Stone v. Stone, 32085

• Citation: 393 S.W.2d 201
• Decision Date: 20 July 1965
• Docket Number: No. 32085,32085
• Parties: Forrest William STONE, Plaintiff-Respondent, v. Dorothea Carla STONE, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 201

393 S.W.2d 201

Forrest William STONE, Plaintiff-Respondent, v. Dorothea Carla STONE, Defendant-Appellant.

No. 32085.

St. Louis Court of Appeals, Missouri.

July 20, 1965.

Motion for Rehearing or to Transfer to Supreme Court Denied

Aug. 24, 1965.

Application to Transfer Denied Sept. 13, 1965.

Greensfelder, Hemker & Wiese, Donald S. McDonald, St. Louis, for defendant-appellant.

Shaw, Hanks & Bornschein, Charles M. Shaw, Clayton, Arthur B. Shepley, Jr., St. Louis, for plaintiff-respondent.

BRADY, Commissioner.

This appeal is from a judgment of the juvenile division of St. Louis County circuit court modifying an award of custody entered by the domestic relations division thereof. The factual situation leading to such an incongruous result need be only briefly stated.

A review of preliminary proceedings will be helpful to place in proper perspective the jurisdictional issue upon which we decide this case. The plaintiff in the instant case filed suit seeking a divorce from the defendant and custody of the four minor children born of their marriage. The defendant filed an answer and a cross-bill wherein she sought a divorce and custody of the children. Her petition also contained a second count sounding in equity whereby she prayed that in the event custody was denied either party in the divorce action, then the court should award her custody together with a reasonable allowance for their support and maintenance. The trial court acted in accordance with the second count of the defendant's crossbill. Pending appeal to this court a controversy arose due to a post-trial order regarding custody. That matter was resolved by State ex rel. Stone v. Ferriss, Mo., 369 S.W.2d 244. In accordance with that opinion the trial court entered a new order granting plaintiff custody pending cross appeals to this court. By opinion of April 29, as modified May 22, 1964, this court affirmed the trial court's decree granting general custody to the defendant. See Stone v. Stone, Mo.App., 378 S.W.2d 824. Therein this court directed that the domestic relations division retain exclusive jurisdiction of these minors during their minority.

We pass now to those facts bearing upon our view of the instant appeal. On June 29, 1964, the parties appeared in the circuit court in response to the judge's order to show cause why Mr. Stone should not be held in contempt for willful refusal to obey the trial court's orders regarding custody. Testimony was heard and the court ordered Mr. Stone to comply with its orders as to delivery of the children to the defendant and '* * * to pay defendant of compensatory fine of $300.00 * * *' The following paragraph appears in that same order: 'Court certifies the cause to the Juvenile Division for determination of any changes in the existing orders re custody and support of minor children. * * *' The balance of the order dealt with the disposition of the children for the summer months and is not pertinent to our inquiry. The same is true of the 'compensatory fine.' We will not refer to that matter again.

Plaintiff's motion to modify was not filed until August 31, 1964, slightly over one month later. It was filed in the juvenile division of the circuit court. That motion sought the modification of the grant of custody to the defendant as affirmed by this court. That was the only relief sought by the plaintiff who specifically alleged '* * * a change of circumstances sufficient to require a modification of the Court's order * * * pertaining to the custody of the minor children.' The prayer was that the court modify the previous decree '* * * and order the minir children to be placed in the major custody and control of the Plaintiff * * *' with visitation rights to the defendant. The defendant filed her cross-motion to modify seeking to have the plaintiff's visitation privileges revoked.

Trial on these motions took place in the juvenile court of St. Louis County pursuant to the transfer provisions contained in the order of July 29, 1964. At the opening of such proceedings the trial court stated, '* * * And as I understand, this matter has been transferred from the Domestic Relations Division to the Juvenile Court * * * and the scope of responsibility for this Court would appear to come in by virtue of Section 211, that is Chapter 211 which is the Juvenile Code and the provisions therein relevant to the welfare of the children in other proceedings. * * *'

The judgment of the juvenile court contains the following pertinent provisions: 'On the record and evidence adduced, the Court finds: that the Juvenile Division of the Circuit Court of St. Louis County has jurisdiction in this proceedings by virtue of the transfer of the cause to this division from the Domestic Relations Division of this court of certain proceedings having heretofore been had with respect to an action for divorce instituted by the plaintiff against the defendant; that the order of transfer and certification of the cause to the juvenile division was for determination of any changes in the existing orders re custody and support of minor children; the jurisdiction of the court having heretofore been invoked by virtue of the residence of the parties; and under Sec. 211.031 [RSMo.1959, V.A.M.S.], the court further finds that the children are without proper care, custody or support because of the conflict existing between the mother and the father stemming from their failure to reach an amicable relationship and to continue as husband and wife in a family setting; * * * It is ordered, adjudged and decreed that the minor children, Pamela Stone, Forrest Stone, Jeffrey Stone and Phillip Stone, be placed in the custody of their paternal grandmother, Marie Stone, under supervision of the St. Louis County Child Welfare Services to the exclusion of visitation or custody rights of either parent, Forrest William Stone and Dorothea Carla Stone; * * * that the order heretofore entered for allowance for the maintenance of said minor children with the defendant mother, Dorothea Carla Stone, in the sum of $500 a month is set aside but the plaintiff, Forrest William Stone, is ordered to pay for the maintenance of the defendant, Dorothea Carla Stone, the sum of $65 a week, all subject to further order of the court.' The plaintiff was also ordered to pay certain sums to his mother for the maintenance of the children, the defendant's attorneys, and the costs.

We are therefore confronted with an amazing and dismaying situation; one where the domestic relations division of the St. Louis County circuit court has certified to the juvenile division of that same court a cause involving custodial rights of minor children in violation of that portion of this court's opinion directing the domestic relations division to retain continuing and exclusive jurisdiction of the children; where the certification was ordered at a time when there was no motion to modify nor any other pleading then pending before the domestic relations division; where the juvenile division of that court assumed jurisdiction, treated the matter as a juvenile case, found the children without 'proper care, custody or support,' and placed them with a person not a party to the modification proceeding and...