In re: K.W. a minor, Karen Wheeler, Petitioner, v. Carol Cash, Respondent.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: In re: K.W. a minor, Karen Wheeler, Petitioner, v. Carol Cash, Respondent. Case Number: ED78127 Handdown Date: 07/05/2000 Appeal From: Writ of Habeas Corpus Counsel for Appellant: Leneigha Downs Counsel for Respondent: Terry Flanagan and John W. Peel Opinion Summary: This Court's writ issued on an original petition for writ of habeas corpus filed by Karen Wheeler ("Mother") seeking to obtain custody of her daughter, K.W. ("Daughter"). CUSTODY REMANDED TO MOTHER. Writ Division Two holds: Trial court order issued without notice to Mother and without a hearing purporting to grant temporary custody to a non-party was beyond its jurisdiction and void. Citation: Opinion Author: PER CURIAM Opinion Vote: CUSTODY REMANDED TO MOTHER. Crahan, P.J., Knaup Crane and Draper, III, JJ., concur. Opinion: Our writ issued on an original petition for writ of habeas corpus filed by Karen Wheeler ("Mother") seeking to obtain custody of her daughter, K.W. ("Daughter"). Daughter is presently in the custody of Carol Cash, a stranger to the dissolution proceedings between Mother and Charles Wheeler ("Father") which resulted in a decree awarding Mother and Father joint custody of Daughter. Father was awarded primary physical custody of Daughter in Missouri and Mother was awarded liberal visitation with Daughter including nine weeks visitation during the summer at Mother's home in Texas. (FN1)

On May 31, 2000 Carol Cash filed what is styled "Intervenor's Motion to Modify" in the Circuit Court of Franklin County.(FN2) That motion alleged that Daughter had resided with Carol Cash for the substantial majority of her life and that for various reasons, it would be in the child's best interests for primary physical custody to be granted to Carol Cash. That same day, Judge Jeffrey Schaeperkoetter, presiding judge of the Circuit Court of Franklin County, entered an order awarding temporary custody of Daughter to Carol Cash and prohibiting Mother from removing Daughter from the State of Missouri "subject to [Mother's] right to request a hearing as to her summer visitation." Insofar as we can determine from the docket sheets, such order was entered without the benefit of any hearing. It clearly was entered without any notice, inasmuch as the return of service upon Mother reflects that she was not served until June 13, 2000 and there is no indication of any attempt to serve Father. An order which purports to rule on a motion to modify without proper notice and without a hearing is in excess of the court's jurisdiction and void. ExParte J.A.P. 546 S.W.2d 806, 808 (Mo. App. 1977); In Re Lipschitz, 466 S.W.2d 183, 185 (Mo. App. 1971). Accordingly, it appearing from the terms of the decree that Mother is now entitled to nine weeks custody of Daughter at her residence in Texas, we dispense with further pleadings and remand custody of Daughter to Mother for exercise of her temporary custody in accordance with the terms of the October 22, 1999 decree. Footnotes: FN1. Mother and Father have three children, one of whom was declared emancipated in the dissolution decree. The decree contemplates that other child will reside with Mother in Texas except during Father's periods of temporary custody. FN2. The docket sheet gives no indication that Carol Cash ever filed a motion to intervene. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.