State ex rel. Stone v. Ferriss

• Decision Date: 08 July 1963
• Docket Number: No. 50026,50026
• Citation: 369 S.W.2d 244
• Parties: STATE of Missouri ex rel. Forrest William STONE, Relator, v. Franklin FERRISS, Judge of the Circuit Court of St. Louis County, State of Missouri, Respondent.
• Court: Missouri Supreme Court

Page 244

369 S.W.2d 244

STATE of Missouri ex rel. Forrest William STONE, Relator, v. Franklin FERRISS, Judge of the Circuit Court of St. Louis

County, State of Missouri, Respondent.

No. 50026.

Supreme Court of Missouri, En Banc.

July 8, 1963.

Charles M. Shaw, Clayton, for relator.

Forrest M. Hemker, Greensfelder, Hemker & Wiese, St. Louis, for respondent.

HOLLINGSWORTH, Judge.

This is a proceeding in prohibition originally filed in the St. Louis Court of Appeals. Following rendition of an opinion therein, 364 S.W.2d 49, this court, on application of respondent, ordered the cause transferred to this court en banc for hearing and determination, in accordance with Article V, Sec. 10, Constitution of Missouri, V.A.M.S., and S.Ct. Rule 84.05, V.A.M.R.

The questions presented arise out of an action brought by relator in the Circuit Court of St. Louis County against his wife, Dorothea Carla Stone, wherein relator sought a divorce and custody of their four minor children ¹ and in which defendant, in the first count of her answer, sought a divorce from relator and custody of said children; and in the second count thereof, by alternative cross claim invoking the equitable jurisdiction of the court, prayed that, in the event the relief was denied relator as sought in his petition and defendant as sought in her cross-bill, the court award her custody of the children and judgment for their support.

Trial of these issues by respondent as judge of said circuit court resulted in a decree entered August 1, 1962, dismissing with prejudice both relator's petition and defendant's cross-bill. On defendant's cross claim, respondent found that relator was unfit to have permanent custody of said children; that defendant was a devoted, conscientious and capable mother; that relator walked out of the home with the children on August 21, 1961, and went to live with them in his mother's home; that it would be in the children's best interest to be in the care and custody of their mother, subject to relator's right of reasonable visitation and reasonable temporary custody. The decree accordingly awarded defendant custody of the children, subject to the right of relator to have temporary custody at the times in said decree expressly set forth; and awarded defendant the sum of $500 per month for their support.

Relator appealed from the decree in its entirety and filed an appeal bond in the amount of $5,000. Defendant appealed from that part of the decree dismissing her cross-bill. After these appeals were taken, defendant filed motion for attorney's fees and suit money, for support pending the appeals and for temporary custody and support of the children during the pendency of the appeals and until the St. Louis Court of Appeals, by its mandate, directed respondent as to its final decision in the case. Relator then filed his 'Petition and Affidavit for Disqualification of Judge', which respondent denied.

Relator's petition for prohibition was then filed in the St. Louis Court of Appeals. The petition alleged that defendant's motion for temporary custody pending appeal 'is a new and separate cause of action and by said Motion Defendant, Dorothea Carla Stone, in Cause No. 242461 is seeking to obtain custody of the minor children, when in fact the custody is now with Forrest William Stone, Plaintiff herein, and a supersedeas bond has been duly filed and approved.' Respondent's return admitted the facts well pleaded in relator's petition. In due course, following submission, the court of appeals, in an opinion rendered, held that respondent, as judge of the Circuit Court of St. Louis County, was without jurisdiction after an appeal with bond to entertain an after-trial motion for temporary custody of children during the pendency of the appeal and made its provisional rule in prohibition absolute. Respondent filed motion for rehearing and, in the alternative, sought transfer of the cause to this court, which motion was denied. Respondent petitioned this court for transfer, which, as stated, was sustained.

