The State ex rel. Dew v. Trimble

• Decision Date: 17 February 1925
• Docket Number: 25267
• Parties: THE STATE ex rel. SAMUEL A. DEW, Judge of Circuit Court, v. FRANCIS H. TRIMBLE et al., Judges of Kansas City Court of Appeals
• Court: Missouri Supreme Court

269 S.W. 617

306 Mo. 657

THE STATE ex rel. SAMUEL A. DEW, Judge of Circuit Court, v. FRANCIS H. TRIMBLE et al., Judges of Kansas City Court of Appeals

No. 25267

Supreme Court of Missouri

February 17, 1925

Rehearing Denied February 17, 1925.

Quashed (in part).

J B. McGilvray, Frank G. Warren and John H. Lucas for relator.

(1) The opinion and judgment of the Kansas City Court of Appeals is contrary to the principles enunciated by this court to the effect that the circuit court, having made an order concerning the disposition of the minor child of parents involved in divorce proceedings, has continuing jurisdiction of the child, excluding another division of the same court acting as a juvenile court, from taking subsequent independent jurisdiction thereof upon petition filed in the same cause by the losing party in the divorce action. In re Morgan, 117 Mo. 249; State ex rel. v. Reynolds, 209 Mo. 161; State ex rel. Matacia v. Buckner, 254 S.W. 179; State ex rel. Shoemaker v. Hall, 257 S.W. 1047. (2) Want of jurisdiction over person or subject-matter is always ground for relief on habeas corpus. Ex parte See, 241 Mo. 293; Ex parte Craig, 130 Mo. 593; Ex parte O'Brien, 127 Mo. 256; Ex parte Bedard, 106 Mo. 627; Ex parte Creasy, 243 Mo. 679; 29 C. J. 30. (3) On the face of the record it is shown that the juvenile court had no jurisdiction over the person of Margaret M. Marty to make the order awarding the custody of the child. (a) Because the complaint on which the order of the juvenile court is founded does not allege that the child is a resident of Jackson County, Missouri, or that it has been neglected in said county. State ex rel. Emory v. Porterfield, 244 S.W. 967. (b) Because the complaint does not set out any statutory grounds of neglect. Ex parte See, 241 Mo. 293; State v. Asher, 216 S.W. 1013; Brana v. Brana, 139 La. 306; State v. Rose, 125 La. 1080.

Hunt C. Moore and Ilus M. Lee for respondents.

(1) The opinion of the Kansas City Court of Appeals follows the plain letter of the statute law of this State; it is not in conflict with any decision of this court, and it is fully supported by parallel cases from other states. Laws 1911, p. 177, et seq.; Secs. 2591 to 2613, R. S. 1919; In re George Hosford, 107 Kan. 115, 11 A. L. R. 142, and notes; State v. McCloskey, 136 La. 739; Brana v. Brana, 139 La. 306; Buffington v. Goldman, 152 La. 647. (2) No case has heretofore been considered by this court in which was involved the question of whether a juvenile court could take jurisdiction of a "neglected child," whose custody has been previously adjudged, as between the parents of such child, in a divorce action, and it follows that the writ of certiorari must be quashed, because in a proceeding of this nature this court is concerned solely with the question of conflict. State ex rel. Ins. Co. v. Allen, 262 S.W. 43; State ex rel. Ins. Co. v. Reynolds, 290 Mo. 362; State ex rel. Packing Co. v. Reynolds, 287 Mo. 697; State ex rel. Snyder v. Trimble, 262 S.W. 697; State ex rel. Bush v. Sturgis, 281 Mo. 598; State ex rel. Assurance Co. v. Allen, 259 S.W. 77; State ex rel. Ins. Co. v. Allen, 295 Mo. 307.

Ragland, J. All concur, except White and Walker, JJ., absent.

OPINION

RAGLAND

Certiorari to the Kansas City Court of Appeals. The opinion sought to be quashed is one that was rendered by that court in a cause lately pending before it, entitled: "State of Missouri at the relation of Laorine A. Marty, Relator, v. Samuel A. Dew, Judge of Division 6 of the Circuit Court of Jackson County, Missouri, Respondent." The opinion follows:

"This is an original proceeding in certiorari to review the record in a habeas corpus case in Division 6 of the Circuit Court of Jackson County, Missouri, over which respondent presides as judge. The habeas corpus proceeding was brought by the mother in behalf of her minor child, Margaret M. Marty. Respondent ordered the child returned to the custody of her mother in accordance with an order of said court made upon the final hearing of a divorce case in which the mother, Olive B. Marty, was plaintiff, and L. A. Marty, relator herein, was defendant. Respondent has filed a return to the writ, containing the record of the proceedings in the habeas corpus case.

