State ex rel. Dubinsky v. Weinstein, 52079
| Decision Date | 10 April 1967 |
| Docket Number | No. 52079,52079 |
| Citation | 413 S.W.2d 178 |
| Parties | STATE of Missouri ex rel. Shirley K. DUBINSKY, Relator, v. Honorable Noah WEINSTEIN, Judge, Circuit Court of St. Louis County, Juvenile Division, Respondent. |
| Court | Missouri Supreme Court |
Charles M. Shaw, Clayton, for relator.
Merle L. Silverstein, Rosenblum & Goldenhersh, Clayton, for respondent.
In this original proceeding in prohibition relator seeks to prevent the respondent, as Judge of the Juvenile Division of the Circuit Court of St. Louis County, from proceeding further upon a petition relating to the care and custody of her daughter, Judith Ann Dubinsky, a child five years of age. After respondent had overruled relator's motion attacking the jurisdiction of the court in said cause we issued our provisional rule upon petition of relator.
The facts are not in dispute. Harlan A. Dubinsky and relator, Shirley K. Dubinsky, are the parents of Judith Ann. On January 16, 1965, a petition for divorce was filed in the Circuit Court of the City of St. Louis by Harlan. The relator filed an answer and a cross-bill for separate maintenance. The divorce case was heard on December 9, 1965, and on December 29 plaintiff was awarded a decree of divorce and relator was given custody of Judith Ann, together with a judgment against plaintiff for $300 per month child support. The court found for Harlan on relator's cross-bill for separate maintenance.
Relator filed a timely motion for new trial upon the issues of divorce and separate maintenance. On March 30, 1966, the motion for new trial was sustained by consent of the parties. On that date relator amended her cross-bill so that it prayed for divorce rather than separate maintenance. The parties also entered into a stipulation relating to custody and support in the event of a divorce. On April 7, 1966, relator was granted a divorce from Harlan on her amended cross-bill and was given the custody of Judith Ann, with right of temporary visitation custody in Harlan, and was awarded $300 per month for the support of said child.
On March 2, 1966, Harlan filed a complaint in the Juvenile Division of the St. Louis County Circuit Court and as a result thereof, by authority of respondent, the juvenile officer of St. Louis County, on the same date, filed a petition in which he alleged that Judith Ann resided in St. Louis County and that she was within the applicable provisions of Section 211.031 1 in that she 'is without proper care, custody and treatment in accordance with a written report contained in the court records.' It was further alleged that her welfare required that her custody be immediately assumed by the court. A summons was served on relator and, as stated, her attorneys have questioned the jurisdiction of the court to proceed in the juvenile matter.
As indicated, relator here contends that Judith Ann, upon entry of the divorce decree, became a ward of the circuit court of the City of St. Louis and that said court has continuing exclusive jurisdiction over said child and of the issue as to who is to have her custody. Respondent, on the other hand, here contends that while the divorce court has jurisdiction of matters pertaining to the custody of Judith Ann as relates to custodial controversies between the divorced parties, the juvenile court has jurisdiction under § 211.031 which supersedes and is paramount to the jurisdiction of the divorce court as to matters relating to the care and custody of said minor under the provisions of said § 211.031.
Our task in this case relates to the difficult area of the law concerning child custody. There are at least four separate forums in which child custody may be adjudicated. They are (1) in a divorce proceeding, § 452.070; (2) in habeas corpus proceedings, In re Duncan, Mo.Sup., 365 S.W.2d 567, 4 A.L.R.3d 1270; (3) in the juvenile division of the circuit court, Chapter 211; and (4) in a guardianship proceeding in the probate court, § 475.120(1). In that situation it is almost inevitable that conflicts of jurisdiction may occasionally develop. In the case before us it is contended that a conflict has developed between the divorce court of the City of St. Louis and the juvenile division of the St. Louis County Circuit Court. Specifically, the question before us is this: After the circuit court in the divorce case has entered a judgment adjudicating the custody of Judith Ann as between the father and mother, does the juvenile division of the circuit court of the county in which she lives have jurisdiction to consider a petition under § 211.031 so that, if Judith Ann is found to come within the provisions of said section, that court would acquire jurisdiction relating to her care and custody which could continue until she becomes 21 years of age? See §§ 211.041 and 211.181. For reasons which will hereinafter appear, we rule that in a case properly coming within the provisions of § 211.031 the jurisdiction of the juvenile court supersedes and is paramount to the incidental jurisdiction which a divorce court may have over the custody of the child of the parties.
