E. W. v. K. D. M.

• Decision Date: 28 March 1972
• Docket Number: 34484,Nos. 34181,s. 34181
• Citation: 479 S.W.2d 167
• Parties: E.W., Petitioner, Plaintiff-Appellant, v. K.D.M., W. and C.W., Defendants-Respondents. In re T.W. and L.W., Minors. E.W., Petitioner, v. K.D.M., W. and C.W., Respondents. . Louis District
• Court: Missouri Court of Appeals

Page 167

479 S.W.2d 167

E.W., Petitioner, Plaintiff-Appellant, v. K.D.M., W. and C.W., Defendants-Respondents.

In re T.W. and L.W., Minors.

E.W., Petitioner, v. K.D.M., W. and C.W., Respondents.

Nos. 34181, 34484.

Missouri Court of Appeals, St. Louis District.

March 28, 1972.

Stephen E. Gottlieb, Legal Aid Society, St. Louis, for petitioner-appellant.

Vincent E. Hartigan, Jr., St. Louis, for respondents.

WEIER, Judge.

Case No. 34,181 was an appeal from a judgment of the St. Louis County Circuit Court, remanding two children, aged two and three years, to their putative father. This judgment followed the filing of a petition for writ of habeas corpus by the unwed mother, a return alleging she was an unfit mother, and an evidentiary hearing on the issue of parental fitness. We thereupon determined that we did not have jurisdiction to entertain the appeal since appeal does not lie in habeas corpus; and by opinion we dismissed the appeal. Before our mandate went down in Case No. 34,181, the same petitioner in that case had filed a petition in this Court, in Case No. 34,484, for writ of habeas corpus against the same respondents and, upon the issuance of the writ, respondents filed their return. Both petition and return in the habeas corpus proceeding in this court are almost identical to those filed in the case appealed from the circuit court. In response to petitioner's assertion that the putative father took the children and that all respondents are holding petitioner's children without any legal right, the respondents alleged that petitioner was the mother of seven other illegitimate children; that she was neglectful of the physical and mental health and welfare of the children; that she mistreated them; that she left them unattended and improperly cared for by unqualified persons; and that she would not properly feed and clothe them. In addition, in the return filed here, the respondents alleged that by order of the circuit court in the habeas corpus proceeding, custody of the children had been remanded to the putative father. Both cases have been consolidated by us and, by agreement of counsel, further argument on the merits has been waived and the cases have been submitted for our consideration.

We are again confronted with the issue of our jurisdiction on appeal. This has not been raised by counsel, but to it we must address ourselves, as before, sua sponte. In re In Interest of T.G., 455 S.W.2d 3, 5(1). To put the issue another way, shall we consider the appeal from the order in the habeas corpus proceeding of the circuit court, or shall we, as was previously done, dismiss the appeal and then address ourselves to the habeas corpus proceeding raising the same issues brought in this court? On the one hand, we have a long line of decisions holding that no appeal lies from habeas corpus. Howe v. State, 9 Mo. 690 (1846) to Jones v. State, Mo., 471 S.W.2d 166, 168(2). See also In re Hutchinson v. Wesley, Mo.App., 455 S.W.2d 21, 23 (1970). On the other hand, an en banc opinion of the Missouri Supreme Court confers unimpeached authority upon a line of decisions approving the proposition that where the welfare of a child is involved in a habeas corpus proceeding, and the fitness of those seeking custody is raised in the pleadings, 'the nature of the inquiry makes the proceeding one of an equitable nature, * * *.' In re Shepler, Mo., 372 S.W.2d 87, 91 (quoting Ex parte De Castro, 238 Mo.App. 1011, 190 S.W.2d 949, 951). Obviously, if the proceeding is converted to one in equity, then it can no longer be considered habeas corpus and appeal should lie. Examination of the two remedies supports this conclusion.

