Opinion
No. 21044.
March 6, 1950.
Earl C. Borchers, St. Joseph, for Petitioner.
Strop Strop, William C. Cole, St. Joseph, for respondents Elviris E. and Matilda Seat.
This is a proceeding in habeas corpus instituted by petitioner to obtain the custody of her two minor children alleged to be unlawfully detained by respondents. Following the issuance of a writ to respondents they filed returns and petitioner filed answer. Thereafter, by agreement of the parties, the court appointed a Special Commissioner to receive and preserve the evidence upon the issues joined and to cause it to be returned to the court with findings of fact and conclusions of law thereon. The Commissioner has returned the evidence so received by him to the court, together with his report containing his findings of fact and conclusions of law. His report is adverse to petitioner who filed no exceptions.
However, we conceive it to be our duty to examine the record carefully and reach our own conclusion whether the report of the Commissioner is proper. For brevity, we quote the findings of fact and recommendation of the Commissioner:
"* * * Petitioner, Helen A. Seat, and Respondent, Lawrence L. Seat, were married on June 1, 1939; that prior to her marriage Petitioner was a school teacher in the rural schools of DeKalb County, Missouri; that she and her husband, Respondent, Lawrence L. Seat, moved to Inglewood, California, where each of the infant children, Gary Lawrence Seat and Darel Lynn Seat, were born of the aforesaid marriage; that subsequent to the birth of said children, Petitioner was admitted to an institution in California for the treatment of mental diseases; that thereafter, she was removed to Clay County, Missouri, and on August 30, 1944, was duly adjudged insane by the County Court of Clay County, Missouri, and was confined to State Hospital No. 2 at St. Joseph; that thereafter, on November 28, 1944, Petitioner was paroled and lived with her parents in DeKalb County, Missouri, and was finally discharged from said hospital on November 29, 1945; that there is no evidence of any hearing adjudicating Petitioner to have recovered her sanity; that on the 8th day of February, 1945, the Respondent, Lawrence L. Seat, and Petitioner's former husband, filed, in the Superior Court of Los Angeles County, California, a petition to annul the marriage contracted with the Petitioner, Helen A. Seat; that thereafter, and on September 4, 1945, said Superior Court of Los Angeles County, California, entered in said action a default judgment in which said Superior Court did adjudge and decree the marriage theretofore contracted between Petitioner and Respondent, Lawrence L. Seat, to be annuled; that in said proceeding no attempt was made to award the custody of said infant children; that thereafter, and on the 18th day of April, 1946, the Respondent, Lawrence L. Seat, was married to the Respondent, Fern Seat; that the said Lawrence L. Seat and Fern Seat are now living together as husband and wife; that each of said infant children, Gary Lawrence Seat and Darel Lynn Seat, are in the custody of the Respondent, Lawrence L. Seat, and have since the year 1944, been in said Respondent's custody; that presently the Petitioner is employed as a receiving clerk by the Capehart Hat Company of St. Joseph, Missouri, at a salary of $36.57 per week; that she owns no property, and lives in an apartment over a store in downtown St. Joseph; that the petitioner is not physically or mentally capable of caring for or of having the custody or control of said infant children, or either of them; that it is for the best interest of said minor children, and each of them, that their custody be retained by the respondent, Lawrence L. Seat."
We have read all the evidence introduced and are of the opinion that the findings of the Commissioner are abundantly supported by the record, and that the report should be affirmed. It would serve no useful purpose to recite the evidence in greater detail.
It has always been the law of this state that the award of the custody of minor children by the use of the writ of Habeas Corpus is of an equitable nature and that the courts will, in the exercise of their discretion, award the custody as the welfare of the children appears. Sec. 1659, R.S. 1939, Mo.R.S.A.; Campbell v. Campbell, 76 Mo.App. 396; Ex parte Badger, 286 Mo. 139, 226 S.W. 936, 14 A.L.R. 286; Williams v. Williams, Mo.App., 205 S.W.2d 949; Ex parte Schultz, 237 Mo.App. 1107, 180 S.W.2d 613.
It is, therefore, the order of the court that the custody of the minor children, Gary Lawrence Seat and Darel Lynn Seat, be and is hereby awarded to Respondent, Lawrence L. Seat, their father.
All concur.