*1 in a un- way is not case submitted Shirley ex rel. K. STATE Missouri doctrine, an issue der humanitarian INSKY, Relator, DUB have deter- shall not discuss because we authorize mined the evidence did not than on humanitarian submission. Other WEINSTEIN, Judge, Cir- Honorable Noah County, Juve- cuit Court the basis that she claims to Division, Respondent. nile submission, no makes humanitarian for new trial effort either in motion No. 52079. (point argument), her brief Supreme Court manner demonstrate how or what En Banc. instruction “limited and restricted” April 10, 1967. recovery, “prejudicial was rights,
harmful” or constituted the law.” We
“unauthorized declaration of
need not these consider further abstract in- argue does She
assertions.
struction was authorized
evidence, argument presented is but testimony, plaintiff’s “Under
present testimony proceeding, of both
plaintiff sister, Ev- and her Mrs. Ardene
ans, was that was defendant’s truck south Range Line crossing railroad
Road, 1,000 away well over feet from the plaintiff riding,
automobile in which
when the plaintiff automobile which
riding position stopped from a onto moved Line,
Range north, turned and was.there-
after struck from the rear defendant’s entirely
truck.” not agree We do evidence, plaintiff’s
this statement of but
accepting purposes it for the discus-
sion, ignores entirely previously
mentioned evidence offered defendant clearly authorized the instruction.
The court did not err giving No. MAI on right way.
The judgment is affirmed. PRITCHARD, CC,
BARRETT and
concur.
PER CURIAM: STOCKARD, opinion by foregoing
C., opinion of the adopted Court. and DONNEL-
EAGER, J., P. FINCH
LY, STUBBS, Special JJ., Judge,
concur. *2 relator. Shaw, Clayton, for M.
Charles Gold- Silverstein, & Rosenblum Merle L. respondent. enhersh, Clayton, for HOLMAN, Judge. prohibition proceeding in original
In this prevent relator seeks to Cir- Division of Judge County, from of St. Louis cuit Court relating upon a ceeding further daughter, custody of Ju- years of Dubinsky, child five dith Ann rela- had overruled respondent age. After attacking tor’s motion provision- our we issued in said cause upon petition of relator. al A. dispute. Harlan are not The facts Dubinsky, relator, Shirley K. Dubinsky and On Ann. are the Janu- Judith fil- petition for divorce ary Circuit ed an- filed an by Harlan. The relator main- swer and a cross-bill tenance. The divorce case was on heard child and of said the issue as to who is to 9, 1965, December custody. December 29 Respondent, and on have her the other plaintiff hand, was awarded a decree of divorce here contends that while the divorce and relator court has pertaining of matters Judith Ann, together a judgment against Ann as relates to Judith plaintiff per support. month custodial di- *3 $300 controversies between the The court found for parties, Harlan on relator’s juvenile juris- vorced the court has separate cross-bill for maintenance. supersedes diction under 211.031 which § paramount and jurisdiction to the timely Relator filed a motion new relating divorce court as to matters sepa- trial the issues of divorce and and care of said minor under 30, 1966, rate maintenance. On March provisions of said 211.031. motion for new trial con- was sustained parties. sent of the date On that relator dif- relates to in this case Our task prayed amended her cross-bill so cus- child concerning area of the law ficult separate divorce rather maintenance. fo- four are at least tody. There parties stipulation also entered into adjudi- custody may be in which child rums relating support and in event proceed- a divorce They (1) in cated. 1966, April 7, aof divorce. On relator was pro- 452.070; (2) habeas ing, § her divorce from Harlan on Duncan, Mo.Sup., S.W. ceedings, amended and the cus- cross-bill juvenile 1270; (3) 2d 4 A.L.R.3d tody Ann, temporary of of Judith court, Chapter of circuit division Harlan, visitation and was in the (4) and support per awarded month for the $300 situa- court, 475.120(1). In probate of said child. of conflicts inevitable almost tion it is develop. occasionally may jurisdiction 2, 1966, On March Harlan filed a com- that a contended it is before us case plaint in of the St. Division divorce developed between conflict County Louis and as a re- Circuit Court juve- City Louis and of St. court of thereof, by authority sult of County Cir- Louis nile of the St. division County, of Louis officer St. be- Specifically, cuit Court. date, petition on the same filed which After the circuit this: fore us is alleged he Ann resided in St. Judith judgment entered a case has divorce County Louis and was within she Ann as of adjudicating Judith applicable provisions of Section 211.0311 mother, does the father care, custody in that she “is without the circuit division of and treatment with a in accordance written jurisdiction have which lives county in she report contained court records.” so 211.031 to consider alleged re- further that her welfare within come that, Ann found to Judith quired immediately as- section, that court provisions of said A sumed court. was served summons to her relating acquire jurisdiction would and, attorneys stated, on relator un- continue which could care questioned jurisdiction of the court years age? See til becomes 21 §§ proceed in matter. For reasons 211.181. indicated, As appear, relator here contends that will hereinafter provisions Ann, upon entry properly coming divorce de- within the Judith cree, became a ward of the circuit court of of 211.031the supersedes paramount said court and that continuing which a exclusive over incidental statutory 1. All are to RSMo V.A.M.S. references Assembly have over the eral vested the parties. powers relating with broad neglected
delinquent children. Section vides: provides, part, Section 452.070 as follows: “When a divorce shall be ad “Except herein, provided as otherwise