Section 452.070 provides, in part, as follows: 'When a divorce shall be adjudged, the court shall make such order touching * * * the care, custody and maintenance of the children, or any of them, as, from, the circumstances of the parties and the nature of the case, shall be reasonable * * *.' In cases arising under that statute the courts have been almost unanimous in formulating or adopting the general rule that 'a minor child of divorced parents becomes the ward of the court which grants the decree; that the court's jurisdiction to determine where custody of the child shall go vests in such court to the exclusion of all others, and continues until the child attains its majority.' Salkey v. Salkey, Mo.App., 80 S.W.2d 735, 739. Where special circumstances and extraordinary reasons therefor appear the divorce court may refuse to give the custody to either parent and award it to a third party. McCoy v. Briegel, Mo.App., 305 S.W.2d 29; In re Wakefield, 365 Mo. 415, 283 S.W.2d 467. However, only an original party may file a motion to modify the custodial provisions of the divorce decree. Neustaedter v. Neustaedter, Mo.App., 305 S.W.2d 40(5). Also, it is settled that a divorce action abates upon the death of either party and in that event the court's power over the custody of a child completely terminates. In re Wakefield, supra; Schumacher v. Schumacher, Mo.App., 223 S.W.2d 841(9). And, although habeas corpus may be resorted to in order to enforce the custody provisions of a divorce decree, the writ may not, as a general rule, be employed to interfere with the jurisdiction of the divorce court to award custody of minor children. In re Wakefield, supra. The unusual circumstances creating an exception to that rule appear to have existed in the case of In re Duncan, supra.
The various sections of Chapter 211 were enacted in 1957 and are often referred to as the new Juvenile Act. Therein the General Assembly vested the juvenile court with broad powers relating to neglected and delinquent children. Section 211.031 provides:
'Except as otherwise provided herein, the juvenile court shall have exclusive original jurisdiction in proceedings:
'(1) Involving any child who may be within the county who is alleged to be in need of care and treatment because:
'(a) The parents or other persons legally responsible for the care and support of the child neglect or refuse to provide proper support, education which is required by law, medical, surgical or other care necessary for his well-being; except that reliance by a parent, guardian or custodian upon remedial treatment other than medical or surgical treatment for a child shall not be construed as neglect when the treatment is recognized or permitted under the laws of this state; or
'(b) The child is otherwise without proper care, custody or support; or
'(c) The behavior, environment or associations of the child are injurious to his welfare or to the welfare of others; or
'(d) The child is alleged to have violated a state law or municipal ordinance;
'(2) Concerning any minor seventeen years of age or older who may be within the county, and who is alleged to have violated a state law or municipal ordinance prior to having become seventeen years of age;
'(3) For the suspension or revocation of a state or local license or authority of a child to operate a motor vehicle;
'(4) For the adoption of a person;
'(5) For the commitment of a child to the guardianship of the department of public health and welfare as provided by law.'
While we will not attempt to review all of the provisions of the chapter, it will perhaps be helpful to point out that once jurisdiction is acquired it may be retained until the child becomes 21 years of age, § 211.041; that under § 211.181 the court, upon a finding that the child comes within § 211.031, has almost unlimited powers relating to the care, custody, physical and mental examination and treatment of the child. See also § 211.161. And the court may modify its decree at any time, § 211.151. Section 211.351 provides for the appointment of a juvenile officer who shall assist the judge in performing his duties and exercising the powers of the juvenile court. See § 211.041. Under §§ 211.440 to 211.511, inclusive, the court is given the power to terminate all rights of either parent to a child. Various sections of Chapter 211 also give the juvenile court extensive powers in regard to the care and custody of children found to be delinquent.
We are convinced that the general assembly, in enacting the new juvenile act of 1957 and certain predecessor laws of a similar nature, recognized that other laws and procedures relating to the care and custody of children were not entirely sufficient and therefore intended that the juvenile court be given paramount jurisdiction over other courts in matters relating to the care and custody of...
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