author: RUARK, Presiding Judge.

text:
    Rev. George MILLS, William Trentham, Sadle A. Trentham, Dillard Rhodes, Cora Rhodes and Lona Douglas, Plaintiffs-Respondents, v. Rev. Jeff YOUNT, Lafe Shrum, J. C. Shrum, Charlie Sitze, Perry Logan Krekel, Bessie Shrum, Lillian Sitze, Millie Russell, Jo Ann Long, Lorrine V. Krekel, Amanda S. Shell and Nora Shrum, Defendants-Appellants.
    No. 8366.
    Springfield Court of Appeals. Missouri.
    July 6, 1965.

      William H. Frye, Vogel & Frye, Cape Girardeau, for defendants-appellants.
    Paul A. Mueller, Jr., Jackson, for plaintiffs-respondents.
   RUARK, Presiding Judge.

There is trouble in Plainview Church. Five members of that church and a nonmember pastor have sued twelve of their brethren, including a trustee, a deacon, and a pastor, because they charge that the defendants are “adhering to a different faith than the Congregational Methodist Church” and are using the church property in violation of the eleventh edition of the constitution and government of that church. Defendants’ cross-bill alleges that they adhere to the original faith and doctrine and that the plaintiffs have adopted and adhere to a faith which is new and different. The circuit court enjoined the defendants “from using the said building and grounds, in any manner whatsoever, for any religious purpose or meeting.” Defendants have appealed. We do not have the benefit of any determination of facts or conclusions of law.

The church was founded in 1876. In 1892, one Joseph Shrum and wife deeded a tract for a consideration of one dollar to “William L. Shrum, W. J. Patton, and Perry S. Aldrich, Trustees of the Congregational Methodist Church, known as Plain-view Church,” to be used as a church house site. In 1925 a deed of correction was made to trustees of “The Congregational Church known as Plainview,” the land to be used as a church site and a public cemetery without reversion. It is obviously a rural church and has been used as a place of worship by its congregation; but on occasions other denominations have used it (probably in connection with the public burying ground) for funeral services; and occasionally ministers from other denominations have assisted in church revivals. There are approximately seventy members, some of whom are the descendants of the original grantors. The minutes and evidence show the membership to have been sincere in purpose and devout in their religion; they worshiped together through the years in a spirit of brotherliness. They did not entirely bring this trouble upon themselves. Some of it “trickled down” on them. This requires some history.

The Congregational Methodist Church, or “The Congregational Methodist Church of the United States of America,” as it often designated itself in conference minutes, copyrights, and on the front pages of its published disciplines, was organized in Georgia in 1852. It split off from the Methodist Church because of dissatisfaction with the system of governmental and ministerial control. As its name implies, the local church had a congregational method of government and system of worship. The local congregation was largely independent. It called its own pastors and controlled its own property. Nevertheless it had a graduated, associated, connective link with other churches of that name and faith in that it sent delegates to a district conference. The district conference in turn sent delegates to an annual (analogous to state or territorial) conference, and the annual conference in turn sent delegates to a quadrennial general conference. This general conference had the power to decide certain appeals and questions of doctrine and to make general rules and regulations for the churches.

From the time we have any history (the earliest discipline we have in evidence is the sixth edition of 1898), the church had a constitution and government and twenty-five articles of religion. The constitution provided:

“This conference shall not change or alter any part of our Constitution, so as to do away or destroy our system of worship.
“It shall not change, revoke, nor alter our Articles of Religion. It shall not establish any new standard of doctrine contrary to our present existing and established standards.
“It shall not do away the privileges and rights of our ministers and members to trial by the church or committee; and also of appeals.
“The above restrictions shall remain inviolate.”

These provisions continued as inviolate until 1957-1960.

In 1941 there occurred a schism in the general conference which was held in An-niston, Alabama. The Reverend J. A. Cook, president of that conference, is referred to as being the leader of one group; the other was led or represented by the Reverend Marvin Sheffield and by W. J. Alexander, who was secretary of the conference. Sometimes this faction is referred to as “the Texas Group.” Without intending any implication, and only for the purpose of easy distinguishment, we will refer to the group which is identified with the Reverend Cook as the “Standpatters” and the group which is associated with the Reverend Sheffield as the “Innovators.” The parties spend much time and effort concerning the doings of the 1941 general conference (the last one held as a united church) in an effort to show “who walked out on whom.” It would appear that the brethren completely forgot the admonition of Paul the Apostle, 1 Corinthians, 1:10. The conference opened with a prayer and disagreement, and the disagreement continued. Obviously there was a behind-the-scenes struggle for control of the church organization. The secretary failed, or forgot, to bring the conference records to the assembly. The president insisted upon a committee to examine the credentials of delegates. This was strenuously opposed by the Innovators, the real reason being (from the testimony of Sheffield) that they were afraid the committee would eliminate all delegates who were favorable to and “did believe in the second work of grace.” The delegates were required to bring their credentials forward and lay them on the table, but the credentials never were checked because (according to the Stand-patters) the secretary put them in his pocket and they disappeared with him when the Innovators left the church and went to a church in nearby Blue Mountain. After a day ' of recesses, disagreements, and attempts to agree, the conference adjourned. At the commencement of the second day there was a discussion at the door. It was evident that there was an irreconcilable split and an “agreement to disagree.” The Standpatters refrained from participating until the Innovators could elect their own president and then leave. Thereupon the Standpatters resumed their business. It would be impossible to say which side had the majority of qualified delegates. The discipline in force at the time of the split was what is called the tenth edition. After this occurrence the Standpatters continued with the same tenth edition under the name or title “Congregational Methodist Church of the United States of America,” and the Innovators reprinted the tenth edition of the discipline and went forward with the name “Congregational Methodist Church.” The thing which is obvious is that there was no doctrinal split in the conference itself. Unquestionably doctrine and some change in the form of government was the impelling motive and cause behind those who were promulgating, manipulating, or contending behind the scenes; but, so far as the record shows, no such question came out for vote of the conference. It would appear that a fair portion of the delegates didn’t know what the fuss was about. To illustrate: One witness stated, “We thought it was the best for our church, them not knowing anything about it, we didn’t feel it was best to take our church in any squabble and stay neutral on this thing until it was settled and then we might take a stand.” Another witness said, “We had no part in the conference. We stayed mute.” The delegates from the Southeast Missouri Conference (to which Plainview Church belonged) were in the “mute” group.

Thus we have had, since 1941, two organizations professing the same doctrine and using the same discipline containing the Constitution and system of government and the same twenty-five articles of religion, but with different officers and, apparently, rather confused, different conference structures. The Standpatters continued with the same doctrine and government until they later issued an eleventh edition and finally a twelfth edition of their own. These editions retained the twenty-five articles of faith and contained very little change in government. However, in 1957 the general conference of the Innovators adopted a new discipline which is their eleventh edition and in the evidence is referred to as the “black book.” This new discipline, as we understand the evidence, became official and in force when it was printed and issued in 1960 or 1961. In this discipline were an added five articles of religion, making thirty in all, and it is this addition, the twenty-seventh article in particular, which is the basic cause of the trouble. This twenty-seventh article proclaims that “Entire sanctification is that second definite work of grace, subsequent to regeneration, whereby the heart of a justified person is cleansed from the original or Adamic nature, and is filled with the Holy Ghost. If we are able to interpret this addition (and we doubt our competency to do so but do our best from the evidence), it is based upon the belief the first work of grace comes with acceptance of Christ and repentance for sins, but that entire sanctification coming from the Holy Spirit as a second or additional work of grace is necessary to secure release from the sin common to all mankind. Thus, apparently, those who have received the second work of grace have achieved a spiritual superiority to those who have merely been “saved” by acceptance and repentance. We have searched the books for cases involving this doctrine and the only one we find which apparently touches it in some respects is Mt. Zion Baptist Church v. Whitmore, 83 Iowa 138, 49 N.W. 81, 13 L.R.A. 198. There, on occasions, it is referred to as “second blessing,” “holiness,” and “sinless perfection,” and such was held a departure from the accepted faith.