"The facts show that the divorce was granted by said court to the plaintiff therein in February, 1920, the decree awarding the custody of the child to the mother, and providing for alimony and maintenance for the child. In the decree the court retained jurisdiction to change the order with reference to the disposition of the child. No application was ever made by anyone in the divorce court to modify or change the decree awarding the custody of the child to its mother, but on May 8, 1923, relator filed a petition in the juvenile court being another division of the same circuit which granted the divorce, but as separate therefrom as one circuit court is from another existing in this State (Cole v. Norton, 251 S.W. 723), charging that the child was an infant under the age of seventeen years, not an inmate of a state or other institution, and was a neglected child within the meaning of the law, in that its mother 'neglects and fails to properly care for said Margaret M. Marty.' The trial in the juvenile court resulted in the rendition of a judgment 'that Margaret Marty is neglected' and 'it is ordered by the court that Margaret Marty be made a ward of the court and committed to her father, L. A. Marty.' The record shows that relator secured possession of the child and was in possession of her at the time the habeas corpus proceedings were instituted.

"The ground upon which the possession of the child was awarded to the mother by respondent, was that the order made in the divorce case gave the court that made it exclusive and continuing jurisdiction over the matter of the custody of the child and as that court had first obtained jurisdiction over the child, the juvenile court had no right to interfere, and as the divorce court had never made any further alteration of its decree relating to the custody of the child, that custody having been awarded to the mother, she was entitled to the child.

"The petition for the writ of habeas corpus merely set up the order of the divorce court awarding the child to the mother and alleged that the father had forcibly taken possession of the child from the mother and that the petitioner was entitled to its possession; that the father was in illegal and unlawful possession of the child and prayed for its return to the custody of the mother. The answer of the respondent therein, the relator herein, set up the proceedings and judgment of the juvenile court in support of his right to retain the custody of the child. No reply was filed by the petitioner therein, but we need not go into the matter as to the effect of the failure to file a reply, as we are of the opinion that the court should not have taken the custody of the child from this petitioner in any event, and it is not necessary for us to decide this case on any technical matter, but we will consider it in the light of the theory of respondent, which is expressed in his brief as follows:

"'It will be seen that the main question involved is: Does the circuit court, having made an order concerning the disposition of a minor child of parents involved in a divorce proceeding, having continuing jurisdiction of the child, preclude the juvenile court from taking independent jurisdiction thereof upon a petition filed in the cause by the losing party in the divorce action?'

"The question as to whether the juvenile court has jurisdiction under the statute creating it, Article VI, Chapter 21, Sections 2591 to 2613, inclusive, Revised Statutes 1919, over a neglected child whose custody has been awarded in a divorce court, which order in express words retains jurisdiction over the child, has not been decided in this State. The juvenile court statute provides, Section 2591, that:

"'For the purpose of this article, the words "neglected child" shall mean any child under the age of seventeen years, who is destitute or homeless, or abandoned, or dependent upon the public for support, or who habitually begs or receives alms, is found living in any house of ill-fame, or with any vicious or disreputable person, or who is suffering from the cruelty or depravity of its parents, or other person in whose care it may be; and any child who while under the age of ten years is found peddling or selling any articles or singing or playing any musical instrument for gain upon the street or giving any public entertainments or accompanies, or is used in any aid of, any person so doing.'

"The statute also provides for jurisdiction of the juvenile court over delinquent children, defining who shall be such. The divorce statute, Sections 1806 and 1812, Revised Statutes 1919, gives the court granting the divorce power to award the custody of the child of the parties and to retain jurisdiction over it as a ward of the court, and gives authority to that court to modify the decree as to the custody of the child from time to time as the circumstances change. [In re Gladys Morgan, 117 Mo. 249, 254, 255.] There are a number of cases in this State holding to the effect that this jurisdiction is continuing and exclusive. [See Meredith v. Krauthoff, 191 Mo.App. 149; In re Kohl, 82 Mo.App. 442; Phipps v. Phipps, 168 Mo.App. 697; In re Gladys Morgan, supra; Barnhart v. Barnhart, 253 S.W. 56.] Many other cases might be cited, most of which were decided before the enactment of the juvenile court statute and some since, but in none of them is the juvenile court law involved or mentioned.

"Juvenile courts are of comparatively recent origin in this country and the decisions of the courts on...