W--- K--- M---, Matter of, KCD

• Decision Date: 03 May 1976
• Docket Number: No. KCD,KCD
• Citation: 537 S.W.2d 183
• Parties: In the Matter of W_ _ K_ _ M_ _, a minor under the age of 14 years. L_ _ W_ _ H_ _, Petitioner, v. W_ _ E_ _ M_ _, Respondent. 28237.
• Court: Missouri Court of Appeals

Page 183

537 S.W.2d 183

In the Matter of W_ _ K_ _ M_ _, a minor under the age

of 14 years.

L_ _ W_ _ H_ _, Petitioner, v. W_ _ E_ _ M_ _, Respondent.

No. KCD 28237.

Missouri Court of Appeals, Kansas City District.

May 3, 1976.

James S. Formby, Kansas City, for petitioner.

Thomas E. Allen, Liberty (Hale, Kincaid, Waters & Allen, Liberty, of counsel), for respondent.

Before PRITCHARD, C.J., and SHANGLER, DIXON, SWOFFORD, WASSERSTROM, SOMERVILLE and TURNAGE, JJ.

SWOFFORD, Judge.

This proceeding was instituted in this court on September 4, 1975, by the filing of a petition for habeas corpus by the natural mother of W_ _ K_ _ M_ _, a male, then twelve (12) years of age, who she alleged was presently in the physical custody of his natural father and who was being illegally restrained from returning to the mother under the terms of certain contractual obligations between the mother and father; that the father and mother were not (and had never been) married to each other; and, that the father for numerous stated reasons was unfit to have custody of the child. The parents and the child all are residents of Clay County, Missouri.

On September 5, 1975, this court, deeming the allegations of the mother's petition sufficient for further inquiry, issued its writ and ordered the father to produce the body of the child before this court on September 8, 1975. On that day, the father did appear, produced the child, and filed his Return to the Writ of Habeas Corpus and his Motion to Dismiss, in which he admitted that the child was in his physical custody; asserted that the right of custody of the child had never been the subject of any decree or order of any other court; that the contract, with the mother, placing the custody in her, was illegal, void and unenforceable; that he was a fit and proper person to have permanent custody of the child and was its natural father and thus had legal rights to custody equal to its natural mother; that the child wished to remain in the father's custody; that the child's interests and welfare were best served by an award of permanent custody to the father; that the mother, for numerous factual reasons alleged, was unfit to have custody of the child; and, prayed this court to award him custody of his son.

On that same date, this court, sitting en banc, heard from counsel, viewed the child and its natural parents, and determined that there were obviously factual issues of complex character. Accordingly, this court entered its order on September 8, 1975, awarding temporary custody of the child to the mother-petitioner, and appointing the Honorable R. Kenneth Elliott, Judge of the Circuit Court and Juvenile Judge of Clay County, Missouri, as Special Master under Rule 68.03, Rules of Civil Procedure, which order states, in part:

'ORDER

Said W_ _ K_ _ M_ _, having been this day produced to this court in obedience to the writ of habeas corpus issued herein, and return having been filed, it is

ORDERED, that the temporary custody of W_ _ K_ _ M_ _ be remanded to petitioner, L_ _ W_ _ H_ _, pending the determination of the legal issues herein, as hereinafter ordered and directed, and that petitioner shall not remove said W_ _ K_ _ M_ _ from the State of Missouri, pending said determination, and

IT IS FURTHER ORDERED, that the Honorable R. Kenneth Elliott, Judge of the Juvenile Court of Clay County, Missouri, at Liberty, be and he is hereby appointed as special master herein pursuant to Rule 68.03, with directions to hold an evidentiary hearing on the issues herein and to make findings of fact and conclusions of law and report the same to this court, together with costs, including the preparation of a transcript of the proceedings.

Dated this 8th day of September, 1975.

/S/ Jack P. Pritchard

Jack P. Pritchard, Chief Judge'

On September 8, 1975, this court also appointed the Honorable Jerome E. Brant, a member of the Clay County Bar, as Guardian ad Litem for the minor, W_ _ K_ _ M_ _.