The Standpatters maintain that there can be only one work of grace, “by grace ye are saved through faith. It doesn’t say graces. It’s grace.” “I believe when a man is saved, he is saved. I don’t think he has to go back.” And counsel, who may perchance be a member of that group, argues that no member who has been saved can become “more holy” than -any other member who has received grace and salvation. We note in the preface to the reprint of the tenth edition (under which the Innovators were governed before their adoption of the new discipline) the statement: “[W]e are equal by creation, equal by preservation, and equal by redemption, and that all from the highest to the lowest, who are brought to a saving knowledge of the truth, are upon a principle of equality, required to comply with the same terms and conditions.”

The discipline in dispute, the so-called “black book” or eleventh edition of the Innovators, effectively cemented enforcement of belief in the second work of grace as required doctrine by provisions in respect to its ministers. We do not go into detail on this, but it would appear that ministers of the church, even though ordained under the original twenty-five articles, are not qualified to pursue their calling as minister to any flock in the church unless they accept the twenty-seventh article having to do with the second work of grace. It is obvious that some of them are not conscientiously able to do so. Hence they are, in effect, ex post facto excluded. Other changes in the constitution and government involve a tightening of control of membership and ownership of the church property in the conference. It is the contention of the Innovators that this right of control extends to property acquired by the local churches prior to this change in discipline.

It is the general rule that, in event of a schism in a church, the right to possession and control of the church property remains in that faction, whether majority or minority, which adheres to the faith, doctrine and established practices of the church as it existed prior to the division. 76 C.J.S. Religious Societies § 71b, p. 853. Boyles v. Roberts, 222 Mo. 613, 121 S.W. 805 (4); Montgomery v. Snyder, Mo.App., 320 S.W.2d 283(2); Mertz v. Schaeffer, Mo.App., 271 S.W.2d 238, 240; see Cantrell v. Anderson, Ky., 390 S.W.2d 176. Sometimes it is said, prior to the time the property was acquired. 45 Am.Jur. Religious Societies, § 67, p. 777; Trett v. Lambeth, Mo.App., 195 S.W.2d 524, 531; Henson v. Payne, Mo.App., 302 S.W.2d 44, 50; Fulbright v. Higginbotham, 133 Mo. 668, 34 S.W. 875, 877.

Usually the courts exhibit great diffidence in regard to determining a question of theology or doctrine. 76 C.J.S. Religious Societies § 86, p. 873; Trett v. Lambeth, supra, Mo.App., 195 S.W.2d 524(2); Olear v. Haniak, 235 Mo.App. 249, 131 S.W.2d 375, 381; Stone v. Bogue, 238 Mo.App. 392, 181 S.W.2d 187(3, 4). It is only where such determination becomes necessary in order to settle property and civil rights as distinguished from ecclesiastical rights that the courts will be concerned with doctrine, and then not in order to determine which is correct but only in order to determine which of the disputing factions adheres to the original doctrine. Boyles v. Roberts, supra, 222 Mo. 613, 121 S.W. 805(1); see history “Courts and Churches in Missouri” 1956 Wash.U.L.Q. 67; Annotation: 8 A.L.R. 105, 114 et seq.; Annotation: 70 A.L.R. 75; 3 St. Louis U.L.J. 304 (1954-1955); Smith v. Pedigo, 145 Ind. 361, 33 N.E. 777, 778, 44 N.E. 363, 19 L.R.A. 433, 32 L.R.A. 838. It is frequently stated, and is the general rule, that where the church has a connective association in an organization which has a judicatory to determine questions of doctrine within the framework of that faith, the courts will be bound by a determination of that body, prior to schism. Hayes v. Manning, 263 Mo. 1, 172 S.W. 897, 905; Barkley v. Hayes (W.D.Mo.) 208 F. 319, 332-333; Watson v. Jones, 13 Wall. 679, 80 U.S. 679, 20 L.Ed. 666, 676; Mack v. Kime, 129 Ga. 1, 58 S.E. 184, 24 L.R.A. (n. s.) 675, Annotation: 699; Brundage v. Deardorf (6th Cir.) 92 F. 214, 228-229; Kedroff v. Saint Nicholas Cathedral, 344 U.S. 94, 73 S.Ct. 143, 97 L.Ed. 120(13). But while the supreme judiciary of an organization has been said to be both legislative and judicial in respect to doctrinal matters within the basic faith of the church, we do not assent to the proposition that it can sit in solemn judgment to the exclusion of the civil courts as to its own acts (as affects civil and property rights), the effect of which such acts- are a departure from the essential denominational faith, and a diversion to another, different, and repugnant one, and by this means carry the property of one faith over to the other. See 45 Am.Jur. Religious Societies, § 68, p. 779; Mt. Zion Baptist Church v. Whitmore, 83 Iowa 138, 49 N.W. 81, 85, 13 L.R.A. 198; Smith v. Pedigo, supra, 145 Ind. 361, 44 N.E. 363, 366. For the right to religious freedom is not the right to steal churches. Schnorr’s Appeal, 67 Penn. 138, 5 Am.Rep. 415, 418.

Fortunately we, in this case, are spared an interpretation of doctrine to determine the added article concerning “the second work of grace” is fundamentally different from the doctrine of those who reject it, because the plaintiffs (Innovators), who believe in the thirty articles, in their petition assert that defendants (Standpatters), who believe in the original twenty-five articles and do not accept the additional five, have departed from the faith. They, as well as the defendants, recognize, as the evidence seems to indicate, that there is now a serious, fundamental, and irreconcilable difference in the two doctrines. It was apparently the underlying cause of the division of the “old” church. We have no hesitation, therefore, in saying that one group or the other has “departed from the faith,” as both pleadings suggest. The question is, which one? This involves a further inquiry into the history of what has happened since 1957 — 1960 with a view of determining whether the defendants (who still adhere to the faith expressed in the original twenty-five articles) assented to or accepted the thirty articles prior to the local schism or have “waived” any right to object. (See Hayes v. Manning, 263 Mo. 1, 172 S.W. 897 [13]).

Plainview sent delegates to and was therefore a member of the Southeast Missouri Conference. The Southeast Missouri Conference in turn sent delegates to and was a member of the East Tennessee Annual Conference. When it joined the East Tennessee Conference is not clear. It appears by the testimony of plaintiffs’ witness Sheffield that at some time — we do not know when — East Tennessee “came back to our group” (the general conference of the Innovators). And it is the contention of plaintiffs that this brought in the Southeast Missouri Conference, which in turn brought in the Plainview Church.

The constitution and government of the tenth edition provided that the same might be amended by the ratification of two-thirds of the district conferences. The evidence as to whether this change was ever so ratified is rather confusing and indistinct. Two of the national officers, the executive secretary, the Reverend Pitts, and the Reverend Sheffield, testified. Both refer to the new discipline as being the act of the general conference of 1957. Although the plaintiffs, through their officers, had access to the records of this denomination and the evidence of ratification, if such occurred, was peculiarly available to them (the Innovators) and obviously not to the Stand-patters, they neither produced such records proving the ratification (see Russie v. Brazzell, 128 Mo. 93, 30 S.W. 526, 528, for example) or made any statement how such ratification was accomplished; nor did they testify that there had been in fact a ratification by two-thirds of the district in accordance with the previous constitution.

On the other hand, a witness for Innovators, the Reverend James Mills, who identifies himself not as a national officer but as vice-chairman of the Southeast Missouri Conference, and who himself used the reprint of the tenth edition until 1960 or 1961, testified first that the new discipline was never presented to or voted on by the Southeast Conference. Then he testified, without giving the foundation for his belief or information, that such discipline was presented to and accepted by two-thirds of the districts. We are not entirely sure whether he meant that two-thirds of the districts actually voted favorably to the amendment or that such districts, by their delegates in annual or general conference, accepted the new discipline. The evidence does not satisfactorily establish that the discipline adopted by the general conference of 1957 was ratified in accordance with the previous constitution. One thing is •clear however: if the Southeast Missouri •conference ever voted on the acceptance of the new discipline, it did not accept it. But (regardless of whether the new discipline went into effect as a result of adoption of the general conference or as a result •of constitutional ratification) the plaintiffs contend that it has “automatically” become the doctrine required of the local congregations and that this local church is “automatically bound” under a sort of falling ■dominoes theory. It is apparent that some of the churches in the Southeast Missouri Conference are now using the discipline in •question. It is apparent that at least one, and perhaps others, adheres to the original twenty-five articles and uses the “old discipline.” The basic cause of this dispute is which discipline shall he used by Plain-"view.

