Leonard v. Leonard

• Citation: 401 P.2d 541,88 Idaho 485
• Decision Date: 27 April 1965
• Docket Number: No. 9480,9480
• Parties: Doreen K. LEONARD, In the Matter of the Adoption of Orval Kent Leonard and Teresa Ann Leonard, Minors, Plaintiff-Respondent, v. Jones Orval LEONARD and Anna Jane Leonard, Defendant-Appellants.
• Court: United States State Supreme Court of Idaho

Page 541

401 P.2d 541

88 Idaho 485

Doreen K. LEONARD, In the Matter of the Adoption of Orval Kent Leonard and Teresa Ann Leonard, Minors, Plaintiff-Respondent, v. Jones Orval LEONARD and Anna Jane Leonard, Defendant-Appellants.

No. 9480.

Supreme Court of Idaho.

April 27, 1965.

Annest & Hibbert, Burley, for appellants.

Church & Church, Burley, for respondent.

KNUDSON, Justice.

Appellant Jones Orval Leonard and respondent, Doreen K. Leonard, intermarried on April 9, 1953. Two children, named Orval Kent Leonard and Teresa Ann Leonard, were born the issue of this marriage. On December 19, 1961, appellant obtained a decree of divorce dissolving said marriage. In the divorce action respondent, Doreen K. Leonard, as defendant, was served with summons and complaint, but she did not enter an appearance therein and a defult decree was entered.

On June 3, 1962, appellants, Jones Orval Leonard and Anna Jane Leonard, intermarried. On March 14, 1963, they filed a petition for adoption by Anna Jane Leonard of the two minor children, Orval Kent Leonard and Teresa Ann Leonard. On March 15, 1963, and order of adoption was executed and filed by the judge of the probate court, Cassia County, Idaho, granting the petitioner's request for adoption. The adoption proceedings were had and order of adoption entered without any notice having been given to respondent and without her consent.

On July 31, 1963, respondent filed in the probate court of Cassia County, Idaho, her petition to set aside the order of adoption. After a hearing had on August 30, 1963, this petition was denied by order entered September 12, 1963. Under notice of appeal filed September 23, 1963, respondent appealed to the district court of the eleventh judicial district of Idaho from the order denying said petition.

The records disclose that at a pretrial conference held November 15, 1963, the parties, after presenting arguments, submitted to the district court the question of whether the order of adoption is valid since it was entered without the consent of the petitioner (Doreen K. Leonard) and without notice to her.

Under date of December 5, 1963, the district court entered its order setting aside the order of adoption issued by the probate court and declaring it to be null and void. This appeal is from said order.

Appellants' brief contains eleven assignments of error. Basically these assignments can be grouped into three principal contentions, to-wit: (1) the court erred in setting aside the order of adoption; (2) the court erred in ruling that respondent's consent was necessary to a valid adoption by appellant wife; (3) the court erred in ruling that notice to respondent of the adoption proceeding was necessary to its validity.

Appellants' contention that respondent's consent was not necessary to the validity of the order granting the adoption is based upon the provisions of I.C. § 16-1504, to-wit:

'A legitimate child can not be adopted without the consent of its parents, if living, nor an illegitimate child without the consent of its mother, if living, except that consent is not necessary from a father or mother deprived of civil rights, or adjudged guilty of adultery, or of cruelty, and for either cause divorced, or adjudged to be an habitual drunkard, or who has been judicially deprived of the custody of the child on account of cruelty or neglect. If it can be shown satisfactorily to the judge that the parent or parents have abandoned it, or if the father has unlawfully ceased to provide for its support, then it may be adopted by the written consent of its legal guardian or mother; if no guardian, then of its nearest relative; if no relative, then by the consent of some person appointed by the judge to act in the proceedings as the next friend to such child. The consent of a parent who is a minor shall not be voidable because of that minority.'

Appellants allege in their petition to adopt and repeatedly state in their brief that the decree which was entered in the divorce action prosecuted by appellant Jones Orval Leonard against respondent, was granted upon allegations and proof that the defendant (respondent) was guilty of adultery, cruelty and desertion. The decree does not state the specific cause or causes for which it was entered. It merely provides 'that the plaintiff have judgment and decree of this court in accordance with the complaint filed herein.'

