Shepler, In re, 49896

• Court: United States State Supreme Court of Missouri
• Writing for the Court: LEEDY; All concur, except HOLMAN
• Citation: 372 S.W.2d 87
• Parties: In the Matter of Terry Rae SHEPLER, an Infant, and Kevin Lee Shepler, an Infant. Edward R. SHEPLER, Petitioner, v. Otis Terrill SAYRES and Lorena Sayres, Respondents.
• Docket Number: No. 49896,49896
• Decision Date: 11 November 1963

Page 87

372 S.W.2d 87 In the Matter of Terry Rae SHEPLER, an Infant, and Kevin Lee
Shepler, an Infant. Edward R. SHEPLER, Petitioner,
v.
Otis Terrill SAYRES and Lorena Sayres, Respondents. No. 49896. Supreme Court of Missouri, En Banc. Nov. 11, 1963.

Page 88

J. Andy Zenge, Jr., Canton, for petitioner.

Brown & Normile, Edina, for respondents.

LEEDY, Judge.

This habeas corpus proceeding was instituted in the original jurisdiction of the St. Louis Court of Appeals. After opinion in that court (361 S.W.2d 354), and on respondents' application to this (the Supreme) court, the proceeding was ordered transferred here pursuant to Art. V, Sec. 10, Const. of Mo., V.A.M.S., and Rule 84.05, V.A.M.R. It is the fourth in a series of legal skirmishes involving competing claims, as between the natural father and the maternal grandparents, to the custody of two children, Terry Rae Shepler, now 12 years of age, and her brother, Kevin Lee Shepler, now 8 years of age. The petitioner, Edward R. Shepler, is the natural father of said children, and the respondents, Otis Terrill Sayres and Lorena Sayres, are the maternal grandparents with whom the children have been living since the accidental death of their mother, Melba E. Shepler (by drowning) on July 24, 1960.

On October 7, 1955, in the Circuit Court of Scotland County, the mother, Melba, was granted a divorce from Edward, and by the decree was awarded custody of the two children and $100 a month for their support. The children continued in her custody until the date of her death, soon after which two of the actions above referred to were instituted. Both were abortive. See Shepler v. Shepler, Mo.App., 348 S.W.2d 607, decided July 18, 1961. ¹

Page 89

Following on the heels of this decision, (on August 12, 1961) Edward brought habeas corpus in the Circuit Court of Knox County (in which county Mr. and Mrs. Sayres reside) to obtain custody of the children. On hearing and trial held August 22, 1961, before the Honorable Wm. E. Stewart, the regular judge of said court, a judgment or decree was entered in that proceeding by which it was ordered and adjudged that Edward be denied the custody of said children, and that such custody be and remain with the grandparents. Upon the overruling of his motion for a new trial, Edward sought to appeal to the St. Louis Court of Appeals, and to that end he not only filed a 'notice of appeal,' but also had prepared and approved a full transcript on appeal, consisting of 147 pages, the original of which was filed January 29, 1962, in the Court of Appeals, where the cause was numbered 31,130. While not shown by the instant record, it is apparent that appeal was subsequently dismissed, either by the appellant or by the appellate court inasmuch as no appeal lies from such a judgment. (Edwards v. Engledorf, Mo.App., 176 S.W.2d 32; State ex rel. Kassen v. Carver, Mo.App., 355 S.W.2d 324.)

Such was the state of affairs when on August 15, 1962, Edward filed in the St. Louis Court of Appeals his petition in the present proceeding. In due time that court's writ of habeas corpus issued, directed to respondents, who filed their return, and to which petitioner filed 'Answer.' The petition and return are summarized in the opinion of the Court of Appeals, which summary we adopt by reference; but in addition to those allegations so summarized, the return also alleges: '* * * that the petitioner is now employed in Phoenix, Arizona, and is engaged in an occupation which in the past has necessitated his making frequent and regular changes of residence and domicile; since the divorce between Edward R. Shepler and Melba E. Shepler, the petitioner has only visited these infant children infrequently and at no time have they ever stayed with their father overnight; that due to the neglect and abandonment of these children when Kevin Lee Shepler was one week old and Terry Rae Shepler was three years old, and his separation from them for approximately eight years, he is no more than a stranger to them; * * * that up to the date of the death of Melba E. Shepler these infant children stayed with Otis Terrill Sayres and Lorena Sayres for a week or more at a time and since the death of their mother, they have lived with the said Otis Terrill Sayres and Lorena Sayres continuously for over two years and have been provided by them with all the necessities of life; that they own their own home in Edina, Missouri, which is free of debt; that they are of good character and are financially able to provide and care for the infant children aforesaid; that in the past they have contributed materially to the support of said infant children and have on occasions provided a home for the children and their mother before her death; they are the closest relatives of the infants aforesaid with the exception of the petitioner; that they are well able and anxious to have the custody and care of said infants; * * * that both Terry Rae Shepler and Kevin Lee Shepler attended school in Edina during the past school year and made above average grades and are well assimilated into their classes; that both children have made numerous childhood friends in Edina, Missouri, and a move to a strange town and environment with strangers would entail major adjustments by these children into their new environment; that the environment to which the petitioner proposes to take these children is entirely different than the environment in which they are living and would also entail a major adjustment by these children; that for over two years these children have lived in the home of Otis Terrill Sayres and Lorena Sayres;

Page 90

that they are presently in the best mental and physical health and well-being; that to take them from the home which has been proven by the test of time to be a successful one for these children and to allow the petitioner to take them to his home where there is a serious question as to whether or not they would fare equally well would not be to the best interests of these children but would be an experiment with the welfare of the children, that they and these children have a parent-child affection for each other and to award the custody of these children to the petitioner would cause great mental pain and distrees to the children and would not be to their best interest; that because of the abandonment of these children by the petitioner they have no feeling for him and do not wish to live with him; * * *.' (The issues tendered by these pleadings are basically the same as those involved in the prior Knox County habeas corpus proceeding just mentioned.) Singularly, it was stipulated in the Court of Appeals that the transcript on appeal in said prior Knox County proceeding (being that numbered 31,130 of the causes of said Court of Appeals) 'be used as the transcript of the record in this cause.' The cause was accordingly submitted thereon, together with later filed depositions of two of Terry Rae's public school teachers, her Sunday School teacher, and her grandmother, Mrs. Sayres, plus copies of petitioner's income tax returns for the years 1959, 1960 and 1961, the great bulk of the evidence, however, being that contained in the stipulated transcript in the prior case. (Curiously, the stipulated transcript shows that such prior Knox County habeas corpus case was, by agreement, tried in part on a transcript...