At a conference (session) of the local congregation held on March 23, 1963, some of the members attempted to raise the question, and one member, himself an ordained minister, moved to withdraw from the church organization of the Innovators. The then pastor declared the motion out of •order. Then at least two other members, a deacon and a trustee, asked to speak and were refused. No vote was allowed on the ■use of the “black book” or the question of withdrawal.

At a regular meeting held on June 22, 1963, it became time to call a new pastor (to assume the ministry the following August), and the Reverend George Mills was elected by a vote of twenty-one to •three. Subsequently the defendants, or Standpatters, discovered that the Reverend Mills intended to use the disputed discipline (he subsequently testified that he was governed by the new discipline which contained thirty articles), and they published their own call for a special conference which was held in the church on August 10, 1963. This meeting was attended by more persons than voted, including the Reverend Mills who had been previously selected. The Reverend Yount was called as pastor by a vote of twelve to nothing. Thereafter the Standpatters held services in the church on the second and fourth Saturdays and Sundays of each month, for a total of five or six, until suit was filed and a temporary injunction was issued.

We have already stated that plaintiffs themselves contend the use of the (old) Standpatters’ discipline is a departure from the faith of the (new) Innovators’ discipline, and it follows that the two are in conflict. We accept the fact that they are basically repugnant views — as distinguished from differences in interpretation on minor points or “shades of opinion” which do not change the basic and fundamental faith. 76 C.J.S. Religious Societies, § 71, p. 853; see Russie v. Brazzell, 128 Mo. 93, 30 S.W. 526, 531-532; Montgomery v. Snyder, Mo.App., 320 S.W.2d 283; Mertz v. Schaeffer, Mo.App., 271 S.W.2d 238, 242; Mt. Zion Baptist Church v. Whitmore, 83 Iowa 138, 49 N.W. 81, 84, 13 L.R.A. 198; Barkley v. Hayes (W.D.Mo.) 208 F. 319. We have expressed considerable doubt as to whether the plaintiffs have shown that the new discipline was ever amended in accordance with the constitution. The question is then, did the belonging to a district conference, which at some indefinite time went into an annual conference, which at some indefinite time went into the general conference of the Innovators, constitute such a waiver, estoppel, or acceptance of a new doctrine promulgated by that general conference (see Hayes v. Manning, 263 Mo. 1, 172 S.W. 897) as to bind the defendants. Is the local congregation “automatically bound” by reason of having the connective thread of submission to ecclesiastical determination? We think not. We think this carries the theory of representative estoppel too far when a fundamental change in faith is involved.

We take it that some time after the division of 1941 the Plainview Church “joined” or was swept or dragged into the Innovators’ organization by reason of its connective representation. This, until the change of discipline became official, was still an organization proceeding under the same discipline and (officially at any rate) the same faith, with the same twenty-five articles. There is no showing of any waiver, assent, or consent to accept the change wrought by the additional articles. In fact, there was protest and dissent when it appeared in the local church; and that protest and dissent is the cause of this dispute. We think there was no implied assent by connective subjugation.

It seems evident to us that the defendants adhere to the “old” faith and that they have not departed from it by assent or consent to the adoption of the new, which, according to the parties pleading, is inconsistent with and repugnant to the old. The will of the full membership in the congregation has not been tested on this; so we cannot say whether defendants represent an actual majority or minority of the church. But, whichever they are, they are entitled to the possession of the church-house for religious services so long as they adhere to that established faith and practice.

We are required to render such judgment as we believe should have been entered. It is, therefore, our judgment that plaintiffs’ petition be denied and dismissed and that defendants have judgment on their cross-bill; and plaintiffs are, therefore, permanently enjoined from interfering with the defendants and those who may be associated with them in holding religious services in the church.

STONE and HOGAN, JJ., concur.


source: Caselaw Access Project

author: WOLFE, Judge.

license: Public Domain

text:
    Lois O. HARRIMAN, (Plaintiff) Respondent, v. John W. HARRIMAN, (Defendant) Appellant.
    No. 31589.
    St. Louis Court of Appeals. Missouri.
    May 18, 1965.
    Rehearing Denied June 21, 1965.
    Application to Transfer Denied Sept. 13, 1965.
    See also 393 S.W.2d 106.

      Joseph J. Howard, Kirkwood, Harry C. Avery, St. Louis, for appellant.
    Norman Bierman, Stuart M. Haw, Jr., Anderson, Gilbert, Wolfort, Allen & Bier-man, St. Louis, for respondent.
   WOLFE, Judge.

This is an appeal from a judgment modifying a divorce decree by increasing an award of alimony from $150 a month to $400 a month. In addition to increasing the alimony, the judgment which modified the decree also made an award of attorney’s fees and suit money.

The history of the litigation here involved started in August of 1944, when Lois Harriman brought suit against John W. Harriman for divorce. John W. Har-riman filed an answer and cross-bill, but later dismissed the cross-bill, and the cause was submitted to the court on the plaintiff’s petition.

On March 8, 1945 the court granted plaintiff a divorce, awarded her custody of the three children born of the marriage, and provided that defendant pay the plaintiff alimony in the sum of $70 per month and support money for the children in the sum of $95 per month.

The next step in the litigation occurred in October, 1946, when the defendant sought to have the decree modified by awarding the custody of the three minor children to him. In this action by the defendant the plaintiff also sought a modification. She stated that her oldest son, who had reached the age of eighteen, expressed a desire to live with his father, and that she was willing to abide by his wishes in the matter. She further asked permission of the court to keep the two younger children in Evanston, Illinois, where she then resided. On January 23, 1947, the motions were heard and the decree was modified granting custody of the oldest son to the defendant, and granting permission to the plaintiff to remove the two younger ones to Illinois. The support money for the children to be paid to the plaintiff was reduced from $95 to $70.

The next action taken was in 1952, when a motion was filed by the plaintiff to modify the decree by increasing the alimony award and the support money for the 16-year old son, who was the only remaining minor child then in her custody. This eventually reached the St. Louis Court of Appeals where, in Harriman v. Harriman, 281 S.W.2d 566, it was adjudged that the decree should be modified awarding plaintiff $150 a month as alimony and $125 a month for the support of the child. In January, 1957 the decree was again modified by terminating the allowance of $125 for child support upon motion of the defendant, as the child at that time had reached his majority.

All of the foregoing is but a prelude to the motion to modify the decree filed by the plaintiff in 1962, which we are here considering.

The motion alleged that the plaintiff had been in failing health for a period of several years, and that her physical condition has worsened and deteriorated to the extent “that she has been and is presently suffering from hypertension, gall bladder disease, diabetes mellitus and a heart ailment and disease diagnosed as angina pectoris, which conditions have become disabling, and that she has been ordered by her doctor to discontinue all work, and in fact is no longer physically able to work and to support herself.”

The petition further alleges “that defendant’s wealth and income has greatly and materially increased through inheritance and otherwise over the amount he owned and earned at the time the aforementioned allowances for alimony were made, and that the condition of the parties has changed by virtue of the facts stated.”

In the year 1952, when the plaintiff first sought an increase in the alimony awarded her, she had an income, exclusive of alimony, of about $3,700 a year. With the alimony of $150 per month awarded her by the order of this court, in Harriman v. Harriman, supra, she then had a total income of $5,500. The evidence, as it relates to her present condition, is that the illnesses from which she has suffered have grown progressively worse, requiring frequent medical attention with a continuing need for medicine and dietary foods. She is now unemployed and has no income except the $150 per month alimony. Her net worth was about $2,900, which was her equity in an old house in which she lived and attempted to keep boarders. The physicians who treated her said that she could no longer continue in the work she had been doing. She is not employed and, as stated, she has no income other than the $150 a month alimony.

The defendant testified that his gross assets, exclusive of gas, oil, and mineral rights on his Texas farm land, amounted to more than $168,735. The gas, oil, and mineral rights, excluded from the above sum, yielded him an income of $44,480 for the year prior to the hearing below. His net income after taxes for the year preceding the hearing was $40,575.68.

