State v. Huhn , 346 Mo. 695 ( 1940 )

I dissent. The outright reversal of defendant's conviction is based upon a construction of Sec. 1362, R.S. '29 (Sec. 1362, Mo. Stat. Ann., p. 1579), in which I am unable to concur. The statute reads as follows:

"The father and mother living apart are entitled to an adjudication of the circuit court as to their powers, rights and duties in respect to the custody and control and the services and earnings and management of the property of their unmarried minor children without any preference as between the said father and mother, and neither the father nor the mother has any right paramount to that of the other in respect to the custody and control or the services and earnings or of the management of the property of their said unmarried minor children, pending suchadjudication the father or mother who actually has the custodyand control of said unmarried minor children shall have the soleright to the custody and control and to the services and earningsand to the management of the property of said unmarried minorchildren." [Italics mine.]

The State, as parens patriae, is authorized to legislate for the protection, care, custody, and maintenance of children within its jurisdiction. [27 Am. Jur., Infants, sec. 102, p. 823.] That the italicized portion of the section, supra, was enacted for the benefit and protection of children of broken homes, I entertain no doubt. The lawmakers knew of the confusion, uncertainty and disorder often attending the status of such children, and the resulting violence and breaches of the peace where, as here, one parent undertakes to enforce, extra-judicially, as against the other, what he or she conceives to be his or her rights in respect to the custody of their children. I think it was the intention to make provision for a more orderly state of affairs in such instances. This the Legislature did by providing that the father and mother living apart might have an adjudication of the circuit court not only with respect to the custody and control of their unmarried minor children, but also as to "the services and earnings and management of the property" of such children. The act then provides that "pending such adjudication the father or mother who actually has the custody and control of said unmarried minor children shall have the sole right to the custody and control and to the services and earnings and to the management of the property of said unmarried minor children." The principal opinion construes the words "pending such adjudication" to mean "from the time a proceeding is commenced for an adjudication until such adjudication is rendered." In other words, it interpolates and reads into the statute the words "during the pendency of an action or proceeding for" (such adjudication). To me this seems unwarranted. I think it is evident that the words were used in the sense of "while awaiting" or "until" an adjudication. This would effectively carry out the legislative plan in practical operation, and results as well from a consideration of the meaning of the language used as defined judicially and by the lexicographers. Webster's International Dictionary defines the word "pending" both as a preposition and as an adjective. The definitions are, respectively, as follows:

(Prep.) "a. During; through the period of continuance or indeterminancy of; as, pending the trial, suit, debate. b. Until; from the present time until the happening of, or the conclusion or completion of; as, pending the decision or negotiations.

"Syn.-Pending, During. Pending, as here compared, was in older usage synonymous with During; as During the trial, pending the trial. In modern usage, it more frequently has the sense ofwhile awaiting (an occurrence), until the conclusion of (an action); as, pending his return, pending the decision,pending the negotiations." (Adj.) "Hanging, overhanging; hence imminent or impending, not yet decided; in continuance; in suspense, as, a pending suit."

In Bagnall v. Travelers Ins. Co., 296 P. 106,111 Cal. App. 714, the court was called upon to construe the phrase "pending due proof of a claim." It was there said, "In modern usage, the word `pending' more frequently has the sense of `while awaiting' . . ." [Citing Webster's New International Dictionary.] And in holding such to be its meaning, the court said it did so without resort to a liberal construction, but by giving the word its ordinary meaning.

In Cincinnati, H. D. Ry. Co. v. McCullom, 109 N.E. 206,183 Ind. 556, Ann. Cas. 1917E, 1165, the Supreme Court of Indiana construed the meaning of the words "pending such appeal" appearing in a statute providing for the survival of certain causes of action. The holding is stated in the syllabus as follows:

"Burns" Ann. Stat. 1914, sec. 286, providing that, whoever has a claim for personal injuries obtains a judgment, and who dies pending the appeal or before a new trial after reversal, his claim may be prosecuted by his personal representatives, must be construed to mean that the action survives to the personal representative of a judgment plaintiff, dying while awaiting an appeal or during the continuance of the appeal, for the words `pending such appeal' must mean during the time before appeal,and while an appeal is impending, and the word `pending' meansduring the time intervening before, awaiting, until, . . ." [Italics mine.]

In Riggins v. Thompson, 71 S.W. 14, 96 Tex. 154, the Supreme Court of Texas held that where a district clerk was directed by the judge to cite defendants to appear on a named day to show cause why a permanent injunction should not be granted, and to issue a "restraining order to defendants . . . pending suchhearing," it was held to mean the same as if the words had been "until and pending such hearing," and "the intention was to limit the operation of the order until such time as the parties could be heard upon the issue . . ." [Italics mine.]

The principal opinion makes the point that the word "pending" as used in Sec. 1355, R.S. '29 (Sec. 1355, Mo. Stat. Ann., p. 1564) authorizing the court to "decree alimony pending the suit for divorce" is used in the same sense as in the statute here under scrutiny, and concludes that the construction contended for by the State "would authorize the granting of alimony before a suit for divorce was filed, which would be an absurd construction of the section." There is no similarity between the two sections, because it will be observed that the alimony section authorizes the granting of "alimony pending the suit for divorce in all cases where the same would be just, whether the wife beplaintiff or defendant . . ." [Italics mine.]

I do not think that failure, refusal or neglect on the part of either the father or mother, or both, when living apart, to invoke the jurisdiction of the circuit court for the purpose of the adjudication provided by statute, operates to suspend the provision giving exclusive right to the custody and control to the parent who actually has such custody and control. If this is not true, and under the holding of the principal opinion, it must follow that Mrs. Huhn has a perfect right to regain custody of her child by the same reprehensible means that led to defendant's conviction. Then he, in turn, would be authorized to retake the child, and this process could be repeated again and again, I suppose, until the child reaches its majority. I do not think the statute sanctions any such conduct, but on the contrary was directed at this very evil. It should be construed accordingly.Ellison, J., concurs.