On September 10, 1975, Special Master Elliott set an evidentiary hearing for September 17, 1975. On September 15, 1975, Jerome E. Brant filed his formal entry of appearance as Guardian ad Litem and requested that the Master require strict proof from the mother-petitioner. On that same day, September 15, 1975, the mother-petitioner filed her Reply to the father's Return, in which she admitted all of the basic facts above mentioned, but again asserted in numerous areas the father's unfitness to have permanent custody of the boy, and with equal vigor asserts her fitness and ability to have permanent custody. The issues thus drawn ultimately resolve to the basic fact as to what will best serve the interests of the child and the determination of this required a searching and careful exploration into and meticulous sifting of a multitude of evidence. Accordingly, Special Master, Judge Elliott, conducted an evidentiary hearing on September 17, 1975, in a most thorough and able manner, and caused to be made a complete transcript of the evidence, which, together with his 'Report of Special Master' and various enhibits, were filed with this court on October 14, 1975. In his report, which will be set forth in more detail herein, the Special Master found that the care and custody of W_ _ K_ _ M_ _ should be placed in the natural father, with reasonable visitation rights to the mother. On December 18, 1975, the Guardian ad Litem filed his report with this court, in which he made the same recommendations as to custody. The case was augued before this court on January 26, 1976 and taken under submission.

Some preliminary statements as to the jurisdictional and procedural elements of this matter are appropriate. This court has absolute original jurisdiction in this habeas corpus proceeding, Article 5, Section 4(1) Constitution of Missouri; Ex Parte Hagan, 295 Mo. 435, 245 S.W. 336, 337(1) (banc 1922); Reiter v. Camp, 518 S.W.2d 82, 83--84(1) (Mo.App.1974). This jurisdiction carries with it the concomitant power and obligation to determine the respective rights as between the natural parents of W_ _ K_ _ M_ _ under the issues and evidence now reviewed. Rule 91.60, Rules of Civil Procedure; Ex Parte Lofts, 222 S.W.2d 101, 104--106(1, 2) (Mo.App.1949). However, as in all such proceedings, the welfare of the child is and must be the prime and overriding consideration and the rights and claims of the parents are and must be of secondary importance. E.W. v. K.D.M., et al., 490 S.W.2d 64, 67(5, 6) (Mo. banc 1973); Stockton v. Guthary, 415 S.W.2d 308, 311(1, 4) (Mo.App.1967). Neither is this court bound by an extrajudicial agreement between the parents, such as the 'Property Settlement Agreement' here involved, purporting to give absolute permanent custody of W_ _ K_ _ M_ _ to the natural mother. Ex Parte McCarter, 434 S.W.2d 14 (Mo.App.1968) . Custody of infants cannot be bartered and traded as goods in the marketplace, so as to foreclose a judicial determination as to the present welfare and best interests of the child.

While little procedural or practical problems would be encountered in habeas corpus proceedings of this nature brought at the trial court level, such difficulties are, of course, immediately apparent at the appellate court level. Courts, such as this, before September 1, 1972, had no physical, financial or practical means to accomplish the necessary development of the facts and evidence required to determine the area of the best welfare of the minor nor the respective rights of the parents in a case such as the one at bar.

However, the Supreme Court of Missouri wisely corrected this schism and filled this gap by adopting Rule 68.03, Rules of Civil Procedure, on February 1, 1972, to be effective September 1, 1972, providing for 'Masters in Appellate Courts'. It is under Rule 68.03 that the court and Special Master Elliott proceeded in this case. By this means, a full evidentiary hearing was had, the parties were given full opportunity to be heard; to be represented by counsel therein; to present witnesses and offer documentary evidence; and, to cross-examine adverse parties and witnesses. All of the relevant issues of fact were thus fully presented and preserved by a full transcript filed here with the findings of fact of the Special Master.

So far as counsels' briefs and independent research disclose this is the first case in an appellate court of this state involving the procedures authorized and delineated by Rule 68.03. At the very threshold of decision the effect of and the weight to be given to the Special Master's findings and recommendations must be determined.

Rule 68.03 was, in general, modeled after Rule 53 of the Federal Rules of Civil Procedure providing for the appointment of masters in the United States District Courts, which rule, so far as the scope of review is concerned, has been held by federal decisional law to also apply to federal appellate courts. Michelsen v. Penney, 135 F.2d 409, 414(1) (C.C.A.2--1943); National Labor Relations Board v. Remington Rand, Inc., 130 F.2d 919, 925(1) (C.C.A.2--1942). Rule 53(e)(2) provides that in non-jury matters, the Special Master's findings of fact shall be accepted 'unless clearly erroneous' by the district (or appellate) courts. As a result, an impressive body of federal decisional law has developed wherein the courts, while properly...