The appellant contends that the court erred in allowing alimony in the sum of $400 per month, and predicates his charge of error on the theory that there had been no substantial change in the circumstances of the parties since the last modification. It is asserted that the plaintiff’s unemployment is of her own choice and not due to ill health. For, this conclusion the defendant relies up*on a statement by a medical witness, Dr. Joseph D. Croft, who testified:

“I think she could handle a light job that didn’t require her to be on her feet all the time. I think she could. But, you see, most jobs have a lot of emotional stress unless you have some place where you are tucked away by yourself, you don’t have contact with people.”
He was later asked: “Q. Well, then, to summarize and to clarify this question of her working or of her job, I believe that you have stated why you do not recommend that she has any job at the present time and in the future if she works she should avoid contact with people; that she should be under no pressure or mental strain; that she should not work on her feet; that she should only work for short hours and that she should work close to home to avoid the physical exertion of getting to work; is that right, doctor ?
% 5¡í sfc jj«
“A. I think I have said all these things.”

This is certainly no evidence that a sixty-year old woman is voluntarily avoiding work. She had been asked to resign from the position which she held for many years because she could no longer do her work, and the fact that she might be physically able to hold some small hypothetical job is no evidence that such a position is available or that she would have the mental qualifications for the work if it were available. The physician who examined her at the request of the defendant stated that she suffered from high blood pressure and coronary insufficiency, with a history of diabetes. He said further that the condition of hypertension had probably existed for about ten years, and that the conditions were very progressive. He concluded by stating that she was in a dangerous physical condition.

This was adequate proof that there had been a change of circumstances as to the plaintiff’s condition since the modification in 1953. The evidence leaves no doubt about the ability of the defendant to pay the sum awarded. It cannot be said to be excessive since the annual sum of $4,800 which plaintiff would receive under the award is less than the $5,500 which she had in 1955. We considered that sum necessary then and awarded alimony in the sum of $150, so that with her earnings she would have an annual income of $5,500. Her needs are greater now, and her income will actually be less. We see no merit in the points raised in this respect. Other points raised in relation to the award of alimony are similar to those raised and fully disposed of by this court in Harriman v. Harriman, 281 S.W.2d 566. No purpose would be served by restating them.

The court also allowed attorney’s fees and suit money, and it is contended that the amount allowed is excessive. The plaintiff lived in Chicago, and her case was presented by depositions and interrogatories of considerable length. Numerous exhibits were also presented. Mr. Norman Bier-man, trial counsel for the plaintiff, testified as to the amount of time put in by him and by counsel in Chicago. He stated that the value of his services was $3,000. He introduced an itemized statement of the work which he had done and the hours devoted to it, which amounted to 96 hours over a period of 78 days. He also requested a fee of $1,543.75 for the Chicago counsel and the sum of $781.26 suit money that had been advanced. The defendant offered no evidence in relation to the value of the services rendered, and the court made an award of attorney’s fees of $2,700 for Mr. Bierman and $1,100 for Mitchell Davis, the Chicago attorney. It further awarded the sum of $750 suit money. The evidence supports the award, and the contention that it is excessive is without merit.

For the reasons stated, the judgment is affirmed.

RUDDY, P. J., and JAMES D. CLEMENS, Special Judge, concur.

ANDERSON, J., not participating.


text:
    Lois O. HARRIMAN, (Plaintiff) Respondent, v. John W. HARRIMAN, (Defendant) Appellant.
    No. 31643.
    St. Louis Court of Appeals. Missouri.
    May 18, 1965.
    Rehearing Denied June 21, 1965.

      Joseph J. Howard, Kirkwood, Harry C. Avery, St. Louis, for appellant.
    Norman Bierman, Stuart M. Haw, Jr., Anderson, Gilbert, Wolfort, Allen & Bier-man, St. Louis, for respondent.
   WOLFE, Judge.

This is an appeal from an order of the Circuit Court awarding alimony pendente lite, attorney’s fees and suit money. The motion for the allowance was filed after the defendant appealed from a judgment modifying a divorce decree.

The facts as they relate to the modification of the divorce decree are fully set out in Harriman v. Harriman, Mo.App., 393 S.W.2d 103, filed concurrently with this opinion. When the motion for alimony pendente lite came on for hearing below, the plaintiff’s attorney introduced in evidence the same depositions upon which the motion to modify had been tried. The same facts were therefore before the court, and will not be repeated herein.

The court sustained the motion for alimony pendente lite and awarded the plaintiff $400 per month, and also allowed $1,000 attorney’s fees and $350 suit money. It is from this order that the defendant prosecutes this appeal.

It is first contended that the trial court was without jurisdiction to grant alimony pendente lite, suit money, and attorney’s fees, as no divorce case was pending. It has been stated that while all motions to modify divorce decrees in any respect are in a sense a continuation of the original action, they are in fact independent pro< ceedings. The orders, decrees, and judgments upon the motion, in fact adjudicate new and different matters and rights without respect to the matters and rights adjudicated in the original proceedings. Simms v. Simms, Mo.Sup., 253 S.W.2d 814; Hayes v. Hayes, 363 Mo. 583, 252 S.W.2d 323.

A point similar to the one here under consideration was raised in Wonneman v. Wonneman, Mo.App., 305 S.W.2d 82. That case also was an appeal by a defendant after modification of a divorce decree, and we held that the Circuit Court had jurisdiction to hear and determine a motion for suit money and attorney’s fees at all times while the action is pending, and that so long as an appeal is pending the action is pending. Jones v. Jones, Mo.App., 164 S.W.2d 162; Fox v. Fox, Mo.App., 312 S.W.2d 362. The point, therefore, is without merit.

The second point is that the court exceeded its jurisdiction in that it overruled the mandate of this court in Harriman v. Harriman, 281 S.W.2d 566. There is no merit to this for, as stated above, the matter here under consideration involves an independent proceeding not covered by any prior mandate of this court.

It is also asserted that the court erred in considering the evidence presented at the trial of the motion to modify the decree in its trial of the motion for alimony pendente lite, suit money, and attorney’s fees. The defendant offered no evidence of any change in his financial situation, and it would be absurd to say that the court could not consider evidence which it had so recently heard in arriving at the sum to be allowed, pending the appeal from its order. White v. White, Mo.App., 313 S.W.2d 72.

One other point is raised, and this goes to the allowance of $400 per month alimony pendente lite, on the grounds that it is a duplication of the award made in the motion to modify. We cannot say that the court erred in allowing the $400 a month pendente lite, for at the time of the award there was an appeal pending in which the defendant sought to overthrow the decree as modified, and the plaintiff was entitled to support while her award was under attack. As we stated in Jones v. Jones, 164 S.W.2d 162, 1. c. 163:

“The necessity for the reservation of the power to grant alimony and suit money pending the appeal is due to the fact that it is the husband who ordinarily controls the purse strings; and were he not subject to be compelled to provide his wife with the means of prosecuting her own appeal where judgment goes against her, or of resisting his appeal when the judgment is in her favor, she would often be left in a helpless and defenseless condition, and without the means to protect her rights.”

However, in Harriman v. Harriman, involving the modification of the decree and decided concurrently with this appeal, we sustained the award of $400 per month alimony granted by the court on the motion to modify the decree. Since the plaintiff prevailed in that case, under our mandate she will be entitled to $400 per month from the date of the judgment of modification from which the defendant appealed. It is evident, therefore, that in view of the decision that we have heretofore made, an award of $400 as alimony pendente lite would be a duplication of allowances.

It is not contended that the suit money and attorney’s fees here allowed are excessive, and we therefore affirm the allowances for suit money and attorney’s fees, but reverse that part of the judgment awarding alimony pendente lite.

RUDDY, P. J., and JAMES D. CLEMENS, Special Judge, concur.

ANDERSON, J., not participating.


author: PER CURIAM.

text:
    In re M-.
    No. 8388.
    Springfield Court of Appeals. Missouri.
    June 29, 1965.
    Rehearing Denied July 21, 1965.

      George C. Baldridge, Joplin, for appellant.
    Dean Johnston, Dalton DeShazer, Joplin, for respondent.
   PER CURIAM.

This is a proceeding under Sections 211.441 to 211.511, RSMo (1959), V.A. M.S., in which the State sought to terminate the parental rights of the two defendants (now divorced) with reference to their five minor children ranging in age from 6 to 16 years at trial time. The trial court has entered a decree terminating the parental rights of both parents; the father alone has appealed, and we shall refer to him as the defendant. The cause is before us for review de novo, and, although we may not set aside the judgment unless it is clearly erroneous, it is our duty to make our own independent findings of fact and reach our own conclusions of law. Rule 73.01(d); Renfro v. Jackson County Juvenile Court, Mo.App., 369 S.W.2d 616, 621 [5, 6].

