Schumacher v. Schumacher

• Decision Date: 18 October 1949
• Docket Number: No. 27597.,27597.
• Citation: 223 S.W.2d 841
• Parties: SCHUMACHER v. SCHUMACHER (LE PAGE et ux., Interveners).
• Court: Missouri Court of Appeals

223 S.W.2d 841

SCHUMACHER v. SCHUMACHER (LE PAGE et ux., Interveners).

No. 27597.

St. Louis Court of Appeals. Missouri.

October 18, 1949.

Rehearing Denied November 18, 1949.

"Not to be reported in State Reports."

Milton F. Napier, St. Louis, for appellants.

Max Sigoloff, St. Louis, for respondent.

BENNICK, Commissioner.

This is a proceeding to modify a divorce decree as respects the provision for the custody of a minor child.

The divorce action was brought in the Circuit Court of the City of St. Louis by the wife, Maryella Schumacher, against her husband, R. J. Schumacher. She prayed, among other things, that she be awarded the care and custody of the parties' minor child, Roland Forest Schumacher, then eleven years of age.

The defendant husband formally entered his appearance and answered by a general denial, but did not appear at the hearing of the cause, at the conclusion of which, in addition to a divorce, plaintiff was awarded custody of the minor child, with an allowance of $50 a month for the child's support. The decree included a provision that defendant should have the right of visitation at all reasonable times.

The divorce decree was rendered on January 13. 1947. Thereafter plaintiff, accompanied by the child, moved to Kansas City, Missouri, and took up her residence in the home of her mother, Jeannette LePage and her stepfather, Frank T. LePage. On November 25, 1947, she executed her last will and testament by the terms of which she set up a trust for the benefit of her son in any property of which she might die possessed, and not only nominated the LePages as executors of her will and trustees of the trust therein created, but also purported to designate them as guardians of her son's person and curators of his estate.

On January 2, 1948, plaintiff died, leaving the child in the home of the LePages in Kansas City, and within their actual control.

On January 22, 1948, the defendant father appeared in the Circuit Court of the City of St. Louis and filed his motion to modify the decree in the original divorce action by which plaintiff had been awarded the divorce with custody of the minor child. As the ground for his motion, he alleged that upon the death of his former wife, he, as the surviving father, had become entitled to the custody of the child, and that he had made demand upon Jeannette LePage, the child's grandmother, who had refused to permit him to have the child. He prayed the court to modify its decree so as to award the custody of the child to him.

Thereafter defendant filed a motion for a pre-trial conference, again alleging that the grandmother, Jeannette LePage, had refused to allow the child to reside with him after plaintiff's death, and praying the court to make an order directing Senator Milton F. Napier, who had been counsel for plaintiff in the divorce action, to appear in court for the pre-trial conference.

On February 6, 1948, by leave of court, the LePages, styling themselves testamentary guardians of the person and curators of the estate of the minor child, purported to intervene in the cause by filing a motion in which, after charging that it was to the child's best interests to remain in their home, they prayed that defendant's motion to modify be denied, and that they be awarded general custody of the child, subject to defendant's right of reasonable visitation and temporary custody. Attached to their intervening motion was a copy of plaintiff's last will and testament in which she had undertaken to designate them as guardians of the child's person and curators of his estate.

Immediately upon its filing, the LePages' intervening motion was heard by the court and time granted defendant for filing an answer thereto.

Instead of answering, defendant filed a motion to strike the LePages' intervening motion upon the ground that the LePages were not proper parties to the proceeding and had no legal right to intervene and be heard upon the question of the child's custody. Defendant's motion was heard and submitted, and on May 3, 1948, the court, while sustaining defendant's motion to strike, which would seemingly have called for no further action on the LePages' intervening motion, nevertheless entered an order overruling the same. At the same time the court sustained defendant's motion to modify, and directed that the care, custody, and control of the minor child be thenceforth awarded to defendant.

Three days later the LePages filed a motion for a new trial in which they set out, among other things, that their deceased daughter's estate was then in process of administration in the Probate Court of Jackson County; that they had theretofore made application to such probate court for appointment as guardians of the person and curators of the estate of the minor child; and that the probate court had entered an order authorizing them to resist defendant's motion to modify in order that the directions in plaintiff's will might be carried out and complied with. The directions referred to were, of course, the provision in the will purporting to designate the LePages as guardians of the child's person and curators of his estate. By leave of court a certified copy of the order of the Probate Court of Jackson County was filed along with the motion for a new trial.

Thereafter defendant filed a motion to strike the LePages' motion for a new trial upon the ground theretofore urged, that is, that the LePages were not proper parties to the proceeding and had no legal right to question defendant's right, as the sole surviving natural parent, to have the custody of his child. But while insisting that the LePages were strangers to the proceeding, defendant nevertheless prayed the court to "order and direct Frank T. LePage and Jeannette LePage to surrender the custody of Roland Forest Schumacher to this defendant, pursuant to the order and decree of this Honorable Court awarding the control, care and custody of said child to this defendant".

The record does not indicate that any specific action was taken on defendant's motion to strike the LePages' motion for a new trial. However on June 30, 1948, the court overruled such motion for a new trial, whereupon the LePages gave notice of appeal, and thereafter caused a transcript of the proceedings to be filed in this court.

Upon the transfer of the case to this court, defendant filed a motion to dismiss the appeal upon the ground that the LePages were neither proper parties to the proceeding nor aggrieved by the action of the court, and were consequently not entitled to appeal from its decision. The motion to dismiss has been taken along with the case. The LePages argue, on the other hand, that having been allowed to intervene and become parties to the proceeding, they were aggrieved by all the adverse orders which were entered on May 3, 1948, including the order striking out their motion, and were therefore properly entitled to appeal. As for the merits of the case, they argue that upon the death of the plaintiff mother, the divorce action abated, so that the court was thereafter without jurisdiction to modify its decree as respects the custody of the child.

The question of the LePages' right to appeal is so closely interwoven with the merits of the case that the one can hardly be considered apart from the other.

An action for divorce is a statutory proceeding giving rise to a remedy which is purely personal to one or the other of the two spouses. The primary object of such an action is of course to dissolve the marital status; and as a necessary incident to such relief the court is authorized, as a part of its decree, to make provision respecting such things as alimony for the wife and the matter involved in this proceeding — the custody and maintenance of any minor child. Nor in a case where there is a minor child to be provided for does the court exhaust its jurisdiction by the entry of the original decree. On the contrary, it retains a limited jurisdiction to make such subsequent modification and alteration of the provision for the child's custody and maintenance as changed conditions may require. Morgens v. Morgens, Mo.App., 164 S.W.2d 626.

For this purpose the action remains pending, even though the court's dissolution of the marital status of the parties has become final and conclusive. Crooks v. Crooks, Mo.App., 197 S.W.2d 686. In other words, while the parties are no longer husband and wife, they remain none...