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

479 S.W.2d 167, 1972 Mo. App. LEXIS 960

• Court: Missouri Court of Appeals
• Decided: March 28, 1972
• Docket: Nos. 34181, 34484
• Status: Published

Opinions

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 (La-Gore 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 ha-beas 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 department. A person called a “homemaker” who helps with money management and housekeeping problems and instruction in the home has been a frequent and regular visitor in her home for four years. Her home was one of only three, in the homemaker’s experience, that had required her services for such a long period of time. Church and school attendance for the older children seems satisfactory.

A pediatrician called as a witness had seen the little boy March 22, 1969. He had chronically infected eczema. Continued medical care cleared up the eczema. He was also placed on allergy medicines and a diet. He gained seven pounds in about six months. When seen the first time, the little girl had a ruptured ear drum caused by an ear infection and seborrheic dermatitis. She also had a cigarette burn on her right arm. On March 3, 1970, the little boy was brought in by the father and grandmother, with first-degree burns on the lateral sides of his thighs. The burns were reported by the pediatrician to the juvenile court of the City of St. Louis. The mother seemed to call with the children at first, but after the first six months of 1969, the father and grandmother brought them in. At the time of the attendance of this witness, November 4, 1970, the children were: “Fat, laughing, skins clear.”

K.D.M., the putative father, lived with E.W., the mother, from February, 1967, until October, 1969, when they separated. Improper advances from another man precipitated the separation, but there were other causes. K.D.M. complained about the way his money was spent. Petitioner would buy “cold cuts and baloney and cookies and ice cream.” K.D.M., on the other hand, wanted her to buy “neckbones, beans, ham hocks * * * something that will last.” He had to borrow on his pay check to satisfy her overspending, which arose out of poor meal planning and improvident food purchases. She would not keep the house clean or cook. He further complained about her failure to launder dirty clothes for the children and inadequate care given them. When he separated from E.W., K.D.M. moved to his mother’s home. He would then pick up the two children and keep them on weekends under an arrangement that apparently caused no real difficulty until Christmas of 1969. He had them for Christmas day. He called before he took them back and found her ready to receive them. When he got to her apartment, no one answered. He then went to her mother’s place across the street, but no one answered, although he could see E. W.’s other children looking out the windows and laughing. He then went to the local district police station. A patrol car went back with him, but the only response was from E.W.’s mother, who told K.D.M. to take them back. She said her daughter, E.W., did not want them. In addition to his two children, K.D.M. had another of E.W.’s children with him, who was finally allowed to enter the grandmother’s house. Within a few days thereafter, K.D.M. went to the juvenile office and reported what had happened. This office wrote him at a later time to return the children, and this he did, on January 26, 1970. He then picked up the children, about March 1, 1970, and kept them until trial, except for about two weeks in June, 1970. His testimony indicated the petitioner wanted him to take care of them because they were too much trouble. Her testimony indicated a continuing desire and effort to regain custody.

K.D.M., after his separation from petitioner, lived with his mother and stepfather. He is thirty-four years of age. He works at a gasoline filling station, where he makes $130.00 per week. He drinks alcoholic beverages at times, was arrested for peace disturbance several times but never convicted. Married August 10, 1962, he separated from his wife that same year and has not lived with her since. They have no children. His mother and her husband live in Pagedale, where they are buying a home — four rooms, a basement and yard. The children have been living there since the father has had them. The three adult members of the household seem to have a complete understanding and harmonious relation in doing those things necessary for the welfare of the children. There is some one in the home at all times to care for them. The grandmother prepares regular meals and a special, non-allergic diet for the boy. She sees that they are kept clean. They are regularly taken to a pediatrician. The children have their own bedroom. They play in the basement and the yard. The environment, although not perfect, is much more conducive to their current well-being and good future training than that provided by the mother.

We concur with respondents that the court order remanding the children to respondent father was in their best interest and affirm the judgment of the court. In re R.D.H.S., Mo.App., 370 S.W.2d 661. The petition for writ of habeas corpus filed in this court should be dismissed.

After the judgment was entered, the court modified it on motion to allow partial custody to petitioner, E.W., on Wednesday of each week. No appeal was taken from this order, but it, like the other, may be modified from time to time as the needs of the parties and the welfare of the children require.

Because this opinion is contrary to ruling decisions of the Supreme Court of Missouri, as heretofore demonstrated, and for the purpose of re-examining the existing law which prohibits appeals in habeas corpus proceedings involving the welfare of minor children, we are transferring the two cases to the Supreme Court. We are aware of the concern of some of our brethren that recognition of such a transformation of a habeas corpus proceeding to an equitable child custody case may encourage some to take illegal physical custody of children to bring about a speedy adjudication on the issue of fitness. We further recognize that some of us have come to the conclusion that the use of a habeas corpus proceeding for the purpose of determining fitness should be denied those who, in a sense, by their illegal act, precipitate its use for their possible eventual gain. At the same time, we, as all our courts in the past, have a deep concern in the welfare of children who are our wards in proceedings where their interests will be affected by our judicial determination. We have therefore concluded that conversion of habeas corpus to equity should continue because: 1) the welfare of the child is our prime consideration, not the punishment of the one who transgresses the law; 2) the transgressor may be punished if he violates the criminal law or an order of court; 3) the conduct of those who transgress may be considered by the court, with the other evidence to determine best interest, in awarding custody; and, 4) habeas corpus may arise when a child is not carried off by an over-concerned parent or relative, as in the case of the death of one parent having lawful custody and an attempt by the surviving parent to take custody from others who have actually cared for the child and occupy in fact the position of its parents.

It is ordered that Case No. 34,181 and Case No. 34,484 are transferred to the Supreme Court of Missouri, for the purpose of examining the existing law.

BRADY, C. J., dissents in separate opinion of CLEMENS, J. DOWD and SIMEONE, JJ., concur. SMITH, J., dissents in separate opinion.

Commissioner when case submitted.