The action was begun by the filing of a petition by the Jasper County Juvenile Officer which, after reciting the names and ages of the parents and their children and alleging that the children were in the custody of the Juvenile Court, then stated as grounds for termination substantially all the reasons or grounds provided in Section 211.441. Among other things, the petition specifically alleges that “ * * * the parents have been found incapable and incompetent and there are reasonable grounds to believe that they will continue to be incapable of giving the children necessary care and protection. * * * ” The defendant filed a responsive pleading, answering the juvenile officer’s petition and praying that custody of the children be restored to him; in turn, the juvenile officer replied to this responsive pleading, specifically setting forth that “ * * * said [defendant] is presently suffering and for a long time in' the past has suffered from a mental disorder diagnosed as manic depressive reaction, manic type; that he becomes abusive and violent and strikes and abuses said children inflicting severe bodily injuries to them; that such assaults upon said children have been frequent and severe while said children were in his custody and that it would be extremely dangerous to said children to permit him to have custody of them and deterimental to their interests, moral, mental and physical.”

At trial time, the father was 45 years old and the mother was 38. They were married December 22, 1944, and are the parents of two girls, one 16 and the other about 6, and three boys, 15, 14 and 7. The mother was served by publication and did not appear at the trial. The State introduced a letter purportedly from her in which she advised the juvenile officer that she “ * * * [had] given this [litigation] quite a bit of thought and I believe they would be better off in someone else’s homes. So this is my authority for you to adopt them or whatever is best for them. * * * ”

The State’s proof was voluminous, and we will attempt here to present only a few of the incidents which were developed on the trial. One of these occurred while the defendant and his family were living in Coffeyville, Kansas, in 1960. Early in August 1960, the defendant reported to the Coffeyville authorities that his wife had been missing since July 27. The defendant stated to one of the officers that his wife was a “highly nervous woman,” and that she had left without giving any indication where she was going. A police investigation of the woman’s disappearance revealed that she and the defendant had quarreled on numerous occasions prior to her departure, and that they had quarreled violently shortly before she left. The neighbors appear to have been reluctant to discuss the matter, because they considered the defendant to be a physically violent man and they were afraid of him. Apparently the Coffeyville authorities took the matter seriously, for, in the language of the county attorney, “we drug ponds and rivers,” but the search was unproductive.

Where the wife went at this time, and her reasons for going, are somewhat obscure. Her conversations with the county attorney indicated that she had left home because she received a severe beating from the defendant, and that she went to Cincinnati where she worked in a children’s home. The defendant seems to believe that she was guilty of infidelity of some kind, and at one point in his trial testimony he accused his wife of living with a paramour during her absence, which extended over a period of some eight months. His explanation of his wife’s behavior is typical of his testimony upon the trial.

“q. * * * when you married your wife back in 1944, will you describe any defect * * * she had about her face?
A. Yes, she had a very badly deformed nose. In fact, it was so bad that, I liked her, but yet, I was ashamed of her.
Hi Hí ^ Hi Hi
Q. * * * What happened about your wife’s face in about 1959?
A. * * * through the years her nose * * * seemed to get worse. Her nose was very badly deformed. I was extremely ashamed of her.
Q. Would you say she was kind of an ugly duckling?
A. Yes, she was, but there was still something about her that I liked.”

The defendant then related that his wife had undergone a plastic operation on her nose. His testimony continued:

“Q. What kind of results did the plastic surgery have ?
A. The operation gave her the most beautiful nose and the most beautiful face that I have ever seen. She was perfect.
Q. They did a good job?
% ^
A. Yes, after that, naturally, she was about the most beautiful woman I ever laid my eyes on. I fell badly in love with her. From then on things were never the same. I don’t know what it was, she developed an independence * * * toward me, which I thought for the goodness that I had done and suggested that she had, why, it would always be different.
Q. What did she start doing?
A. Well, she started — she was getting independent, and then, she started paying a lot of attention to men and flirting with them.
>jí jj? íjí í{t
Q. She started having interest in other men. What happened after that * * * p
A. Well, it got worse and worse and she just plainly started running around with other men and it just got worse and worse.”

In any event, the wife did not return until March 1961, and in the meantime the defendant was left with their five children, the youngest of whom was about two at the time. The eldest daughter C-, who was 13 then, undertook to do the housekeeping, and it was at this time that the “Crisco can” incident occurred.

As this episode was related by the children, the defendant and his eldest daughter had gone to do some marketing, and J-, one of the older boys, was left in charge. There was a carnival or fair in town, however, and J- did not remain at his post. When J-did return, the defendant struck him a number of times and, according to the eldest daughter, “pushed his head into a Crisco can.” J-’s explanation was that “he [defendant] started to swing at me * * * and I ducked and hit the Crisco can.” The defendant denied any brutality. J-received a cut on his forehead which required treatment at a local hospital, and consequently the defendant was charged with assault upon his own child. When the defendant was tried for that offense, the children testified that J-received his injury as the result of an accident, and the defendant was acquitted. On this trial, the children testified that the defendant had coached them in their testimony at that time and had threatened them with violence if they did not obey his instruction and testify that J- received his injury as the result of an accident. In any event, J-still has a visible scar over his right eye as a result of this incident.

For reasons not clearly shown, but apparently because of the repeated incidents involving physical violence inflicted upon his family, the defendant was committed to the Osawatomie State Hospital on September 29, 1960, for psychiatric examination and observation. Though the nature of the proceeding by which the defendant was committed is not apparent, it does appear that the defendant remained at Osawatomie for some three months, during which time he received electric shock therapy. Records produced at this trial show that the defendant was then classified as a manic-depressive psychotic, manic type. The defendant’s description of his treatment in the hospital was that “I took shock treatments, which is about like setting you on fire with electricity, and that is what brought me out of this black out that I was in * * The children were committed to the Kansas juvenile authorities and placed in foster homes, and upon the defendant’s release from Osawatomie they were eventually returned to his custody.

In March 1961, the defendant’s wife returned to the family home “because she missed the kids so much,” and acting apparently upon the defendant’s assurance that he would not mistreat her again. However, on April 14, the wife appeared in Coffey-ville Memorial Hospital, severely beaten. Photographs taken of the defendant mother at this time and introduced in evidence show extensive bruises about her head and face, but reveal no discernible defect scar or other post-operative mark upon her nose. The upshot of this incident was that on April 19, 1961, the defendant was convicted of assaulting his wife and was sentenced to serve one year. The wife testified at the trial that the beatings and violence had become a regular part of her life; according to the record evidence, she testified at that time that the defendant quite often beat her, knocked her to the floor and slapped her back and forth across the face, and that almost any trivial incident would provoke these attacks. The defendant would then become extremely remorseful and would lie upon the floor and cry. In this instance, the defendant did not altogether deny that he had become violent, but his version of this assault was that he had surprised his wife while she was conversing with her paramour over the telephone and that he “ * * * finally lost control * * * and I reached out and grabbed her and put my hands at her throat and I shook her hard. * * * ” The defendant was paroled after serving approximately two months of his one year sentence, and was recommitted when he again assaulted his wife, in public, early in September 1961. The defendant then remained incarcerated until February 1962, when he was again paroled. While the defendant was incarcerated, his wife finally obtained a divorce and was awarded custody of the children.

The day before the defendant received his second parole on February 3, 1962, his wife departed from Kansas and went to Arkansas, taking the children with her. Though again the record is not entirely clear, it seems that the defendant and his wife again became reconciled and removed to Jasper County, where they appeared sometime in March or April 1962. Here we lose track of the wife and mother. According to the defendant, she remained in the family home for a short time, deserted him, returned again, and again departed. All that the record shows with certainty concerning the mother, after the family settled in Jasper County, is that the defendant again assaulted her violently and was charged with and convicted of assault in municipal court at Joplin.