judged, the court shall make such order court shall have exclusive * ** touching care, custody original jurisdiction proceedings: children, maintenance “(1) Involving any child who them, as, from the circumstances of county within the alleged who is case, and the nature of the in need of care and treatment because: ** arising be reasonable In cases *4 al under that statute the courts have been “(a) persons The or other adopt formulating most or unanimous legally responsible sup- general rule that child of “a minor port neglect of the child or refuse to divorced becomes the ward of proper support, vide education which is decree; grants court which required law, medical, surgical or court’s cus to determine where necessary well-being; other care for his tody the child go shall in such vests by parent, guardian reliance a others, court to the exclusion of all and con or upon custodian remedial treatment majority.” tinues until the child attains its surgical treatment than medical or Salkey Salkey, Mo.App., v. 80 S.W.2d for a child not neg- be construed as special 739. Where circumstances and ex lect recognized when the treatment is or traordinary appear the di reasons therefor state; permitted under the laws of this may vorce give refuse to or parent to either it third award to a The child is without “(b) otherwise party. McCoy Briegel, Mo.App., 305 proper care, custody support; or or Wakefield, S.W.2d In re 365 Mo. However, 283 only origi S.W.2d 467. an behavior, or “(c) The environment nal may modify file a motion to injurious associations of child provisions custodial divorce decree. others; welfare of his welfare or Neustaedter, Mo.App., Neustaedter v. [5], Also, S.W.2d 40 di it is settled that a vorce action abates the death of either “(d) alleged The vio- child to have party and in power that event the court’s ordinance; municipal lated a state law or completely over the of a child “(2) Concerning any minor seventeen Wakefield, supra; terminates. Schu years age or older be within Schumacher, macher v. Mo.App., 223 S.W. county, alleged and who is And, 2d 841 although habeas [9]. municipal violated ordi- a state law or may be resorted to in order enforce prior having nance become seventeen' custody provisions decree, a of divorce years age; may not, rule, writ general as a be em ployed to interfere with the “(3) suspension or For the revocation the divorce court to minor award authority of of a state local license Wakefield, supra. children. In un re The vehicle; operate a child to a motor exception usual creating circumstances an appear to that rule to have existed in adoption person; “(4) For the of a Duncan, supra. case of In re “(5) For the commitment of Chapter department various sections of 211 were of the public enacted in provided 1957 and are often referred health and welfare as as the new Act. Therein the Gen- law.” attempt jurisdiction upon
While we will not to review all of loses all the death of provisions chapter, perhaps party. elementary will either And it is helpful power once out that court would have the acquired may proper disposition until child make be retained child who years age, 211.041; that becomes 21 committed a crime or otherwise § finding court, upon delinquent. 211.181 the 211.031,has that the child comes within § powers relating almost unlimited unnecessary to ex consider care, physical custody, and mental examina- many opinion by pointing out the tend this tion and also treatment of the child. See in which other situations de- may modify And its 211.161. the court complete appropriate more order time, at cree 211.151. Section care, custody, and relief in relation to provides appointment should also of children. treatment per- judge in officer who shall assist the petition invoking noted that pow- forming exercising the his duties and officer; only he filed can ers of 211.041. court. See § in predominantly and the inclusive, 211.511, Under 211.440 to §§ than a contest quiry by the State rather power terminate parents seeking the vindictive child. rights of to a Various either *5 custody modi aor granting divorce decree also Chapter the juvenile of give
sections we situation that fication thereof. powers regard to court extensive legisla to the find it difficult to attribute de- custody found to be of children juvenile from ture intent withhold an to linquent. neg any jurisdiction with court to deal custody been lected childern whose gen that the are convinced We view adjudicated divorce court. Our juvenile the new assembly, enacting eral changed by not the declaration contained is of predecessor laws and of 1957 certain act “[njothing 211.051 that contained recognized other nature, a similar other deprives 211.011 211.431 sections to relating to the care procedures and laws legal courts of determine entirely custody of children were habeas custody of children writs of and therefore intended sufficient corpus legal or determine juris paramount juvenile legal or children when the of relat courts in matters over other diction guardianship is incidental to custody of children ing to the care and in other pending determination of causes Chapter provisions of coming within however, may be questions, courts. Such deficiency in 211. most obvious juvenile certified another court to the procedure is demon divorce recom hearing, court for determination or parent de where one strated think that section mendation.” We is family other serts enacted to that other courts clear make uncontested, divorce, often could continue to determine children without obtains the of past, but nothing we find indicate- perfunctory determination more than a give jurisdiction intent to courts those them. rear of said fitness juvenile exclusion of Thereafter, develops chil exercised in a case. neglected being reared dren improper indi Particularly other conditions view the enactment immoral or custodian,' depravity juvenile cating of their the new act of we have (except one the disinterested some there is no considered desirable review However, question presented. can file motion for defendant) who detail the Also, custody. change are not we hasten to out that we pointed already any out that divorce new formulating this state.
