Carter v. Arnett

794 S.W.2d 321, 1990 Mo. App. LEXIS 1251
CourtMissouri Court of Appeals
DecidedAugust 16, 1990
DocketNo. 16131
StatusPublished
Cited by2 cases

This text of 794 S.W.2d 321 (Carter v. Arnett) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carter v. Arnett, 794 S.W.2d 321, 1990 Mo. App. LEXIS 1251 (Mo. Ct. App. 1990).

Opinion

MAUS, Judge.

The marriage of Cindy Lou Carter and Jerry Dale Carter was dissolved January 10, 1986. The court distributed their property and placed custody of the parties’ three minor children with Mrs. Barbara Arnett, the maternal grandmother. Each parent was ordered to pay child support to the grandmother. The father’s Motion to Modify was filed June 24,1987. The mother died before that motion was heard on October 25, 1988. The court modified the decree of custody by awarding the legal and actual custody of the three minor chil[322]*322dren to the father, Jerry Dale Carter, granting the grandmother specified periods of temporary custody and visitation. The father’s obligation to pay child support was terminated. A supersedeas bond was posted. The grandmother appeals.

This court must first address the grandmother’s contention that upon the death of the mother the dissolution action abated and the trial court had no jurisdiction to modify the custody decree. She cites cases and relies upon the following language:

“Prior to the dissolution act, a Missouri court derived its jurisdiction over a divorce proceeding from the divorce action itself. Schumacher v. Schumacher, 223 S.W.2d 841, 845 (Mo.App.1949). The death of either spouse abates that jurisdiction. Thereafter, the court no longer maintains the authority to modify a divorce decree. Id. See also, In re B.R.F., 669 S.W.2d 240, 244 (Mo.App.1984); Leventhal v. Leventhal, 629 S.W.2d 505, 507 (Mo.App.1981). When, in the case at bar, the mother died, the continuing jurisdiction of the divorce court over custody abated. Tomlinson v. O’Briant, 634 S.W.2d 546, 548 (Mo.App.1982). The present Dissolution Act has not changed those principles. In re B.R.F., supra at 244.” In re Marriage of Tuttle, 764 S.W.2d 99, 100 (Mo.App.1988).

At first blush, that language lends credence to the grandmother’s contention.

In general, an action which is personal abates upon the death of a party. 1 Am. Jur.2d, Abatement, Survival, and Revival, § 49. Initially, a decree dissolving a marriage is premised upon the resolution of the issue of the marital status of the two individuals. That issue is personal to those individuals. When an action is pending upon the issue of marital status, it is appropriate to hold that such an action abates upon the death of either husband or wife. State ex rel. Dubinsky v. Weinstein, 413 S.W.2d 178 (Mo. banc 1967). However, an action for the dissolution of marriage may involve not only the issue of marital status, but also the issue of the distribution of property and the issue of the custody of children. When the issue of marital status has been resolved by a decree dissolving a marriage, the issue of the distribution of property is not personal. On that basis, the death of a party after a decree of dissolution has become final does not cause an action pending on the issue of the distribution of property to abate. Fischer v. Seibel, 733 S.W.2d 469 (Mo.App.1987).1

The issue of the custody of children between a husband and wife is personal. As stated, if either dies before the entry of a decree of dissolution, the action, including the issue of custody, abates.2 If either dies after a decree of dissolution, but before an order of custody, the action abates as to that issue. However, the entry of an order of custody does not terminate an action for dissolution. In effect, it remains pending for a possible modification of the decree of custody. In re Wakefield, 365 Mo. 415, 283 S.W.2d 467 (banc 1955).3 See also Schumacher v. Schumacher, 223 S.W.2d 841 (Mo.App.1949). If a father and mother are the only parties to a decree of custody, upon the death of either, the action abates.

[323]*323“An order awarding the custody ... is a final order entitled to the force and effect of a final judgment, unless and until modified by the court making the decree.... The effect of such order may, of course, cease upon the death of one of the parties to the divorce action, for such action thereupon abates.” In re Wakefield, supra, 365 Mo. at 422, 283 S.W.2d at 471.

Also see In re Marriage of Tuttle, supra; In re B.R.F., 669 S.W.2d 240 (Mo.App.1984); Tomlinson v. O’Briant, 634 S.W.2d 546 (Mo.App.1982); Leventhal v. Leventhal, 629 S.W.2d 505 (Mo.App.1981).

However, under current practice the father and mother often are not the only parties to the issue of child custody. For example, in this case, the decree of dissolution placed the children in the custody of the grandmother. At that time, the provisions of § 452.375 included the following:

“The court may award joint physical custody or joint legal custody, or both, to both parents or sole custody to either parent, or, when the court finds that each parent is unfit or unable, and that it is in the best interest of the child, then to a third party.” § 452.375.3 RSMo 1986. (Emphasis added.)4

This is a codification of previously recognized authority. State ex rel. Dubinsky v. Weinstein, supra; In re Marriage of Campbell, 685 S.W.2d 280 (Mo.App.1985); In re Marriage of Garner, 651 S.W.2d 564 (Mo.App.1983). Under the statute cited, an award of custody to a third party should have been based upon a written request.5 Such an award should be followed by a written acceptance and acknowledgement of the decree. However, an actual exercise of custody can constitute such an acceptance and acknowledgement. In either manner, the third party becomes a party to the action on the issue of modification of the custody decree.

“Thus, although grandparents, or other third parties have no standing to litigate either custody or visitation where they claim such standing on the basis of actual custody unsupported by any de-cretal rights ... trial courts nonetheless have authority to place children with third parties when the natural custodians, the parents, are unfit or unable to undertake that custody. When so decreed, the third parties become the legal custodians.” Warman v. Warman, 496 S.W.2d 286, 289 (Mo.App.1973). (Emphasis added.)

As a general rule, the death of a co-party does not cause an action to abate. 1 Am. Jur.2d, Abatement, Survival, and Revival, § 49.

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794 S.W.2d 321, 1990 Mo. App. LEXIS 1251, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carter-v-arnett-moctapp-1990.