Since the family’s arrival in Jasper County, the defendant has been involved in one episode after another arising out of some violent act inflicted upon some member of his own family or some other person, and he has, the evidence shows, shown most unconventional and erratic behavior toward members of the opposite sex. One of the more spectacular incidents presented by the State occurred on October 26 or 27, 1962, when the defendant had a “date” with a young married woman, described as being under 20 years of age. As the incident was related by C-, the defendant’s eldest daughter, the defendant and the young woman appeared at the family home early in the evening with the young woman’s baby. C- was left in charge of the baby and the defendant and the young woman left to enjoy the evening. “Around 12 somewhere,” the two returned to the defendant’s home intoxicated, and the defendant refused to return the young woman to her home. The young woman, afraid that “mother [would] be worried,” awoke C- and requested permission to use an automobile. Locating the keys to the automobile, the young woman left. The defendant, aroused by her departure, became angry and inquired of C- where the keys to the automobile were. Receiving no satisfactory response, and becoming thoroughly enraged, the defendant began striking his daughter with his fists, and finally struck her with a piece of a dresser which he had demolished looking for the keys. C-was obliged to flee from the home and take refuge with neighbors. Photographs of C- taken at the time indicate that her left eye was severely bruised and that her eyelid was cut. One of the neighbors stated that her face was bleeding shortly after the incident. It has been stipulated that the defendant was convicted in municipal court of common assault upon his daughter, and that he pleaded guilty to that charge. Following this incident, the children were placed in a foster home by the Jasper County juvenile authorities.

On another occasion early in 1963, the defendant was observed driving north of Neosho, weaving back and forth across the center line, at approximately 1:00 A.M. He was stopped by a member of the State Highway Patrol, who testified that he smelled alcohol on the defendant’s breath, and that the defendant’s reason for his had driving was that he was attempting to make love to his female companion while he was driving his automobile. In the course of his conversation with the trooper, the defendant became excited and threatened one of the juvenile authorities in Jasper County and the attorney who was representing him at the time. Neither were immediately involved in the traffic incident.

On another occasion, the defendant was “using bad language” in the presence of a young woman at a bar near Joplin and precipitated a fight with the young woman’s companion. During the course of the fight, he threw a chair at one of the waitresses in the bar and injured her. A number of other such incidents were established by the State’s evidence.

Though our independent review of this case has convinced us that the cause must be reversed and remanded, we wish to be perfectly clear in saying that we agree it is imperatively necessary that custody of all these children be and remain with some person or agency other than the defendant. Not only does some of the defendant’s conduct — such as bringing his teen-age “date” into his home intoxicated — appear to be morally indefensible, but he has cruelly abused these children, and they are entitled to the intervention and protection of the State. Indeed, nothing else appearing in the record, this evidence would be amply sufficient to sustain the order terminating the defendant’s parental rights. Nor do we consider it desirable that the defendant be advised where the children are being kept or be granted visitation privileges at the present time. Such considerations are somewhat extraneous in this case, however, for these proceedings do not really involve urgent problems of custody or juvenile court supervision of the subject children; all that needs to be accomplished along those lines can be, and apparently has been, done under the provisions of Section 211.-181. It is pleaded that the children are and for some time have been wards of the juvenile court, and they can be made subject to the supervision of the juvenile court and taken from the custody of the defendant without termination of the defendant’s parental rights.

Both the State and the defendant have argued the cause here upon the merits. The State argues that “the evidence shows without contradiction that [defendant] is suffering from a nervous disorder, and that the safety and lives of the children would be endangered if they were returned to appellant.” The defendant’s argument is that although he has “gone through terrific emotional, psychological, and physical problems * * * [he] has recovered.” The parties’ common ground is, and we agree, that during the period covered by the evidence there has been a pronounced cast of irrationality to much of the defendant’s conduct. After showing outright brutality to his wife, for example, the defendant would be “very remorseful * * * and [would] lie on the floor and cry about it.” The defendant’s wife, in a letter to the juvenile officer, stated that “ * * * I have known for 18 years that he [defendant] is definitely a mental case. * * * ” The defendant’s eldest daughter, in the course of her examination, was asked:

“Q. Do you feel that your father is mentally upset and disturbed?
A. Yes, I do. * * *
Q. Do you feel that he needs help of some kind?
A. Yes, I do.”

The State’s evidence also included proof that in 1960 the defendant was confined in a mental hospital for some three months, at which time he received electro-shock therapy, and proof by a qualified clinical psychologist that in December 1962 the defendant was a “severely emotionally disturbed individual who’s [sic] judgment and reasoning are * * * impaired at this time. * * * ” This same psychologist indicated that the defendant’s disorder — if that is the proper term — is a “psycholeptic type of mental disorder. It comes and it goes.” (Our italics.) There are many other evi-dentiary details which, in the light of this evidence, indicate that the defendant is suffering from some kind of mental illness of considerable degree. The defendant himself testified that in May, June and July 1963, he was still receiving psychiatric treatment from a physician in Tulsa.

The question which presents itself, of course, is whether the defendant has really had his day in court. We think he has not, for want of a guardian ad litem or other representative, but we wish to be clear in stating our reasons, and as precise as possible in limiting our ruling. In the first place, the court is under no duty to inquire, initially, into the competency of the parties before it. Smith v. Rabb, 95 Ariz. 49, 386 P.2d 649, 654 [20, 21]; Engelbercht v. Davison, 204 Iowa 1394, 213 N.W. 225, 228 [6]; 44 C.J.S. Insane Persons § 143a, pp. 306-307. As the matter is usually put by our cases, e.g., Hemphill by and through Burns v. Hemphill, Mo., 316 S.W.2d 582, 586-587 [10,11], there is a presumption of competency or sanity which obtains until evidence to the contrary appears. Nor do we suggest that mental illness automatically operates or would necessarily operate in this case to excuse the defendant from the consequences of his conduct. He has never been adjudicated an incompetent, within the meaning of Section 475.010, par. (3), and involuntary hospitalization and treatment for mental illness is not, under our law, an adjudication of technical or legal insanity, Williams v. Pyles, Mo., 363 S.W.2d 675, 678 [1]; Murphy v. Murphy, Mo., 358 S.W.2d 778, 781-782 [5]; the Kansas statutes under which this defendant was committed for treatment are very similar to our own. Our decisions also recognize that mental illness may co-exist with mental capacity. On the other hand, if it affirmatively appears that a party to an action, not in ward, is mentally ill or incompetent, then the court should inquire into his mental condition for the purpose of the particular litigation, so a guardian ad litem or other representative may be appointed to protect his interests. And we may observe that a guardian ad litem is not a mere figurehead, but is “required to take all steps reasonably necessary to protect and promote the interests of his ward in the litigation.” Hemphill by and through Burns v. Hemphill, supra, 316 S.W.2d at 587 [12].

Statutes providing for the termination of parental rights, at least as they were originally conceived, look to a final and permanent settlement of all problems of custody and supervision by a complete and final divestment of all legal rights, privileges, duties and obligations of the parent and child with respect to each other, and by replacement of the natural parent by another guardian or an adoptive parent. They are not primarily designed, as we have indicated, to deal with imperative problems of immediate custody or supervision, In re Zimmerman, 206 Cal.App.2d 835, 24 Cal.Rptr. 329, 334 [2], nor are they punitive in their nature. The finality of the proceedings and the high importance of procedural safeguards for the rights of the parents are expressed in the statutes. Our examination of the legislative history and background of the termination statutes convinces us that, while it is not in terms required, the framers of these statutes contemplated that a guardian ad litem would be appointed for the parent if his (or her) incompetency positively appeared to the court. It may also he appropriate to note that while a judgment rendered against an incompetent or insane person is not void, it is voidable on direct attack, and a judgment rendered against a mentally incompetent person, after suggestion of his incompetency and without the appointment of a guardian ad litem, “would smack of legal, if not actual, fraud.” Graves v. Graves, supra, 255 Mo. at 483, 164 S.W. at 501.

We do not say that evidence of some past mental illness or emotional disorder on the part of one or another parent would always and inflexibly require the appointment of a guardian ad litem in a termination proceeding. Kennedy v. State Department of Pensions and Security, 277 Ala. 5, 166 So.2d 736, 739 [6]. This is not a case, however, in which the trial court might merely have suspected from the defendant’s behavior, conduct or testimony that he was somewhat unbalanced, nor even a case in which there was simply evidence of past hospitalization, which might have raised some sort of presumption of continuing mental illness. Murphy v. Murphy, supra, 358 S.W.2d at 782. In this case, the State affirmatively pleaded in its petition that the defendant was incompetent, and the written social investigation and report required by Section 211.491 and filed by the juvenile officer suggested the defendant’s erratic emotional condition and anti-social behavior, and appended a description of manic-depressive psychosis as a disease characterized by the very conduct of which the defendant was accused. In answering the defendant’s responsive pleading, the State affirmatively alleged that the defendant was "presently suffering * * * from a mental disorder.” (Our emphasis.) We consider these pleadings and this report a strong suggestion of mental disorder on the part of the defendant, if indeed the necessity for the appointment of a guardian ad litem depends upon affirmative suggestion — a proposition which we accept with some reserve.