The writ of habeas corpus ad subjiciendum is the remedy devised to test the legality of personal restraint. Rice v. Gray, 225 Mo.App. 890, 34 S.W.2d 567, 571(6). It is a high prerogative writ (LaGore v. Ramsey, Mo., 126 S.W.2d 1153, 1154) designed for the purpose of effecting the speedy release of persons who are illegally deprived of their liberty or, as in certain instances in the case of minors, illegally detained from the control of those who are entitled to the custody of them. In re Wakefield, 365 Mo. 415, 283 S.W.2d 467, 471(5, 6). As commented on in State ex rel. Dubinsky v. Weinstein, Mo., 413 S.W.2d 178, 180, it provides but one of several forums in which child custody may be adjudicated. Aside from divorce, guardianship, juvenile, or habeas corpus proceedings mentioned therein, our courts also recognize an independent equitable proceeding brought for the purpose of determining child custody. Thus, in State ex rel. Stone v. Ferriss, Mo., 369 S.W.2d 244, pending an appeal in a divorce action where both petition and cross-bill had been dismissed with prejudice, the court determined that temporary custody of children could be placed by an ad interim order where a separate count of the cross-bill sought custody based upon their welfare, irrespective of the outcome of the divorce action. '(W)hen minor children are properly before any court for any purpose and their welfare is involved, they become wards of that court with respect to the issues of the case and that court has inherent jurisdiction to adjudicate the custody of the children as it deems will best preserve and protect their welfare. Such is the public policy of the state.' l.c. 249. So also State ex rel. Warmuth v. Campbell, Mo.App., 431 S.W.2d 683, 686(6), where the trial court was allowed to proceed with an adjudication as to child custody on a separate count in the petition after a count for divorce was properly dismissed.

We therefore determine that in habeas corpus proceedings in circuit court involving the custody of minor children, where it appears by the return of respondent or by other pleading that the fitness of any of those having custody or seeking custody is put in issue, the habeas corpus proceeding then becomes an equitable proceeding. In re Shepler, Mo., supra, 372 S.W.2d 87, 91; In re Duncan, Mo., 365 S.W.2d 567, 4 A.L.R.3d 1270; Ex parte De Castro, supra, 238 Mo.App. 1011, 190 S.W.2d 949, 951; Ex parte Badger, 286 Mo. 139, 226 S.W. 936, 14 A.L.R. 286. Being equitable in nature, it has all of the characteristics of an equitable action and is subject to the rules of procedure applicable to equitable actions. In addition, a final judgment or order therein is appealable as in any other case in equity.

We are further impelled to this conclusion after a consideration of the two proceedings before us. The circuit court arrived at its judgment in the case before it after hearings held on three different days, requiring not only the attendance of the parties, but also a pediatrician, social workers and other witnesses. Untold hours spent by the court, court attendants and counsel in the framing of the issues under the pleadings, trial preparation and trial are then incorporated in a transcript containing 306 pages. Upon our denial of appeal, the same inquiry in Cause No. 34,484 would again be instituted in this court, with a duplication of all the effort and time which went into the first proceeding. As an appellate court, we are not equipped to conduct a trial of factual issues. We would therefore have to appoint a commissioner to take the testimony and report to us (In re Richardet, Mo.App., 280 S.W.2d 466) or refer the case back to the juvenile division of the circuit court, whence it came, in accordance with Section 211.051, RSMo 1969, V.A.M.S. (Maupin v. Neels, Mo.App., 451 S.W.2d 381), there to follow the same laborious route. This would favor form over substance and would make of legal procedure a mockery of a salient goal, the efficient and effective disposition of litigation.

Accepting the appeal in Case No. 34,181, we now turn to petitioner's contention in that appeal. It would appear that the only substantial contention is the court erred in failing to award custody of the two children to petitioner because the evidence proved her to be a conscientious mother, with no serious faults, whereas respondents, the putative father, his mother and stepfather, show disrespect for authority and lack of character 'by fighting, drinking and general belligerence.' Not expecting the matter to be taken up on appeal and not having been thereto requested, the court did not prepare findings of fact or conclusions of law. From our review of the evidence, the court could have found and inferred therefrom that allowing the children to remain in the custody of the father was for their best interest. As can hereafter be seen, this habeas corpus case assumes all the characteristics of an equitable proceeding to determine custody. The original purpose of the writ to determine legality of custody ceases and the thrust of the inquiry is to determine that which is best for the welfare of the children.

E.W., the mother of the two children here involved, has never been married. Including these two, a boy and a girl, she is the mother of nine children, all of whom did live with her. Her oldest child was born when petitioner was thirteen years old. At the time of hearing she was twenty-four years of age. Although she is separated from D.K.M., the putative father, and, according to her, has nothing to do with other men, she goes to a family planning clinic where she obtains birth control pills. She and the children live in a four-room flat or apartment on the second floor. Access is gained at the back of the building through an alley. Seven of the children sleep in one bedroom. At the time of the hearing, she heated her apartment with the kitchen stove oven. The lady downstairs, who also has nine children, babysits two days a week for petitioner, who is employed part of the time. Petitioner receives aid for dependent children, $46.00 for the first and $25.00 for each additional child. She receives no aid for the two who are the subject of this litigation because their father supports them. She has been a constant beneficiary of the welfare...