State ex rel. Dubinsky v. Weinstein, No. 52079

• Court: United States State Supreme Court of Missouri
• Writing for the Court: HOLMAN; All concur except HENLEY; HENLEY
• 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.
• Decision Date: 10 April 1967
• Docket Number: No. 52079

Page 178

413 S.W.2d 178 STATE of Missouri ex rel. Shirley K. DUBINSKY, Relator,
v.
Honorable Noah WEINSTEIN, Judge, Circuit Court of St. Louis
County, Juvenile Division, Respondent. No. 52079. Supreme Court of Missouri, En Banc. April 10, 1967.

Page 179

Charles M. Shaw, Clayton, for relator.

Merle L. Silverstein, Rosenblum & Goldenhersh, Clayton, for respondent.

HOLMAN, Judge.

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.

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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

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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...