The end result here is unsatisfactory, both from the viewpoint of the State and the defendant. We have no doubt that this family situation has created a social problem of the first magnitude for the responsible authorities who have had to deal with the defendant and his family. Apparently the defendant has not only neglected and abused his family, but has harassed and threatened the officers themselves in the performance of their duties, and we do not minimize the difficulties of the case from their standpoint. However, a judgment rendered upon so strong a suggestion and evidentiary indication of mental illness cannot have the attribute of finality which is desirable as far as the State is concerned and for which the statute calls. So far as the defendant is concerned, the State is exercising what has aptly been called an “admittedly awesome” power, In re Johnson, 9 Wis.2d 65, 100 N.W.2d 383, 390-391 [16], and he is entitled not only to every procedural safeguard for his rights as a parent, but to the right and benefit of a defense made by a competent person, “either himself recovered, or a guardian.” Murphy v. Murphy, supra, 358 S.W.2d at 781 [1]; Gibson v. Pollock, supra, 179 Mo.App. at 191, 166 S.W. at 875 [3]. We therefore conclude that the decree must be reversed and remanded to the end that a guardian ad litem may be appointed, both to prevent injustice to the defendant and to the end that the State may obtain a final and permanent decree, if the evidence warrants it. Cf. Williams v. Pyles, supra, 363 S.W.2d at 678-679 [7-10]. It is so ordered.

All concur except STONE, J., not participating.

      . All references to statutes and rules are to RSMo. (1959), V.A.M.S. and V.A.M.R., unless otherwise noted.

      . In re Burgess, Mo.App., 359 S.W.2d 484, 494 [5]; In re Halamuda, 85 Cal.App.2d 219, 192 P.2d 781, 784-785; In re Miller, 40 Wash.2d 319, 242 P.2d 1016, 1018 [6, 7]; see Anno., 41 L.R.A.(N.S.) 564, 591-592 VII.

      . McElroy v. Lynch, Mo., 232 S.W.2d 607, 514; Audrain County v. Muir, 297 Mo. 499, 511-512, 249 S.W. 383, 386 [8]; Forbis v. Forbis, Mo.App., 274 S.W.2d 800, 807 [22]. Cf. State ex rel. Standefer v. England. Mo.App., 328 S.W.2d 732, 736 [8].

      . Williams v. Pyles, supra, 363 S.W.2d at 678-679 [7-10]; Murphy v. Murphy, supra, 358 S.W.2d at 781 [2]; Graves v. Graves, 255 Mo. 468, 480-482, 164 S.W. 496, 500 [5, 6]; Bensieck v. Cook, 110 Mo. 173, 183, 19 S.W. 642, 644 [5]; 44 C.J.S. Insane Persons § 143a, pp. 306-307. See Anno., 71 A.L.R.2d 1247, 1260-1261, § 3 (1960).

      . U. S. Dept. of Health, Education and Welfare, Social Security Adm’n., Children’s Bureau Pub. No. 394, Legislative Guides for the Termination of Parental Bights and Responsibilities, and the Adoption of Children, pp. 9-10, 19-20 (1961) (hereinafter cited as Guides). See note, Wis.Stat.Ann. § 48.43. Our statutes are drawn from the so-called “standard act” suggested by the Guides and the Wisconsin law. We acknowledge here the assistance of the General Assembly’s Committee on Legislative Research.

      . See Guides, p. 9.

      . Section 211.611 provides that “ * * * [t]he order [of termination] shall be conclusive and binding on all persons and in all proceedings after one year from the date of its entry.” Section 211.441 requires that the grounds for termination be established by “ * * * clear, cogent and convincing evidence * * * ”; Section 211.471 provides that the parents are entitled to counsel upon the hearing; and Section 211.481 provides for a jury trial, if demanded in writing.

      . The termination statutes, as originally drafted for the 1957 session of the General Assembly, contained such a requirement. See also Guides, supra, n. 5, at 6, and the Wisconsin statute, W.S.A., § 48.42(2).

      . Williams v. Pyles, supra, 363 S.W.2d at 678 [2]; Annos., 140 A.L.R. 1336 I (1942); 34 A.L.R. 221 I (1925).

      . Williams v. Pyles, supra, 363 S.W.2d at 678 [4]; Murphy v. Murphy, supra, 358 S.W.2d at 781 [2]; Graves v. Graves, supra, 255 Mo. at 482-483, 164 S.W. at 501; Bank of Skidmore v. Ripley, Mo.App., 84 S.W.2d 185, 187 [2]; Gibson v. Pollock, 179 Mo.App. 188, 191, 166 S.W. 874, 875 [2-4]; Anno., 35 L.R.A. (N.S.) 1090, 1095-1097 VI (1912).


author: L. F. COTTEY, Special Judge.

text:
    SOUTHWESTERN BELL TELEPHONE COMPANY, (Plaintiff) Appellant, v. Hershel WEBB and Helen Webb, his wife, Fred Melton and Tina Melton, his wife, John Mothershead, Richard M. Secor, Sr., and Martha Secor, his wife, James A. Montgomery, Jr., and Catherine Montgomery, his wife, Jefferson Trust Company, a corporation, trustee, and Gravois Bank, Cestui que trust, (Defendants) Respondents.
    No. 31958.
    St. Louis Court of Appeals. Missouri.
    June 15, 1965.
    Rehearing Denied July 13, 1965.
    Application to Transfer Denied Sept. 13, 1965.

      Samuel Richeson, Dearing, Richeson, Weier & Roberts, Hillsboro, John Mohler, and Leo E. Eickhoff, Jr., St. Louis, for appellant.
    Thurman, Nixon & Smith, J. W. Thurman, Hillsboro, for respondents.
   L. F. COTTEY, Special Judge.

Respondents are the owners of a tract of land platted, but not otherwise developed, as a residential subdivision of eighty-eight lots in the rapidly expanding Maxville community in Jefferson County. Appellant has acquired by condemnation an easement over a 1-rod wide strip along the entire southern boundary of the tract for the purpose of constructing an underground communication system “consisting of underground cables, wires, conduits, surface testing terminals, markers and other necessary appurtenances,” and for the purpose of entering thereon whenever necessary “to construct, operate, maintain, inspect, replace and remove” the paraphernalia comprising the system, and to keep “the surface and sub-surface of said strip” free from all obstructions that might interfere with its use. Promptly upon acquiring the right-of-way appellant buried on it, to a depth of forty inches, a cable consisting of 600 separately insulated copper wires, of such complexity that two man-days are required to splice it at any given point.

The evidence on the issue of consequential damages was to this effect: At a point about midway on the southern boundary of the subdivision respondents’ plans called for the construction of a sewer lagoon having a surface area of 1.42 acres, the minimum required by law for the service of eighty-eight family dwellings. The topography of the land is such that this is the only feasible location for it. Even so, as originally planned, it would have been necessary to excavate as far as practicable into an adjacent hillside, and to use a portion of the bed of a nearby creek, in order to obtain an adequate floor for the basin. The backslope of the lagoon dam would then have rested on the southern boundary line of the property. In addition, since the creek provides the drainage for the area, use of its bed would have required the concurrent excavation of a diversion channel to take its place. Only in that manner could a lagoon of the required capacity be constructed. The diversion channel must be excavated to a depth below the 40-inch level at which the cable lies buried. That project, as well as the construction of the dam, requires the use of heavy machinery which, from its own weight or from the inattention of the operator, is likely to cause the cable to be damaged, and for that reason it would be imprudent to operate it on the right-of-way strip; as one witness put it, “I wouldn’t dare.” Accordingly, it has become necessary for respondents to revise their original plans so as to relocate the dam one rod back from the south property line (and apparently enough more to allow for a new method of diverting the surface drainage) thereby narrowing the lagoon and reducing its surface area to 1.16 acres, sufficient only for the service of eighty-three family units. The remaining five lots will, therefore, have to be supplied with septic tanks at a cost of $700-$750 each. This, in addition to the fact that the fronts of nine lots abutting the south property line are traversed by the right-of-way. Estimates of the overall damage to respondents’ property resulting from appellant’s appropriation and use of the easement ranged from $500 to $20,000. The jury settled on a figure of $3,500.

