State ex rel. Stoffey v. La Driere

• Decision Date: 23 December 1954
• Docket Number: R,No. 1,No. 29143,1,29143
• Parties: STATE of Missouri, at the Relation of Virginia Boain STOFFEY, Relator, v. The Honorable Raymond E. LA DRIERE, Judge of the Circuit Court of the County of St. Louis, Divisionespondent.
• Court: Missouri Court of Appeals

Page 776

273 S.W.2d 776

STATE of Missouri, at the Relation of Virginia Boain STOFFEY, Relator, v. The Honorable Raymond E. LA DRIERE, Judge of the Circuit Court of the County of St. Louis, Division No. 1 Respondent.

No. 29143.

St. Louis Court of Appeals, Missouri.

Dec. 23, 1954.

Charles M. Shaw, Wayne C. Smith, Jr., Clayton, for relator.

E. H. Tenney, Jr., St. Louis, for respondent.

SAM C. BLAIR, Special Judge.

This is an original proceeding by certiorari to the Circuit Court of St. Louis County, Division One. Respondent judge waived service of the writ and made return in due course.

Relator's husband obtained a decree in respondent's court divorcing him from her and awarding him custody of their minor children. The provision of the decree which divorced the parties is not questioned by this proceeding. What relator is seeking is our order quashing only the provision awarding the custody of the children to her husband and depriving her of custody.

Owing to the fact that the return embraces some matters of irrelevance which relator intimates we should take into account, it is worthwhile for us to notice some characteristics of the common-law writ of certiorari with which we are dealing and for us to observe some of the rules confining the area of our review in this instance.

The salient function of the writ is to restrict inferior tribunals to the limits of their jurisdiction. It cannot be utilized as a substitute for an appeal. The review it authorizes is quite narrow in scope and long since plainly defined. The sole function of the reviewing court is to quash or to refuse to quash the record of which complaint is made. The proceeding presents only questions of jurisdiction apparent on the face of the record and does not contemplate or permit consideration of evidence or issues of fact, even though the return incorporates such evidence or issues through misunderstanding or otherwise. State ex rel. St. Louis Union Trust Co. v. Neaf, 346 Mo. 86, 92, 99, 139 S.W.2d 958, 961, 966; State ex rel. Police Retirement System of City of St. Louis v. Murphy, Judge, 359 Mo. 854, 224 S.W.2d 68; State ex rel. Missouri Baptist Hospital v. Nangle, Judge, Mo.App., 230 S.W.2d 128; State ex rel. Renner v. Alford, Judge, 343 Mo. 576, 578, 122 S.W.2d 905, 906; State ex rel. Woodmansee v. Ridge, 343 Mo. 702, 123 S.W.2d 20; State ex rel. Shartel v. Skinker, 324 Mo. 955, 25 S.W.2d 472; State ex rel. Mount Mora Cemetery Ass'n v. Casey, 210 Mo. 235, 109 S.W. 1. The instant return embraces a transcript of all evidence and exhibits presented at the trial of the divorce suit. Much of relator's argument here is grounded on that transcript. That transcript we are compelled to disregard, and we must also ignore the arguments relator advances with it as a foundation. Our review is restricted to questions of jurisdiction apparent on the face of the record, and those questions must be resolved by what that record presents.

Allegations of the petition for the writ, although undenied, cannot be regarded as establishing any fact not shown by the record returned. The single office of the petition is to secure issuance of the writ. It disappears from the proceeding when it has served that purpose, except reference is sometimes made to it for elucidation of assignments of error directed at the record under review. State ex rel. St. Louis Union Trust Co. v. Neaf, supra, 139 S.W.2d 962. Accordingly, all of relator's arguments referring us to the petition for ascertainment of facts which she deems pertinent must be disregarded.

The return discloses these relevant facts: On April 18, 1953, relator's husband sued her for divorce and prayed for the custody of their two minor children. On that date, relator was absent from the state and had the children in her custody. Personal service in this state being impossible, an attempt was made to obtain service on relator by registered mail but it was unavailing. Thereafter, the essential procedures to obtain service on relator by publication were taken and legal service was obtained in that way. Relator failed to appear or plead as required and, on June 24, 1953, her husband was granted a default and inquiry, and the cause was set for trial on June 26, 1953. On that date, with relator still defaulting, there was a trial which resulted in a decree granting the husband a divorce and awarding him the custody of the minor children. It is acknowledged in this proceeding that the children were in the custody of relator and physically absent from this state when the suit was instituted, during its entire pendency, and when the award of their custody was made.

Following the entry of the decree on June 26, 1953, relator appeared before respondent judge on September 11, 1953, and filed a 'Motion to Modify Divorce Decree as to Custody of Children' presenting substantially the same questions presented by this proceeding. The motion was stricken.

The record does not disclose that relator undertook a timely appeal from the decree or an untimely appeal from it by applying to the appropriate appellate court for a special order permitting her to file notice of appeal within six months from the date the decree became final. Section 512.060 RSMo 1949, V.A.M.S. On the contrary, and although she appeared in court two months and seventeen days after entry of the decree, she selected this extraordinary proceeding to present her complaints, waiting until July 7, 1954, to institute it.

The courts of this state possess judicial power to award the custody of children to a parent obtaining a divorce in this state, even though the children are physically absent from this state and in the custody of the other parent, provided the latter, although absent also, continues domiciled in this state. In such situation, it is ruled that the domicile of the absent children is the same as that of the absent parent who has their custody. If the absent parent retains his domicile in this state, the children in his custody are also domiciled here, and the status of their custody is a thing or res within the jurisdiction of our courts. An order awarding custody of such children is an authorized exercise of judicial power and valid. Moreover, our courts may exercise such power when the only service is by publication and no personal service is obtained on the parent having custody. Beckmann v. Beckmann, 358 Mo. 1029, 218 S.W.2d 566, 568, affirming the decision of this court in the same suit in Beckmann v. Beckmann, Mo.App., 211 S.W.2d 536. Although relator does not entirely agree with our interpretation of these decisions, and argues for a differentiating analysis, we are convinced that they do declare such authority to exist in our courts, and just as we describe it.

Even granting our interpretation, relator contends that these decisions do not authorize the award of custody which was made because the averments of the petition for divorce demonstrate, she says, that she had abandoned her domicile in this state and had established another in a foreign state. In the absence of appropriate averments that her domicile actually was in this state, she says the petition was wholly insufficient to confer jurisdiction to enter any order touching the custody of the children and the provision of the decree which relates to custody is consequently void and must be quashed.

The petition expressly alleged that relator was 'still domiciled' in this state and had absented herself from 'her...