Thompson v. Arnold
| Decision Date | 02 May 1921 |
| Citation | 230 S.W. 322,208 Mo.App. 102 |
| Parties | GEORGE A. THOMPSON and JENNIE THOMPSON, Respondents, v. WALTER ARNOLD and LOREN P. ARNOLD, Appellants |
| Court | Kansas Court of Appeals |
Appeal from Circuit Court of Atchison County.--Hon. John M. Dawson Judge.
REVERSED AND REMANDED (with directions).
Judgment reversed and cause remanded.
W. R Littell and Craven & Bates for respondent.
Edward A. Setzler for appellants.
This is an action for permission to adopt a minor child instituted in the juvenile division of the circuit court of Atchison county, Missouri.
Walter Arnold and Nellie Thompson were married on July 20, 1907, and lived together as husband and wife until the year 1914. They were the parents of two children, the elder of whom is Loren P. Arnold, now about twelve years of age. The other child died in 1914, while the parents were residing in Kansas City. The father, mother and boy Loren, accompanied the remains to Tarkio in Atchison county for burial. The husband returned to Kansas City but the wife and son remained for some weeks in Tarkio, at the home of the wife's parents, plaintiffs herein. She then returned to Kansas City where the husband was seriously ill at the home of his parents, remained there a short time, sold the family household goods and, with her son Loren, returned to the home of her parents at Tarkio, where she continued to reside. In 1916 she filed a petition for divorce in Atchison County, on statutory grounds, the defendant filed no answer and a decree of divorce was granted to plaintiff by default. The decree allotted the care and custody of the child, Loren P. to the wife.
The husband remarried in 1917. Nellie Thompson Arnold died on November 14, 1918, at the home of her parents in Tarkio. After the death of his mother Loren remained with plaintiffs, at their request, in order to complete his school term, when, in June, 1919, his father met him in St. Joseph and brought him to Kansas City, where he remained with his father and his paternal grandparents and attended school in the fall, until December 22, 1919, when, without the knowledge or consent of his father, he was taken away from the school by his two aunts, daughters of plaintiffs herein, removed to the home of plaintiffs and kept there, against the will of his father.
On April 22, 1919, plaintiffs herein secured a decree in the juvenile division of the Atchison county circuit court, adopting said minor child. That decree, however, was by the said court later declared null and void and of no effect, for want of service on the father, Walter Arnold, and on January 26, 1920, a new petition for a decree of adoption was filed in the same court. Service was secured on defendant, Walter Arnold, through the sheriff of Jackson county. Both parties were present and represented by attorneys; the cause was heard by the court and a decree entered granting the prayer of adoption of plaintiffs. The defendant father appealed.
The petition alleges, among other things, the relationship of the parties as above stated; that defendant Loren P. Arnold is eleven years of age and without any legal or natural guardian for his person and that he has no estate, real or personal. The petition further states that a decree of divorce was secured by Nellie Arnold, the mother of Loren P. Arnold, from Walter Arnold, upon the grounds of desertion and non-support, and that the care and custody of said minor child was awarded to the mother; recites the facts of the death of the mother Nellie Arnold, and states that the said father has not contributed to the support of, nor visited, nor evidenced any interest in the welfare of said minor child since the death of the mother, November 14, 1918. The petition further alleges that plaintiffs are of good moral character and have ample property out of which to clothe and educate said minor child, and that they will properly so clothe and educate him and attend to his moral and intellectual training.
The answer is first a general denial, and a special plea that said child was in defendant's care and custody and attending school in Kansas City, Missouri, from June to December 22, 1919, at which latter date plaintiffs took said child to Tarkio, Mo., without the knowledge or consent of the defendant father. The answer further states that defendant Walter Arnold has a good position and is able to provide for his wife and children, including defendant Loren P., and that he is desirous of having the care and custody of his said son. The answer further charges that the default decree of April 22, 1919, by which the care and custody of said minor child was awarded to plaintiffs, was ex parte and without notice or service of any kind on defendant Walter Arnold.
The reply is a general denial. Upon the issues thus made the case went to trial and resulted in a judgment and decree in favor of plaintiffs.
The decree states in part
The petition is based upon section 1672, p. 193, Session Acts of 1917 (...
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