Appellant complains of the admission of all the evidence relating to those consequential damages. Its objections are premised on the proposition that in its original petition (and in an amendment which the court allowed on the eve of trial) it had entirely extinguished the necessity for any revision of respondents’ plans for developing their subdivision, and virtually every other prospect of damage to it, by inserting a number of “reservations” to respondents, the effect of which the trial court misunderstood, the benefit of which respondents rejected, and the value of which the jury ignored; all to the end that the verdict was unconscionably excessive. The reservations giving rise to these reproaches are as follows:

(a) That respondents might “freely use and enjoy their interests” in the strip condemned — “insofar as the exercise thereof does not endanger or interfere with the construction, operation and maintenance of said communication system, or create a hazard thereto”;

(b) That respondents might “cultivate and grow crops” on the condemned strip;

(c) That respondents might erect buildings thereon — “with the written consent of plaintiff”; and,

(d) That respondents might use the easement area “for the backslope of the lagoon dam * * * and * * * for a drainage channel for surface waters.” This latter concession is accompanied by the promise that “the Telephone Company shall bear any expense of adjusting or lowering its communication system so as to permit the construction of the drainage channel.”

We pause to notice, and to emphasize, the fact that in this case the pleading of the reservations was allowed; respondents’ motion to strike them for indefiniteness was overruled. Moreover, appellant was permitted to hypothesize a most optimistic appraisal of their extent and utility in the examination and cross-examination of every witness who testified on the issue of consequential damages. The same interpretation of their scope and nature was submitted to the jury by appellant’s Instruction P-2 which listed the reservations and told the jury to bear them in mind in assessing the damages to be awarded. In all those respects appellant could not have been more generously treated. On the face of the record, therefore, it seems hardly appropriate for appellant to argue that all of its “claims of error turn upon the proposition as to whether or not plaintiff had the right * * * to restrict defendants’ damages” by setting up the reservations. That right was freely accorded and fully exercised.

What appellant is actually contending for is: That the pleaded reservations were so definite in terms and so generous in scope as to eliminate the necessity for any change in respondents’ plans for construction of the sewer lagoon and diversion channel, and hence to preclude the allowance of any damages claimed on that score and, indeed, to foreclose all inquiry into that subject, as a matter of law. We cannot agree. In the first place, appellant did not ask to have the issue of consequential damages (or the objectionable aspects thereof) withdrawn from the jury’s consideration in the trial court; on the contrary, by Instruction P-2 it submitted the reservations to the jury in terms, admonished the jury to hear them in mind on the question of damages generally, and thereby invited the jury to treat as an issue of fact the very proposition that is now urged upon us as a question of law. Appellant must be held on this appeal to the theory on which it submitted the case in the court below. Johnson v. Duensing, Mo., 332 S.W.2d 950, 957. In the second place, although it is a question of law as to whether the pleaded reservations constitute a limitation of the taking to some degree, and hence reduce to some degree the damages to which the condemnee is entitled, nevertheless, if after the pleading of them there remains a reasonable doubt as to their extent and effect, that question must he submitted to the jury as a question of fact because it is fundamental to, and inseparable from, the issue both as to the value of the rights taken and the value of the rights retained, which the jury is obliged to resolve in order to arrive at an assessment of net damages. As said in St. Louis, K. & N. W. Ry. Co. v. Clark, 121 Mo. 169, 25 S.W. 192, 198, 26 L.R.A. 751, “Whether that (reserved) right diminished the damages to the adjoining land should have been left to the jury.” In other words, if the condemnor appropriates “less than the full rights available under the law * * * that fact is a proper element to consider on the issue of damages,” Union Electric Co. v. Levin, Mo.App., 304 S.W.2d 478, 483; it invites inquiry by the jury, it does not foreclose it. Finally, appellant’s proposition accords to the reservations in this case a more positive and beneficial effect than an impersonal analysis of their wording seems able to support:

Item: The decree authorized appellant to bury not only the existing cable hut such others as the future expansion of the system might require, and to “maintain, inspect, replace and remove” them as occasion may demand; to erect on the land all “surface testing terminals” and “other necessary appurtenances” (whatever that may include) that the operation of the system might ever require; and, in short, to do anything on and under the surface of the land that could contribute to the efficiency of the system or protect it from harm. “It is presumed that the appropriator will exercise his rights to the full extent.” Union Electric Co. v. Levin, supra, 481. Now to what extent are such comprehensive rights abridged by a reservation that permits the land to he used in such a manner as not to interfere with them?

Item: Circumscribed by that paradoxical limitation, the right is reserved to respondents to build their lagoon dam and diversion channel on the easement strip. But only at their peril. Observe that if the system is disrupted either by the initial excavations or by subsequent seepage from the lagoon or erosion by the drainage, respondents are no wise relieved of the burden of compensating appellant for the damage. Observe that if it should hereafter become expedient for appellant to dig up the dam in order to repair the cable or install “other necessary appurtenances,” no provision is made for the plight of the eighty-eight families who will be without a sewer during the interval required for completion of the project and the restoration of the dam to a functional state; nor is any notice taken of the likelihood that prospective purchasers of the lots, informed of the risk of being deprived of sewage disposal facilities at intervals in the future, might discover a certain cooling of ardor to acquire such an inconvenience. Much is made of appellant’s promise to “bear any expense of adjusting or lowering its communication system.” By whom is that work to be done? If by appellant, then with what litigious quibbles and delays in its execution? If by respondents, then with what litigious quibbles and delays in its reimbursement? Would anyone regard dependency on such a promise as a full recompense for the rights which respondents enjoyed before the strip was condemned ?

Item: Consider, objectively, the value of the right to “cultivate and grow crops” on the condemned strip. Might not a prospective purchaser, possessed of those faculties that reasonable men are supposed to exercise however feebly and languidly, ask himself whether the appearance of his property would be enhanced, or his investment brought to yield a more attractive return, by planting a 16i/> foot row of crops in front of his house?

Item: Consider, objectively, the substance of a reservation by which respondents are permitted to approach appellant for “written consent” to erect a building on the condemned strip. To put the shoe on the other foot, would appellant be content with a decree that authorized it to construct its communication system on the condemned strip subject to respondents’ right to give or withhold permission for it?

It is not the function of the court in a condemnation suit to work out a contract between the parties as to what each may or will do in the future, but only to assess the damages for what has already been done. The purpose of the action is to determine existing rights, not to promote future litigation. The language of the reservations in this case could hardly be more equivocal in terms, more illusory in meaning, or more impalpable in effect. And on this head it may be remarked that ambiguity has so often been the herald of delusion that appellant, having selected such an ambassador, ought not be heard to complain if the jury examined his credentials. We hold, therefore, that the pleadings did not preclude inquiry into the matters complained of; that the evidence to which objection was made was competent on the issue of respondents’ consequential damages, City of St. Louis v. Paramount Shoe Mfg. Co., 237 Mo.App. 200, 168 S.W.2d 149, 153; that it was properly argued to the jury; and that the verdict based on it was not excessive. Nor do we find reversible error in the answers of Witnesses Houska and Mothershead or in the admission of evidence of the sale price of the Wurtz tract, which assignments we have considered but deem it unnecessary to discuss in detail.

Appellant’s final complaint is predicated on the assertion that “not one single iota of defendant’s land was actually taken.” From that base it is projected that the court erred in instructing the jury, at respondents’ request, that in computing the net damages it “should ascertain the amount and reasonable value of the land actually taken and the damages, or decrease, if any, in the value of the remainder of defendant’s property as a whole,” etc. If no land has been taken, where is the cable? Where will its fellows be when the time comes to lay them? Where are the “surface terminals, markers, and other necessary appurtenances?” Is it to be supposed that to constitute an “actual taking” some portion of the soil must be removed from the owner’s premises? We think that to the extent the land is invaded and the owner’s proprietary rights in it are taken, the land is taken. 29A C.J.S. Eminent Domain § 110, p. 442, et seq. The instruction properly hypothesized the issue; it did not authorize an award of double damages; it did not conflict with Instruction P-2; it has been uniformly approved. Union Electric Company of Missouri v. Miller, Mo.App., 354 S.W.2d 341, and cases cited.

Finding no materially prejudicial error in appellant’s lengthy catalogue of assignments, the judgment is affirmed.

WOLFE, P. J., and ANDERSON, J., concur.