The verified after-trial motion for custody of the children, which is embraced in paragraph 5 of defendant's motion for other orders pending appeal, reads as follows:

'On the 21st day of August, 1961 the plaintiff took the four children of the parties away from the home of the parties and to the home of plaintiff's mother at Imperial, Missouri, where they have ever since remained. This action was filed on August 22, 1961. Thereafter, and until April 18, 1962 plaintiff refused to permit defendant to have custody of the children and only allowed defendant to visit the children for short periods of time on the premises at the home of plaintiff's mother. At no time was defendant allowed to be with the children without plaintiff or plaintiff's mother being in close proximity. By order entered herein on April 18, 1962 plaintiff was ordered to allow defendant to see the children for a period of two hours uninterfered with beginning at 10:30 A. M. on Sundays on the premises at the home of plaintiff's mother at Imperial, Missouri. After the decree entered herein on August 1, 1962, defendant requested the plaintiff to deliver said children to the defendant in accordance with said decree. Plaintiff failed and refused to do so, and still fails and refuses to do so. During the pendency of this action, and after the trial thereof, and to this date plaintiff maintains an attitude of hostility toward defendant, and has at all times since August 21, 1961 stated to defendant that he will never permit defendant to have custody of the children, and will fight defendant through the Courts and finally leave the country with the children if necessary to keep them away from defendant. Since August 21, 1961, it is impossible for defendant to maintain any semblance of a normal relationship with her children, and to give to them the company, companionship, love, affection, care and nurture essential to their growth, development, emotional stability and general welfare. By reason of the long separation of defendant from all meaningful contact with her children from August 21, 1961 to this date, the normal affection of said children for their mother is, and will in the future become dormant, and the children will be further alienated from their mother. At the home of plaintiff's mother the care of the children is entrusted to plaintiff and to elderly persons who are incapable of giving the children the maternal love and care essential to the nurture of children of tender years. The continued separation of the children from their mother during the pendency of this action on appeal will involve an additional critical period in the formative years of the lives of the children of from 9 months to 12 months, during which the children will be deprived of the care and love and affection of their mother, all to their irreparable injury and damage. The best interest of the children demands and requires that said children be temporarily placed in the care and custody of the defendant, and defendant awarded a reasonable sum for their support and maintenance during the pendency of this action on appeal so that said children will be enabled to re-establish a normal motherchild relationship with their mother, the defendant.'

The question for determination on the merits of the motion is whether, when relator appealed from the decree entered in the divorce case and filed supersedeas bond, in the amount and with sureties as required by the court and as prescribed by Sec. 512.080, ² the chancellor was vested with jurisdiction to hear and determine an after-trial motion for temporary custody of the children pending the appeal, the statute notwithstanding.

The opinion of the St. Louis Court of Appeals held: 'If the trial court had the power to order the appealing plaintiff to turn the children over to the defendant, it would be executing an order from which an appeal had been taken. In State ex rel. Gray et al. v. Hennings, 194 Mo.App. 545, 185 S.W. 1153, this court ruled that under such circumstances, the power of the trial court was stayed and it was powerless to proceed with the enforcement of the order appealed from during the pendency of the appeal. We restated this rule in Green v. Perr, Mo.App., 238 S.W.2d 922. The Missouri Supreme Court made a like holding in State ex rel. Burtrum et al. v. Smith, 357 Mo. 134, 206 S.W.2d 558, and citing with approval State ex rel. Gray et al. v. Hennings, supra.'

State ex rel. Gray v. Hennings, supra, so holds. Relator insists that to hold otherwise would allow enforcement of a possibly erroneous decision and, in effect, destroy an aggrieved appellant's right of appeal; and that the statute declares the public policy of the state cannot and should not be overruled. Respondent says that: 'If the Gray case is controlling, it is a fact that there is a period between the entry of the decree and the final determination of the case on the merits by the Appellate Court, during which one or the other of the spouses does not have and cannot obtain a Court order with respect to custody or visitation, however much the welfare of the children calls for such action.' Respondent also further contends that the decision of this court in the Burtrum case does not approve the holding in the Gray case but, to the contrary, strongly suggests that it should not be followed, especially under pleadings and facts such as are found in the instant case; and that, in any event, the Gray case should no longer be followed.

In the Burtrum case, State ex rel. Burtrum v. Smith, Judge, 357 Mo. 134, 206 S.W.2d 558, Myrtle Burtrum obtained a divorce from Joe Burtrum in the Circuit Court of Jackson County and was awarded custody of their minor child, Ronald, during certain periods of each year. She appealed only from the portion of the decree limiting her custody of the child to certain portions of the year and gave a supersedeas bond. Pending the appeal, Joe, by ...