State Ex Rel. Catholic Charities of St. Louis v. Hoester

494 S.W.2d 70, 1973 Mo. LEXIS 984
CourtSupreme Court of Missouri
DecidedApril 11, 1973
Docket58144
StatusPublished
Cited by19 cases

This text of 494 S.W.2d 70 (State Ex Rel. Catholic Charities of St. Louis v. Hoester) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State Ex Rel. Catholic Charities of St. Louis v. Hoester, 494 S.W.2d 70, 1973 Mo. LEXIS 984 (Mo. 1973).

Opinions

SEILER, Judge.

This original proceeding in prohibition was transferred from the court of appeals, St. Louis district, by our order on the application of relator, after an opinion by the court of appeals quashing its provisional writ. Jurisdiction being in this court by virtue of transfer, we decide the case as though it were here originally, Art. V, Sec. 10, Mo.Const., V.A.M.S.

The case was transferred because it, along with another original action in prohibition, State ex rel. Dzurian v. Hoester, 494 S.W.2d 67 (Mo.) handed down concurrently, involved important and unresolved questions of jurisdiction in adoption cases, the determination of which is of general interest and consequence throughout the state.

We likewise conclude the provisional writ should be quashed and acknowledge our indebtedness to Weier, J., the author of the majority opinion in the court of appeals, for much of the following.

Relator, a charitable and religious pro forma corporation, sought to prohibit respondent judge from proceeding further in an adoption case because of lack of jurisdiction. The return of the respondent admits all of the essential facts alleged in the petition and relator contends in its motion it is thereby entitled to judgment. We, therefore, review the facts alleged in the petition and admitted in the return.

R. K. J., the child who is the subject of the adoption proceeding, was born out of wedlock on December 30, 1965. Shortly thereafter the child’s mother petitioned the juvenile court of the city of St. Louis to transfer custody of the child to relator, among whose purposes is the care and placement of minor children, both for care and adoption. The court order, dated March 11, 1966, transferred custody of the child from the mother to relator for adoption and approved the waiver of consent executed by the mother. Even prior to the date of this order the actual custody of the child had been placed in the home of a married couple for foster care. This couple, hereinafter referred to by their initials, L. and A. W., had previously executed an agreement with relator wherein the agency agreed to make monthly payments for board of the child. The agency reserved the right to make other plans for the child, and L. and A. W. acknowledged the child was accepted by them for boarding care but that it was not available for adoption.

The years passed. Then on December 14, 1971, just before the sixth birthday of the child, L. and A. W. filed their petition for transfer of custody and adoption in the circuit court of St. Louis county, the county of their residence and the place where they had cared for the child. Relator filed objections based upon previous acquisition of jurisdiction by the St. Louis city juvenile court and moved the dismissal of the adoption petition. Thereafter, the judge of the St. Louis County juvenile court ordered temporary custody of the child in L. and A. W., determined he had jurisdiction, and overruled the motion to dismiss. Relator thereupon proceeded in prohibition.

Relator first contends that the St. Louis city juvenile court, once having acquired jurisdiction, thereby retained exclusive jurisdiction over the child and the St. Louis county juvenile court had no power to interfere and should be prohibited from so doing. It is generally true, as contended by relator, that where a court has once acquired jurisdiction in a case, either in personam or in rem, other courts may and should be prohibited from exercising any jurisdiction over the case. The court where the proceeding is first begun and where jurisdiction over the parties and the subject matter is first acquired retains exclusive jurisdiction. In such a case prohibition is the proper remedy to prevent encroachment or interference by a court of [73]*73coordinate jurisdiction with the power and authority vested in another. State ex rel. Buchanan v. Jensen, 379 S.W.2d 529, 531 (Mo. banc 1964); State ex rel. Standefer v. England, 328 S.W.2d 732, 735 (Mo.App.1959).

This is a case of adoption, however, and in such cases, when the court once acquires jurisdiction, as it did here with both petitioners and the child residing in St. Louis county, Sec. 453.010, RSMo 1969, V.A.M.S., it has exclusive jurisdiction over the child and its adoption, and the juvenile court of St. Louis city is without power to transfer custody during the pendency of the adoption proceeding, State ex rel. Grimstead v. Mueller, 361 Mo. 92, 233 S.W.2d 700 (banc 1950). See also In re Adoption of K., 417 S.W.2d 702, 707 (Mo.App.1967); State ex rel. Dzurian v. Hoester, supra.

Relator further contends that res judica-ta applies to the facts at bar so as to give the St. Louis city juvenile court exclusive jurisdiction, citing Norwood v. Norwood, 353 Mo. 548, 183 S.W.2d 118, 122 (1944) wherein the court said:

“Generally, in order to have estoppel by a former judgment (res adjudicata) there must be (1) Identity of the thing sued for; (2) identity of the cause of action; (3) identity of the persons and parties to the action; and (4) identity of the quality of the person for or against whom the claim is made . . .”

It is true the city court upon approving waiver of the necessity of consent by the natural mother to a future adoption did adjudicate custody in the sense of turning the child over to the agency for adoption, but this was not adoption. The proceeding in St. Louis county was a direct proceeding for the child’s adoption and even though there was a count in the petition seeking to have custody placed in petitioner, this was incidental to the adoption proceeding. Neither the judgment in the juvenile court of the county nor the judgment of the juvenile court of the city could act as a bar to the other since each was a proper order as to legal custody of a child, pronounced by the respective court when each had jurisdiction over the child. Custody is not a permanent status but may be changed by a court of competent jurisdiction when dictated by the needs of the child. The welfare of the child is the primary concern of the court, whether the court be in St. Louis county or the city of St. Louis. In re Shepler, 372 S.W.2d 87, 90 (Mo. banc 1963). When a child is properly before any court for any purpose and its welfare is involved, it becomes a ward of that court with respect to the issues of that case and that court has inherent jurisdiction to adjudicate custody as it deems will best preserve and protect the child’s welfare. This is the public policy of the state. State ex rel. Stone v. Ferriss, 369 S.W.2d 244, 249 (Mo. banc 1963). It is obvious that in the various cases which involve children, seeming conflicts may arise between courts when child custody in one case is changed from that adjudicated in another. But if a court has acquired jurisdiction over a child in a proper proceeding, then it has the power incidental to its jurisdiction to award custody as the welfare of the child dictates. Thus, in State ex rel. Dubinsky v.

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State Ex Rel. Catholic Charities of St. Louis v. Hoester
494 S.W.2d 70 (Supreme Court of Missouri, 1973)

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Bluebook (online)
494 S.W.2d 70, 1973 Mo. LEXIS 984, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-catholic-charities-of-st-louis-v-hoester-mo-1973.