The complaint referred to is not fully set our or contained in this record, however in appellants' Return on the Petition to Set Aside Order of Adoption' they have quoted paragraph V of said complaint which purports to be the charging part thereof. Said paragraph V alleges as follows:

'V

'[1.] That during the marriage of the plaintiff and defendant the defendant treated the plaintiff in a cruel and inhuman manner, that some of the acts of cruelty are as follows:

(A) That since December, 1959, and for at least six months prior thereto the defendant has engaged in numerous affairs with other men, some of which were in the presence of the above named children.

(B) That the defendant has refused and does now refuse to live with the plaintiff as husband and wife and to participate in those matters which are incidental of the marriage relationship.

(C) That the defendant has willfully deserted the household and family of the plaintiff and defendant.

'2. That the defendant has willfully deserted the home of the plaintiff and defendant and although the plaintiff has made repeated efforts to cause the defendant to return and live with him as husband and wife the defendant has refused.'

When the cause of adultery is relied upon for a divorce, such charge should be stated with sufficient definiteness and certainty as to the time and place as will enable the defendant to know what he will be called upon to meet at the trial. 17 Am.Jur., § 336, p. 499; Rice v. Rice, 46 Idaho 418, 267 P. 1076. No charge of adultery is alleged or mentioned in the foregoing quoted allegations which are clearly insufficient to support a decree of divorce on the ground of adultery.

Under I.C. § 32-703 the courts of this state are required to demand proof of the facts alleged before a valid decree of divorce may be granted. This court has announced that it is a matter of public policy that divorces, especially on the ground of adultery, should be granted only upon very clear and conclusive evidence. Brown v. Brown, 27 Idaho 205, 148 P. 45.

We have heretofore announced that adoption statutes which are open to construction and interpretation should be strictly construed and every intendment taken in favor of the natural parent not consenting to adoptions. Smith v. Smith, 67 Idaho 349, 180 P.2d 853. In this connection we call attention to the following quoted provisions of I.C. § 16-1504, to-wit:

'* * * except that consent is not necessary from a father or mother deprived of civil rights, or adjudged guilty of adultery, or of cruelty, and for either cause divorced, * * *' (emphasis supplied)

This section clearly requires that the parent be 'adjudged guilty' of adultery or cruelty before his or her consent is not required. In determining what is meant by the above italicized words, 'adjudged guilty of' as used in said statute we refer to the following definitions, to-wit:

'Adjudge--to pass on judicially, to decide, settle or decree * * *' Black's Law Dictionary, 4 Ed.

'Adjudge--to determine in the exercise of judicial power; to decide or determine judicially; to adjudicate, order or decree.' Webster's New International Dictionary, 2 Ed.

To adjudicate is 'to settle in the exercise of judicial authority. To determine finally.' Synonymous with 'adjudge' in its strictest sense. Haney v. Neace-Stark Co. (1923), 109 Or. 93, 216 P. 757, 219 P. 190; United States v. Irwin, 127 U.S. 125, 8 S.Ct. 1033, 32 L.Ed 99.

Nowhere in this record is there any showing that respondent has ever been adjudged guilty of adultery. The reporter's transcript of the testimony and proceedings has upon appellant's said divorce complaint is also a part of the record before us, and after careful examination we are unable to find therein any evidence whatever which can be construed as competent evidence establishing a charge of adultery. We therefore conclude that the divorce was not granted on the ground of adultery.

In an endeavor to ascertain which of the two remaining grounds, cruelty and desertion, was recognized by the court as cause for the divorce, we have considered both the complaint and the proof submitted in support of it. Three of the four subparagraphs of the charging part of the complaint allege desertion on the part of respondent. In the remaining subparagraph it is alleged that respondent engaged in affairs with other men. The record discloses that the plaintiff (appellant Jones Orval Leonard) submitted evidence in support of each of said allegations but it is impossible to determine which of the two alleged grounds the court considered as being adequately supported to sustain a decree. There is no finding that respondent was adjudged guilty of extreme cruelty.

The record before us does not disclose what proof was submitted to the probate court at the hearing upon appellant's petition to adopt. The record does disclose that appellant's petition was filed in the probate court of Cassia County on March 14, 1963, and the order of adoption was dated and filed March 15, 1963. Although under the order of adoption respondent is recognized as the natural mother of the children involved, no language is used therein which tends, in any respect, to explain why her consent to the adoption was not obtained or considered necessary. The burden of establishing that respondent's consent was not necessary rested upon the...