isa ap- forty years jurisdiction ago More this court without consideration of the proved ruling by the (at tacitly) juvenile least courts. Appeals, Kansas in a case previously have mentioned us, factually similar to the before one “ bemay petition invoking that a continuing
wherein
court said:
‘The
Upon
only by
juvenile officer.
filed
jurisdiction
granted
of a court
which has
filing
supervise
minor
provided by
court, it is
children of
inter-
cannot be
make
cause to
juvenile court
fered with
another court which
inquiry
determine
preliminary
made a
for such retained
would have
interests
whether the
facts and
authority under a writ of habeas
require action under
public
make
inquiry
grant
the same
211.031. Authorization to the
637, §
Pettit,
same
84 Kan.
relief.
only
permissible
officer
file a
court,
Mo.App. was 237 S.W.2d there no discussion of the rule of law involved respectfully dissent. I in judgment but the court did affirm a custody proceeding which the court made a that the discloses The record county disposition contrary pre- which was that court of St. in the also, complaint viously made in a See , decree. instituted the was be- Custody Mo. Law in Area of 27 divorce suit Child while a by the father cir- in the pending Law Review 11 A.L.R. parents Annotations tween the reviewing 147 and A.L.R. After Louis. 78 317. the of St. court of cuit Act, light the had awarded the new the divorce was after mother, and appropriate we deem the to adhere to of the child to the case, supra. on mo- pending rule stated in the Trimble divorce suit was while the quoted think father com- trial, the rule heretofore which that tion for new the the child plained states that the in has court that divorce cases in and treatment proper to determine care was without custody, thereby causing child “to the is exclusion of others” its mother’s very jurisdiction. general invoke its which was formulated Thereafter, juvenile proceed- and while the facts: this was initiated pending, the custody the divorce court sus- father after was awarded trial, mother; opposed by tained the motion for new heard evi- it is the mother suit, dence that awarded mother whose motion to juris- dismiss for lack of divorce, overruled, her again diction was awarded as result of sought prohibition; the child. she our writ-of petition being writ vigorously fact the record unmindful I am not opposed by opposition someone in in the divorce stipulated that present right mother’s so as awarded child be custody of the suit maintain, purpose, for some divorce. mother assumed court. These facts signifi- contrary, I consider this On toward father as real at- the father cant indication interest, not the state of with play loose tempted fast and a child custody fight pawn. If courts, the child as with purpose. truly sincere his father were proper care allegation without child was The main mother, he treatment is that the child is without juvenile court have, to, and should opportunity care, custody can- proper treatment and care, those facts to guid- presented evidence in her such receive home Instead, he continues divorce court. and control as will conduce ance issue insist, through welfare the best interests At least relitigated. allegations (1) are state. There no “ * ** the father it is otherwise without surface * * insist; care, he initiated support continues section torneys representing a ther’s spondent ceeding position here prohibition. the usual procedure person represent There is no rea- re- fa- at- welfare 211.031, “ * * [*] * * * subsection behavior * injurious * * 1(b); * * * welfare of or, * or associations (2) * * others,” [her] any different vio- (c); to believe subsection that she (3) son peti- prohibition usual respect law, from 1(d). lated subsection If this It would case, shows. so far as this record involved more tion respondent judge relitigate most for a unusual an effort father to *7 issue; hardly in- employ conceivable if it the mother counsel employ respondent counsel would of the volved an utter abandonment the continuance encourage his own to subsections or circumstances described continued litigation. possibly me father’s 1(c) (d), To subsection piquant subsection) harassment (b) (as insistence smacks of I understand that detriment possible parts 1(a), I concur mother to of subsection could child, improper majority. use in the result reached But, it, neither nor institut- proceeding as I see prosecuted father vigorously countenance. ed and court should day had his in court. principal Respondent contends expresses opinion the cave- majority are in a permit child; at that courts should and the state invoked when their to be one endeavor- one of the “reduce the case does not spouses controversy relitigate issue with parent, been court.” other where that relegated to the divorce should determined divorce court. What agree the state and child I majority opinion these not be ignore suggests should parties, but cannot formal me, permitted rec- is, exactly what respondent
ord shows has done.
words, respectfully I conclude put its deciding has in this
stamp says approval on that which
juvenile courts should not authorize.
Under the facts and circumstances record, I would hold that had and retains exclusive issue,
of the custody 'par- as between
ents; acted ex-
cess of jurisdiction. its It follows that I
would order prohi- our rule in
bition made absolute. Farris, FARRIS and
Leo Rosie Lee Appellants, HENDRICHS, Harper,
Adele H. Adrian W. Trustee, Sidney Kleg, Whelan, Marie Marbain, Respondents. and Gertie
No. 52123.
Supreme Division No. 2.
April 10, 1967.