Lechliter v. Lechliter

667 S.W.2d 722, 1984 Mo. App. LEXIS 3653

Opinions

ORDER

Answer of Eddie J. Lechliter and reply of Evadeen Lechliter, now White, filed. Cause called and arguments of counsel heard. Pursuant to Rule 91.16, the Court had ordered that Bonnie Jean Lechliter not be present in Court.

After hearing, the Court finds the allegations of the Answer are insufficient to establish Eddie J. Lechliter’s right to present custody of Bonnie Jean Lechliter. The dissolution decree provides “that the care and custody of ... Bonnie Jean Lechli-ter is given to Evadeen Lechliter.” No modification of that decree has been made. Pursuant to that decree, Evadeen Lechliter, now White, is entitled to the custody of Bonnie Jean Lechliter. Habeas corpus is the proper remedy to enforce that custody. Where, as here, there exists a subsisting modifiable custody order the court does not review questions of fitness or welfare. In re L.G., 502 S.W.2d 33 (Mo.App.1973); In re R.L.K., 508 S.W.2d 232 (Mo.App.1974).

The Court orders the custody of Bonnie Jean Lechliter be returned forthwith to Evadeen White without prejudice to and pending disposition of Eddie J. Lechliter’s pending Motion to Modify the Decree of Dissolution. The parties’ attention is directed to the penultimate paragraph of In re R.L.K., supra.

g0 Ordered.

SMITH, P.J., and SATZ, J., concur. DOWD, C.J., dissents in separate opinion.