these children to defendant was filed with the clerk of the Barry county circuit court, to-wit, June 1, 1929. Plaintiff contends that he should have been permitted to go back to the date of the last order fixing the custody of the children. In that contention, we think the plaintiff is right. When the circuit court made its first order awarding the custody of these children to defendant, that became res adjudicata as to everything that had occurred prior to that time, but could not be...